Before embarking on a discussion about property in land, it just may be useful to understand the concept of land in the common law system. When a person holds an estate in fee simple in that land, how do we define what that person holds an estate in? Is land a field somewhere? Maybe. If so, how far down does the land go(1)? How high? What if there is water in the middle of the field? Is that water land? Recall the facts of Elwes v. Brigg Gas Co.(2) Workmen uncovered a part of the land that an expert in prehistoric artifacts would identify as a boat. The judge in that case held that either the boat was land or it was not land. The judge did not go any further as he held that the outcome would be the same in either case. We will go further in order to create a conception of land that can be understood.
We must make two assumptions for the purpose of this discussion of the concept of land. First, the land that is coincidentally shaped in a way that would make an expert on ancient artifacts identify a boat embedded in the land is, despite that expert's opinion, land. Second, when this particular portion of the land is detached from that land it becomes a thing that the expert will continue to call a boat.
Suppose a situation where a person goes to court claiming that he held possession of the thing in dispute; in this case a boat. The defendant, in our example, the estate holder, denies that the plaintiff holds possession of anything. His lawyer claims that there is no thing in which to hold possession. There is only land in which the defendant holds an estate. The judge accepts this position. Plaintiff loses.
Now suppose, one week later, the same parties are in court before the same judge. This time the plaintiff, our estate holder, alleges that he holds a form of property in the land that is shaped somewhat like a boat. The defendant denies that the thing shaped like a boat is land, and instead claims that it is a thing. The judge agrees; plaintiff loses.
There are several possibilities that might help explain these outcomes. First, one of the lawyers might be incompetent. Second, the judge might be wrong. Third, the thing that the defendant one week earlier had claimed was land is now in fact a thing. The first two we can dispense with rather quickly. Assume that both the lawyers and the judge are competent. So, we are left with only one option. The thing that exists today was not a thing last week. Given what we know about the common law, something must have happened that caused the thing to change from its former status as land.(3) Discovering what caused the change and exactly when the change occurred will help us define the concept of land in the common law system.
Workmen, in the course of excavating a hole six metres deep, come across a piece of the land that is shaped like a boat. Enter expert on ancient artifacts. He confirms that this oddly shaped piece of land just might be a valuable boat, but that before making a final decision he would like to see more.
Wanting to give the expert a closer look, the workmen dig the oddly shaped piece of land out of the dirt and raise it to the top of the hole. The expert, upon getting a closer look, states that it is his opinion that this is indeed an ancient boat. It is also his opinion that this artifact is worth a substantial amount of money.
The workman wants to possess the boat. It is rather large. To move the boat the workman employs a pilot and his helicopter to lift the boat from the land. The pilot attaches the boat and lifts it straight up to a height of 1000 metres.
Assume a trial immediately after time one. Enter estate holder's lawyer. What facts do you think that lawyer might want to know if he is to make a reasonably accurate determination of the outcome of either i) an action based on dispossession of a thing, or ii) an action based on trespass to land? Recall our assumptions. First, while the section of land that is shaped lake a boat is embedded in the land, it is land. Second, when that particular piece of land is detached from that land it ceases to be land and becomes a thing.(4)
The first fact that needs to be known is whether, at time one, the object that resembles a boat is embedded in that land, and is therefore land, or if it is not embedded in that land and is therefore a thing. To that end, the first question the lawyer might ask is; where is this object? Recall that at time one the object is at the bottom of a hole six metres from the surface of earth. This fact alone will not solve the problem. More is required.
Due to the nature of the concept of land below the surface of earth a small change in the fact situation is required for greater clarity. Assume the following aerial representation of the surface of earth.
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A holds an estate in land to the boundaries that are represented by imaginary lines on the surface of earth. Likewise for B. Assume that the hole in question starts in the land in which A holds an estate. The land that is shaped like a boat, according to the surveyor, is located six metres below an imaginary spot on the surface of earth that is within the boundaries marked on the surface of earth that measure the extent of land in which B holds an estate.
The most important thing that B's lawyer would want to know is what B did with his land. The question of whether the boat shaped land is part of B's land or other land depends on the answer to this question. Does , given B's use of the land, B make use of the land to the depth where the land becomes shaped like a boat.(5) For example, does B operate a mine in the land? Does B only use the land as a tree farm? In short, if the land in question is below the surface of the land at a depth that B does not make use of, it does not form part of that land. That is, the land in which B holds a form of property.
Now, assume a trial immediately after time two. The boat shaped object has know been uncovered and freed from the dirt. It is sitting on the surface of earth, within the boundaries of land in which B holds an estate. In order that the estate holder's lawyer can properly defend against a possible action he must come to a conclusion about whether the alleged boat is land or a thing.(6)
Recall our assumption. When the land shaped like a boat is detached from that land it ceases being land and becomes a thing. So, we are now back to the same question as in the previous example. Is the boat shaped object still embedded in the land? Given the same question, lets explore the outcome if we were to apply the same test.
Does B's use of that land include use of the part of land that is shaped like a boat? At time two the boat shaped land is sitting on the surface of earth. Assume that the boat shaped land, at its highest point, is one metre high. It would be hard to imagine a use of that land that would not include the space between the surface of the earth and one metre above the surface of the earth. For the sake of argument, assume that B has constructed a home on this land. Except in the oddest of circumstances, it seems that B is making use of that land.(7) That would lead use to the conclusion that the boat shaped object is still embedded in that land (8) and therefore remains that land.
Assume that the trial occurred immediately after time three. The boat shaped object, after being attached to the helicopter, is lifted from the surface of earth. At time [3A] the helicopter reaches a height of 20 metres. At time [3B] the helicopter reaches a height of 50 metres. At time [3C] the helicopter reaches a height of 1000 metres and proceeds, parallel to the surface of the earth, in a direction that will take the helicopter over the imaginary line drawn on the surface of earth that marks the extent of B's land. At time [3D] the helicopter crosses this line.
At time [3A] what facts would need to be known to come to a conclusion about whether the boat shaped land is still embedded in that land? We have had success with a test thus far, why not try it again? Is B making use of that portion of that land? One would then need to know the use B is making of the land. Assume that B has caused bumps of land to be formed that look identical to what a non-lawyer would call a house. Further, assume that the house is 30 metres high. It would seem that B is making use of that portion of that land.(9) Therefore the boat shaped land is still embedded in that land and is therefore still land.
At time [3B] the same issue arises. The boat shaped object is hanging 50 metres above the surface of earth. Assume that on the top of the house that A has constructed is a tower that extends 25 metres above the bump on the land. Again, B is making use of that portion of the land. Therefore, the boat shaped object is still embedded in that land and remains part of that land.
At time [3C] the boat is suspended 1000 metres above the surface of earth. B has constructed no further buildings. Recall our assumption. When the boat shaped object is detached from the land it ceases to be land and becomes a thing. Is B making reasonable use of the space where the boat is located at time [3C]? What further facts would need to be known to come to a conclusion on this question? Has the boat shaped land has become a thing?
Recall time [3B]. We came to the conclusion that B was making use of that portion of that land, therefore the boat shaped object was land. Assume that instead of flying away at 1000 metres, the pilot departed at 50 metres and headed in a direction that will take him across the imaginary line on the surface of earth that marks the extent of the land in which B holds an estate. At what point would the boat shaped object become detached from that land?
The conclusion is up to you. You may find assistance in your tort text under trespass to airspace and subsoil. Consider also things other than boats, such as deposits of coal or gold, oil or gas. By combining the assumptions and facts that have been given, you are now able to form a definition of land in the common law system. All that is required is some thought.
1. Keep in mind that we are talking about the legal conception of land, not any particular ideas that a geologist might have.
2. (1886), 33 Ch D. 562 (Eng).
3. Remember the rule; what was yesterday is today unless something happened to change that fact.
4. Consider a third possibility. Maybe the land shaped like a boat ceases being that land and becomes other land. Might this affect the concept of property in things?
5. It is important to note that "use" does not necessarily mean active use. A person that holds an estate in that land and simply decides to leave the land vacant is still nonetheless using the land. The estate holder is keeping the land clear from other uses.
6. Note that it would not be a very good idea to go to court prepared to prove that B holds possession of a thing if the alleged thing was actually land. One cannot hold possession of land. In the alternative, preparing a defence based on the fact that B holds an estate in fee simple in the land where the thing was located would not necessarily lead to the conclusion that B holds possession of the thing is question. Nor would the claim that one holds an estate in fee simple in a thing be greeted with much approval.
7. I will concede that, even with a structure that B lives in forming part of that land, B might not make use of the space in question. For example, a structure located six metres below the surface of the earth. How would this fact have changed the analysis as of time one? Would it?
8. Do not confuse the concept of land with the atomic structure of the land.
9. The test need not be the existence of structures that form part of that land. The key issue is whether or not the estate holder does, given the use that the estate holder makes of that land, make use of that portion of that land.