•    The maxim means that you own the land from the core of the earth to the heavens
o    Bury v Pope

Rights above the ground

Common Law

Have rights to ‘such height as is necessary for ordinary use and enjoyment of land and the structures on it’
•    Bernstein v Skyviews & General Ltd [1978]
o    Griffith J
o    FACTS
    -    Plane flying over property taking pictures
o    HELD
    -    Rights of owner restricted to airspace of such height required for usual enjoyment of land
    -    No trespass

Trespass if interference is at a height and of a nature that may interfere with any ordinary uses of the land which the occupier may see fit to undertake
•    Bendal Pty Ltd v Mirvac Project [1991]
o    FACTS
    -    City site developing to boundaries of land
    -    Mesh supporting the building and crane enter neighboring property
o    HELD - Injunction granted, work continued using different method which cost an extra 4.5 million.

•    Kelsen v Imperial Tobacco (1957)
o    FACTS
    -    Advertising sign encroaches into neighbours airspace
    -    No fear of damage or actual loss
o    HELD - Guilty of trespass

Under old title, if overstep boundaries, after 12 years you own the land
•    Could not happen under Torrens Title for small bits of land
•    Equity might grant you some relief, but problem under common law

Statute

Court has discretionary power to override common law and grant an easement so long as damages are paid
•    Conveyancing Act section 88k

Transferable development rights – subdivide airspace

•    C can sell airspace to builder A who can tack it onto his or her own land
o    Allows builder to build higher than they could before
•    Not an interest in land, and no proprietary rights are transferred
•    Allows heritage buildings which are protected a chance to make income
•    Unique to Sydney City in Australia, but prominent in other world cities

Rights under the ground

Common Law

•    Not fully tested at common
law

Interest extends deep enough to give rights over minerals
•    Wilkinson v Proud (1843)

Although, since 1884 NSW crown grants have reserved to the Crown minerals under the surface

American Case exploring this area:
Person who owns surface owns land itself, and everything above or below it which they may use, and which they may exercise control over.
•    Edwards v Sims(1957)
o    FACTS
    -    Entrance to cave on D’s land which runs deep beneath Ps land
    -    Too deep for P to access it on his land
    -    D explores and develops cave into tourist resort
    -    P brings trespass action
o    HELD - Was a Trespass. Direct application of the maxim
 
Building on the land of another

Encroachment of building legislation 1922
•    Allows courts range of options to deal with encroaching building
o    Discretionary power regarding compensation payable or relief granted if encroachment allowed to persist
o    Power to order demolition rarely exercised
    -    Only if construction deliberate
    -    Not if carelessness or mistake    
•    Only applies to buildings encroaching a boundary
o    Not to buildings erected wholly within the confines of one parcel of land
    -    Must rely upon common law or equity

At Common law, a person who through oversight or design, builds a house on the land of another makes it a free gift to the latter, and has no right to recover the benefit or the expenditure incurred
•    Brand v Chris Building Co [1957] VR
o    FACTS
    -    Person buys block of land in large estate and instructs builder to construct house
    -    House built entirely on another’s land
    -    True owner ignorant at the time
o    HELD - True owner has free house

Under law of equity, if true owner is aware of the error in building, and does nothing to stop it or encourages it, equity will not permit the true owner to assert his title to the land
•    Plimmer v Mayor of Wellington (1884)

If asserting true owners strict legal rights would be unconscionable, remedy moulded to best mirror merits of the claim in the circumstances of the case
•    Vinden v Vinden [1982]