Notable case law, land held in fee simple

Kelsen v Imperial Tobacco Co (of Great Britain and Ireland) Ltd [1957] 2 QB 334 — decided by McNair J in the Queen’s Bench Division of the High Court of Justice — established that any unauthorised intrusion into the airspace above land constitutes trespass at common law, however slight, unless justified by statute or licence. An advertising sign erected by the defendant projected approximately four inches into the airspace above the plaintiff’s leased premises. McNair J held the invasion was a trespass — not merely a nuisance — and granted a mandatory injunction for the sign’s removal, confirming that the airspace above demised premises passes with the lease as part of the parcels. The case is the modern locus classicus for the maxim cuius est solum, eius est usque ad coelum et ad inferos — to whomsoever the soil belongs, he owns also to the sky and to the depths. The qualification that a landowner’s airspace rights extend only to such height as is reasonably necessary for the use and enjoyment of the land and structures on it was subsequently introduced by Griffiths J in Bernstein of Leigh v Skyviews and General Ltd [1978] QB 479.

Bocardo SA v Star Energy UK Onshore Ltd [2010] UKSC 35; [2011] 1 AC 380 – decided by the UK Supreme Court – confirmed that a freehold owner’s title to land extends downward through the substrata indefinitely unless expressly severed by grant or statute. Star Energy drilled three deviated wells from a surface site outside the plaintiff’s estate, passing diagonally through the subsoil at depths of between approximately 800 and 2,900 feet beneath Bocardo’s land without consent or statutory ancillary rights. The Supreme Court held unanimously that this constituted actionable trespass. Lord Hope, delivering the lead judgment, confirmed that the ancient maxim cuius est solum, eius est usque ad coelum et ad inferos remains good law in England, qualified only by the practical requirement that it be read sensibly and not taken to extend literally to the centre of the earth. Star Energy’s statutory petroleum licence under the Petroleum (Production) Act 1934 provided no defence to trespass without the landowner’s consent or ancillary rights obtained under the applicable statutory regime. Notably, the petroleum itself was vested in the Crown by statute and was not Bocardo’s property — the trespass lay in the unauthorised drilling through Bocardo’s subsoil. The Supreme Court held by a majority of three to two that compensation was to be assessed on compulsory purchase principles, affirming the Court of Appeal’s award of £1,000 on the basis that the trespass, while actionable, was technical in its effect on the landowner’s enjoyment of the substrata.

Mitchell v Mosley [1914] 1 Ch 438 – decided by the Court of Appeal comprising Lord Cozens-Hardy MR, Swinfen Eady LJ and Phillmore LJ – established as a recognised principle of law that a conveyance of land passes not merely the surface but the whole substratum to the centre of the earth, including the surface and all that is above it — houses, trees and the like — and all that is beneath it — mines, earth, clay and the like — unless the conveyance contains something to the contrary. The principle applies to the construction of ordinary conveyances of freehold land absent express exclusion. It is subject to three categories of exception: alienation of the substratum or minerals by an express term of the conveyance; vesting by statute (including petroleum vested in the Crown and unworked coal vested in statutory authorities); and vesting at common law by Royal Prerogative (including gold and silver in mines). The case was expressly approved as good law by Lord Hope in Bocardo SA v Star Energy UK Onshore Ltd [2010] UKSC 35, where the Supreme Court applied the same principle to confirm that freehold title extends downward through substrata at depths of 800 to 2,900 feet, qualified only at the point at which physical conditions such as pressure and temperature render the concept of ownership so absurd as to be not worth arguing about.

Attorney-General v Tomline (1880) 14 Ch D 58, a Chancery Division decision arising from a dispute concerning the foreshore of the River Orwell adjacent to the Orwell Park estate in Suffolk, is cited as authority for the principle that the Crown’s presumptive title to the foreshore — being the land between the mean high water mark and the mean low water mark — may be rebutted by evidence of a grant or chain of title traceable to a Crown grant that expressly or by necessary implication conveyed the foreshore to a private owner. Where such title is established, the fee simple owner holds rights to the foreshore as against the Crown, subject to the public’s rights of navigation and fishing, which no private grant can extinguish. The precise terms of the judgment require verification against the primary text of the Chancery Division Reports volume 14 as the full text is not accessible in publicly available online databases. The general principle the case is said to represent is consistent with the established common law on foreshore ownership confirmed in subsequent authorities.

House of Lords / UK Supreme Court

Hunter v Canary Wharf Ltd [1997] UKHL 14; [1997] AC 655 – decided by the House of Lords on 24 April 1997 – established two propositions in the law of private nuisance. First, the House held unanimously that interference with television reception caused solely by the physical presence of a neighbouring building is not actionable as private nuisance, being equivalent to loss of a view or prospect for which no action has ever lain. Second, and by a majority of four to one — Lord Cooke of Thorndon dissenting — the House held that only a man or woman with a proprietary interest or a right to exclusive possession of land affected has standing to sue in private nuisance. Owners and tenants in exclusive possession qualify; mere licensees, spouses, children, and lodgers residing without a proprietary interest do not. The decision expressly overruled Khorasandjian v Bush [1993] QB 727, in which the Court of Appeal had incorrectly held that a licensee could bring a nuisance claim. Lord Goff confirmed that private nuisance is a tort directed against the plaintiff’s enjoyment of rights in land — not against personal discomfort to individuals — and Lord Hoffmann confirmed that damages are properly assessed by reference to diminution in the amenity value of the land rather than inconvenience to persons present. The case firmly reaffirms private nuisance as a property-based tort in which enforceable rights attach to legal title or possessory interest, not to mere occupation.

Stack v Dowden [2007] UKHL 17 – decided by the House of Lords on 25 April 2007, with the leading judgment delivered by Baroness Hale of Richmond – is the leading English authority on the determination of beneficial interests in jointly owned domestic property. The case concerned property conveyed into the joint names of a cohabiting couple without any express declaration of their respective beneficial interests. The House established what has become known as the Stack presumption: where property is conveyed into joint legal names, the starting point is that beneficial ownership mirrors legal ownership and the beneficial interests are equal. The presumption is rebuttable only by clear evidence of a common intention — actual, inferred, or imputed from the whole course of dealing between the parties — that the beneficial interest should diverge from the legal title. The onus lies on the party asserting divergence to establish it. On the facts, Ms Dowden’s significantly greater financial contributions and the parties’ practice of keeping their finances entirely separate rebutted the presumption, producing an unequal division of 65% to 35% in her favour. Lord Neuberger dissented on methodology, preferring a resulting trust analysis based on financial contributions. The case reaffirms that legal title is the primary reference point from which any beneficial interest must be measured and proved — a person asserting an equitable interest inconsistent with the register must demonstrate the common intention that justifies it. The decision was subsequently developed in Jones v Kernott [2011] UKSC 53, which addressed how the common intention framework applies where intentions change after acquisition.

Canada

R v Marshall; R v Bernard 2005 SCC 43; [2005] 2 SCR 220 – decided by the Supreme Court of Canada on 20 July 2005, with Chief Justice McLachlin delivering the majority judgment. The Court addressed Aboriginal title in the context of Mi’kmaq logging on Crown lands in Nova Scotia and New Brunswick and in doing so drew a clear distinction between Aboriginal title and fee simple. Aboriginal title arises from pre-sovereignty occupation and use of land by Aboriginal peoples as part of their traditional way of life – it does not derive from Crown grant. Fee simple, by contrast, arises from a grant by the Crown following the assertion of sovereignty and carries with it the full incidents of ownership – the rights to use, enjoy, alienate, and transmit the land freely. The Court confirmed that Aboriginal title, where established, is the highest Aboriginal right, conferring ownership rights analogous to but distinct from fee simple — including rights to possession, economic benefit, and management of the land – but subject to the inherent limitation that the land cannot be used in a manner that is irreconcilable with the nature of the claimant group’s attachment to it. The case is a significant authority for understanding how fee simple title is characterised within the broader framework of land holding under Canadian law, and its analysis of the distinction between Crown-granted and pre-sovereignty interests is applicable by analogy in other common law jurisdictions.

Didow v Alberta Power Limited 1988 ABCA 257; [1988] 5 WWR 606 – decided by the Alberta Court of Appeal on 11 July 1988, comprising Haddad and Foisy JJA and Andrekson J (ad hoc) – is the leading Canadian authority on the application of the cuius est solum maxim to airspace trespass by permanent structures. Alberta Power had constructed a power line on the road allowance adjacent to the appellants’ farmland, with four poles set approximately two feet from the boundary. The cross-arms, conductors and wires at the top of each pole protruded six feet into the appellants’ airspace at a height of approximately 34 feet. The Court of Queen’s Bench had held that no trespass occurred because the appellants neither used nor intended to use that airspace. The Court of Appeal reversed. Applying the maxim cujus est solum, ejus est usque ad coelum et ad inferos, the court held that the maxim, while not to be applied literally so as to extend to unlimited height, establishes that a landowner is entitled to freedom from permanent structures which in any way impinge upon the actual or potential ordinary use and enjoyment of land. The court distinguished between permanent structural projections – which constitute trespass regardless of whether the landowner currently uses the airspace – and transient invasions at height, such as aircraft overflights, which are treated differently. Actual or current use of the airspace is not required; the right inheres in the ownership of the land. The court also held that Alberta Power required the appellants’ consent or a right of entry order under the Surface Rights Act before intruding into the airspace. The case is the Canadian counterpart to Kelsen v Imperial Tobacco Co [1957] 2 QB 334 and is consistent with the principle confirmed by the UK Supreme Court in Bocardo SA v Star Energy UK Onshore Ltd [2010] UKSC 35 that the cuius est solum maxim, read sensibly and not literally, remains good law throughout the common law world.

Two Supreme Court of Canada decisions together address the proposition that a fee simple owner holds enforceable rights against municipal interference without lawful authority.

Canadian Pacific Railway Co v Vancouver (City) 2006 SCC 5; [2006] 1 SCR 227 – decided by the Supreme Court of Canada – established the two-part test for constructive or de facto expropriation at common law: for municipal regulation of fee simple land to require compensation, the public authority must have acquired a beneficial interest in the property or flowing from it, and all reasonable uses of the property must have been removed. The case confirmed that the common law presumes no taking of property without compensation, and that municipal by-laws that effectively appropriate the economic benefit of privately held land may cross the line from regulation into compensable taking.

Annapolis Group Inc v Halifax Regional Municipality 2022 SCC 36 – decided by the Supreme Court of Canada on 21 October 2022, majority of five to four – affirmed, clarified and expanded the CPR test, holding that a municipal by-law need not amount to total confiscation to constitute constructive taking. Where a public authority’s regulation removes the reasonable uses of fee simple land, the owner is entitled to compensation regardless of whether formal title has been transferred. The decision directly affirms that the rights of a fee simple owner are enforceable against municipal regulatory interference and that such interference without lawful compensatory authority is actionable at common law.

Together these cases are the Canadian counterpart to the principle in Entick v Carrington (1765) 19 St Tr 1029 – that the Crown and its agencies, including municipalities acting under statutory authority, cannot deprive a man or woman of their property rights without lawful justification and, where they do, must answer for it.

New Zealand

Paki v Attorney-General [2012] NZSC 50 and Paki v Attorney-General (No 2) [2014] NZSC 118 – both decided by the Supreme Court of New Zealand – together examined the incidents of a Crown grant of fee simple riparian land and the relationship between that grant and the common law presumption that a conveyance of land bordering a watercourse carries title to the midpoint of the riverbed (usque ad medium filum aquae). In the 2012 decision the Court held that the Waikato River was not navigable at the relevant stretch, rendering inapplicable the vesting of the riverbed in the Crown under s 14 of the Coal-mines Act Amendment Act 1903. In the 2014 decision the Court held that the ad medium filum presumption does not automatically attach to Crown grants of riparian land in New Zealand — it is a rebuttable presumption, not a universal incident of fee simple title. Together the decisions establish that the incidents of a fee simple Crown grant are not fixed — they depend on what the Crown had title to convey, the terms and context of the grant, and whether common law presumptions have been displaced by evidence or legislation. The cases are significant for understanding what a Crown grant of fee simple does and does not carry as a matter of New Zealand law.

Te Runanganui o Te Ika Whenua Inc Society v Attorney-General [1994] 2 NZLR 20 – decided by the Court of Appeal of New Zealand with Cooke P delivering the judgment of the Court – addressed the relationship between the Crown’s radical or underlying title and pre-existing native rights. Cooke P confirmed that on the acquisition of territory by settlement, cession, or annexation, the Crown acquires a radical title that goes with sovereignty, but that this radical title is, in the absence of special circumstances, subject to existing native rights. The case established that the Crown’s fee simple title in New Zealand derives from the Crown’s radical title as the colonising power, and that such title does not automatically extinguish prior interests without clear legislative authority. The case is properly understood as authority on the nature of the Crown’s own underlying title and its limits, not on what incidents pass with a private Crown grant of fee simple — though it provides an essential foundation for understanding what the Crown had available to grant and what encumbrances may have attached to any such grant.

Nemo dat quod non habet – no one can give what they do not have. Both cases ultimately turn on the same foundational question: what did the Crown have to grant, and what therefore passed with the grant?

United States (historical lineage only – diverged post-independence)

Johnson and Graham’s Lessee v McIntosh 21 US 8 Wheat 543 (1823) – decided by the Supreme Court of the United States, with Chief Justice Marshall delivering the opinion – is the foundational American authority on the derivation of land title from Crown grant and the doctrine of discovery. The case arose from competing claims to land in Illinois – the plaintiffs claimed under grants made directly by chiefs of the Illinois and Piankeshaw nations in 1773 and 1775; McIntosh held under a later grant from the United States. The Supreme Court held that a title derived from a grant made by Indian tribes could not be recognised in the courts of the United States. Marshall CJ articulated the principle that all titles to land on the American continent must be derived exclusively from the Crown, upon the foundation of discovery – the doctrine that the European sovereign who “discovered” territory acquired the exclusive right of acquisition and the underlying fee title to the soil, which could then be conveyed downward by Crown grant to private grantees. Native peoples were recognised as holding a right of occupancy – a cognisable legal interest in possession and use – but not fee simple title, which vested exclusively in the sovereign discoverer. Fee title therefore derives entirely from Crown grant and carries with it the right of ultimate dominion, alienability, and disposition – incidents not possessed by the right of occupancy alone. Marshall CJ partly retreated from aspects of this analysis in Worcester v Georgia 31 US 515 (1832), but Johnson v McIntosh remains the leading United States authority on the derivation of fee simple title from Crown grant and has influenced land law throughout the common law world including Australia, Canada and New Zealand. The case is acknowledged as historically significant for its analysis of the nature and derivation of fee simple title while being widely and justifiably criticised for the doctrine of discovery on which that analysis rests – a doctrine founded on premises of European supremacy that have no legitimate legal or moral basis and which continues to be called upon to be repudiated by Indigenous peoples and scholars globally. Any use of this authority for the technical analysis of fee simple tenure should be made with express acknowledgment of that context.

Australia (for completeness and cross-reference)

Mabo v Queensland (No 2) [1992] HCA 23; (1992) 175 CLR 1 – recognised native title as a pre-existing common law right surviving Crown sovereignty, and confirmed that the doctrine of tenure in Australia operates through Crown radical title, from which all Crown grants of fee simple and lesser estates derive their authority.

Wik Peoples v Queensland [1996] HCA 40; (1996) 187 CLR 1 — decided by the High Court of Australia on 23 December 1996 by a majority of four to three (Toohey, Gaudron, Gummow and Kirby JJ; Brennan CJ, Dawson and McHugh JJ dissenting) — held that the statutory pastoral leases under examination did not confer exclusive possession on the lessees and therefore did not necessarily extinguish native title. Native title and pastoral lease rights could coexist over the same land, but where the two were inconsistent the rights of the pastoral lessee would prevail to the extent of the inconsistency.

The case is significant for the analysis of fee simple by implication and contrast. The majority’s reasoning rested on the distinction between a pastoral lease — a novel statutory creature that did not confer the full incidents of freehold — and a grant of fee simple, which was accepted by all parties and by the court as necessarily extinguishing native title. The proposition that only freehold — that is, fee simple — would necessarily extinguish native title was explicitly adopted in argument and not contradicted by the majority. All other statutory interests would require individual examination to determine whether the rights they conferred were inconsistent with the coexistence of native title.

Wik therefore defines what fee simple means by establishing what it is not. It is not a pastoral lease. It is not a lesser statutory interest. It is the one form of Crown-derived tenure that confers exclusive possession so completely that no prior interest — including native title — can coexist with it. The case confirms, by necessary implication, that exclusive possession is the defining and distinguishing incident of fee simple title in Australian law.

Georgeski v Owners Corporation SP49833 [2004] NSWSC 1096; (2004) 62 NSWLR 534 – decided by Davies AJ in the Supreme Court of New South Wales on 22 November 2004 – is a useful consolidating authority on the nature of proprietary rights in land under Australian law. The case arose from a Crown licence granted over the site of a jetty and slipway on the bank of a tidal river on the Georges River. The central questions were whether the licence created a proprietary right enforceable against third parties, whether the jetty and slipway were fixtures on Crown land, and whether a contractual licensee without a right to exclusive possession may maintain an action in trespass. Davies AJ surveyed English and Australian authorities comprehensively on the nature of proprietary rights in land – including the distinction between a licence and a proprietary right, the nature of exclusive possession as the defining incident of a proprietary interest, and the rights of landowners in relation to the surface, airspace, and subsoil. The case is regularly cited in Australian property law as a consolidating judgment bringing together the relevant authorities on these questions in an Australian context, and the cuius est solum maxim and its application to fee simple title is addressed in the course of that analysis. The primary holding was that a Crown licence without exclusive possession does not create a proprietary interest enforceable against third parties.

Dominium plenum – full ownership. The case confirms by contrast what full ownership requires: not merely permission to use, but a proprietary right with the character of exclusive possession that the law will enforce against all the world.

Foundational Texts Supporting the Above

These are not cases but are the bedrock authorities courts draw on:

• Blackstone’s Commentaries, Book II, Chapter 7 (1766):
  Sir William Blackstone’s Commentaries on the Laws of England, Book II, Chapter 7 — “Of Freehold Estates of Inheritance” — is the foundational modern common law authority on the definition of fee simple. Blackstone defines the tenant in fee simple as one who holds lands, tenements or hereditaments to him and his heirs for ever, generally, absolutely, and simply, without mentioning what heirs, referring that to his own pleasure or to the disposition of the law. Book II, Chapter 1 — “Of Property in General” — addresses the foundational theory of private property, stating that occupancy gave the original right to permanent property in the substance of the earth itself, which excludes everyone else but the owner from use of it. Together these chapters establish that fee simple is the greatest estate in land and that property in land is an exclusive right enforceable against all others. Blackstone’s analysis was received into Australian law at settlement and his definition of fee simple remains the baseline against which all case law is measured.

• Coke upon Littleton (1628), Co Litt 1a:
  Sir Edward Coke’s Institutes of the Laws of England, Part I — known as Coke upon Littleton, abbreviated Co Litt — is Coke’s commentary on Thomas de Littleton’s Treatise on Tenures (c.1481). At folio 1a, Coke expounds Littleton’s opening proposition on fee simple: Feodum simplex idem est quod haereditas legitima, vel pura — fee simple is the same as legitimate and pure inheritance. The tenant in fee simple holds the land to him and his heirs for ever, generally and absolutely, subject only to the feudal obligation that it is held of a superior lord. The three hallmarks of fee simple — that it is alienable, devisable, and descendible — flow directly from this definition. Coke upon Littleton remained the primary authority on land law for over two centuries and is still cited by courts throughout the common law world as the foundational text on tenure and estates.

• Magna Carta 1215/1297, Chapter 29 (derived from Chapter 39 of the 1215 text):
  Chapter XXIX of the Magna Carta (1297), still in force in England and Wales, provides: “NO Freeman shall be taken or imprisoned, or be disseised of his Freehold, or Liberties, or free Customs, or be outlawed, or exiled, or any other wise destroyed; nor will We not pass upon him, nor condemn him, but by lawful judgment of his Peers, or by the Law of the Land. We will sell to no man, we will not deny or defer to any man either Justice or Right.” Wikipedia

  Derived from chapters 39 and 40 of the 1215 charter, this clause is the oldest statutory protection of freehold title in the English-speaking world. It establishes three distinct but related propositions: that no free man may be disseised of his freehold without lawful authority; that any such deprivation requires either the lawful judgment of peers or the law of the land; and that justice may not be sold, denied, or delayed. The specific protection against disseisin of freehold is the direct ancestor of every modern common law rule protecting fee simple title against interference without lawful authority, from Entick v Carrington (1765) to Bocardo SA v Star Energy [2010] UKSC 35. The clause remains on the statute book. It is operative law, not historical curiosity.

  Nolumus leges Angliae mutari — we do not wish the laws of England to be changed. The words wrested from King John at Runnymede in 1215 have survived eight centuries of legal development. The right of a free man to hold his freehold against all interference without lawful authority is as old as the common law itself.

The Maxim Most Relevant Here

Cuius est solum, eius est usque ad coelum et ad inferos

“Whoever owns the soil, it is theirs all the way to Heaven and all the way to Hell.”

Cited in Bocardo (above) and confirmed as still operative in common law, subject only to specific statutory modification. This is the foundational principle underlying fee simple rights in real land.

A practical note on use: The English cases (particularly Entick, Bocardo, and Kelsen) and the Australian cases (Georgeski especially) are the most directly useful for a man or woman seeking to articulate the nature and extent of rights held in fee simple. Bocardo in particular is modern (2010), from the UK Supreme Court, and directly on point regarding the depth and extent of those rights.