Above and below – are we all trespassers on other people’s land?

I have been pondering of late, having read so much about these modern dig-downs, where people excavate basements to create more space, how far down can a home owner go before the ground under their feet ceases to actually be theirs?

Loft conversions being so passé these days and basement gyms all de rigueur especially in London where space is at a premium and I wondered what happens if the occupier finds a tube train tunnel directly under their house?.
Are we all trespassing whilst on the Northern Line going home in the rush hour?

In a Nutshell

So I purchased a rather excellent little law book called “Nutshells Land Law”, which goes into the essence of….well….land law in all its mad glory, published by Sweet and Maxwell, written by Michael Haley and began to educate myself about some very interesting legal principles that I thought I would share with you.

The ‘Nutshells’ series are study aids for law students of the same kind as ‘York notes’ or Brodies’ for students of Shakespeare etc.

It turns out that minerals found underground belong to the land owner.

Oi, oil

In the recent case of Bocardo SA v. Star Energy Onshore Ltd (2011) the oil company were engaged in diagonal digging from adjoining land to that owned by Bocardo and found oil some 2,900 feet below the property. Certainly much deeper than any tube station.

The courts decided that although no damage had been done to the land as such, trespass had actually been committed and Bocardo were awarded £1,000 compensation.

So how far down is down when it comes to ownership?

Trespass on the tube?

The Supreme Court in Bocardo spoke of different strata of the earth and commented that the common law rule of thumb should apply until the point where physical features such as temperature and pressure rendered absurd the concept of strata belonging to someone.

So to my untutored but inquisitive mind, tube travel could be trespassing. I recall the scene in the excellent Ealing Comedy, ‘Passport to Pimlico’, where the residents of the newly established annexe to Bergundy, stop tube trains and ask to see people’s passports.

There are statutory exceptions to trespass to land under the ground, with exemptions made for extracting water, for which licences must be obtained, , Unworked coal and rights to petroleum which can be granted by the Crown.

But still no underground trains as far as I can see.

Finding stuff on another’s land

This also begs the question of what happens when treasure is found on land owned by another? The quandary is solved by the same principle, in that if the treasure hunter has to dig it up then they will have likely committed trespass in order to do it and so the owner of the land has a better chance of arguing a case that Captain Kidd’s hoard actually belongs to them.

I would imagine that metal detector hobbyists would be well up on this element of law.

Whereas something found on the surface of land could be more tricky in that it would depend whether or not they were trespassing in order to pick it up, whereas finding something in a park with public access would suggest they weren’t trespassing.

So if the issue of how far down is down is a valid legal point then how far up is up?

Helpfully there are clearer definitions.

Strata in the air

The space above your head is legally divided into the ‘Upper stratum’ and the ‘Lower stratum’. We don’t have ownership of the upper stratum, so you can’t sue Ryanair for bussing hundreds of stag parties across your land at 30,000 feet, all you can do is go into the back garden and shake an annoyed fist at them.

However, we do have the lower stratum under control. The Civil Aviation Act 1982 tells us that the lower stratum extends to between 500 and 1,000 feet. Anything passing above our property under that level is fair game for suing as a trespasser.

And it does happen.

A millimetre too far

In Anchor Brewhouse Developments Ltd v. Berkeley House (Docklands Development Ltd (1987) Anchor managed to obtain an injunction against Berkeley to stop them swinging a crane over their land, successfully arguing that this was trespass.

There is even a case where an extractor fan for an air conditioning system, situated 6 metres up the wall of an adjacent building but jutting out a few millimetres into the airspace of the neighbour was held to be a trespass to land.
Some people have too much time on their hands, methinks.

So have my investigations cleared up my initial question of whether London underground is guilty of multiple acts of trespass by siting their tunnels and stations beneath owned property? And are we also guilty when travelling on the tube of multiple acts of trespass without realising it?

Git orf

Several councils and housing associations use pilotless drones these days to survey the roofs of their housing stock or detect beds in sheds, are these trespassing?

Well if the jib of a crane can be considered trespass several hundred feet in the air in a limited and defined stratum then surely so can a tube train, travelling across land beneath millions of buildings whose ownership extends to the point where, as the Supreme Court announced the notion would become absurd.

So to my mind, until I’m disproven I’ve decided we are all trespassers at some point and in the words of the Bard ‘Get-Orf moy land’.