Q&A 2

Definition of land

Introduction
One of the earlier parts of most land law courses deals with the definition of land. Immedi-
ately, the unsuspecting student is confronted with the mysteries of law in the form of
unfamiliar and seldom used words. Land does not simply mean something physical. The
word ‘hereditament’, to which the student will be introduced, implies the nature of the
right involved in the ownership of land. It is a clue as to what the study of land law is all
about – not the land (the soil, the grass, the trees, the buildings), but the rights that people
may have in land. Thus, land is to be reclassified as including corporeal and incorporeal
hereditaments. Ownership of land may equally include ownership of a house and
ownership of a right of way over someone else’s house.
This classification has given rise to some jurisprudential debate as to the nature of corpor-
eal and incorporeal rights and some courses may address this topic from that perspective
(see, for example, Austin, Jurisprudence, 5th edn, London: Murray, 1885, vol. 1, p. 362).
Other courses may, however, concentrate on the distinction between fixtures and chattels
since this develops and applies the distinction between real and personal property which
will have formed a part of an early lecture. The difficulty with the distinction between
fixtures and chattels is that it rests on a factual basis and, although basic principles have been
established and can be applied, there are numerous cases which have been decided on their
own individual facts. Thus, in one case, a seat can be a fixture, in another, a chattel.
There are also some Latin maxims on the loose here despite attempts to modernise the
law. Cuius est solum eius est usque ad coelum et ad inferos (the owner of the land owns
everything up to the sky and down to the centre of the earth) and quicquid plantatur solo,
solo cedit (whatever is attached to the land becomes part of the land) are regulars. Some
discussion of these maxims and their application to practical problems may be anticipated.
A good starting point is the Law of Property Act 1925, s. 205(1)(ix) which gives the
statutory definition of land.
Apart from the Treasure Act 1996, there is nothing very novel in this topic. The cases are
not on the move, although there is some recent case-law which applies established prin-
ciples, so, from that point of view, the topic is a safe one to prepare. In addition, it does
bring down to earth some of the airy concepts which usually (and inevitably) dog the
beginning of most courses on land law.
4 DEFINITION OF LAND

Q Question 1
Cuius est solum, eius est usque ad coelum et ad inferos (the owner of the land owns
everything up to the sky and down to the centre of the earth).
Discuss.

Commentary
This question is either a dream or a nightmare. There is a vast amount of material to be
covered and it is unlikely that you can deal with it all. You may be guided by what you have
covered in lectures. Treasure trove, for example, has been topical (with the growth in the
use of metal detectors) and modern law has now significantly extended the meaning and
ambit of ‘treasure’.
The usual advice not to regurgitate all you know holds good. Discuss the maxim critically:
what are its limitations? Don’t just dismiss it – consider to what extent it holds true.

• Limitations on fee simple owner’s rights:

Airspace

Water

Boundaries—presumptions

• Land—minerals

• Chattels—fixtures or not? Treasure Act 1996

• Wild animals

• Social legislation—planning, housing

B Suggested answer
This maxim, which was coined by Accursius in the thirteenth century, relates to the
extent of the ownership enjoyed by the fee simple owner. There are, in fact, a number
of limitations on the ownership of the fee simple owner. Some are statutory, others
are founded in the common law.
The first aspect to be considered is the extent of the fee simple owner’s rights in the
airspace above the property. The owner’s rights extend to such a height as is reason-
ably necessary for the ordinary use and enjoyment of the land. In Baron Bernstein of
Leigh v Skyviews and General Ltd [1978] QB 479, Griffith J stated that it was necessary to
balance the rights of an owner to enjoy the land against the rights of the general
public to take advantage of all that ‘science now offers in the use of airspace’. Thus,
the rights of the owner were limited to such a height as is necessary for the ordinary
 DEFINITION OF LAND 5

use and enjoyment of the land and above that height the fee simple owner has no
greater rights than any other member of the public.
Where there is an interference with the legitimate rights of the fee simple owner
then these rights may be maintained by an action for nuisance or trespass. In Kelsen v
Imperial Tobacco Co. (of Great Britain and Ireland) Ltd [1957] 2 QB 334, the action of the
defendant in allowing an advertisement to overhang the plaintiff’s premises
amounted to a trespass as was the action of the defendant in Woollerton and Wilson Ltd
v Richard Costain Ltd [1970] 1 WLR 411, in allowing the jib of a crane to swing over the
plaintiff’s property.
Under the Civil Aviation Act 1982, it is a defence to an action in trespass or nuis-
ance for aircraft to fly at such a height which is reasonable under the circumstances.
The rights of the fee simple owner in water on the land are, in part, derived from
statute. The right to abstract water is controlled by the Water Resources Act 1991 and
depends on the grant of a licence from the Environment Agency.
Where water flows in a defined channel across the land, then there is a distinction
between water which is tidal and that which is non-tidal. The water itself is not capable
of ownership, but there are rights in the bed and the right to take the fish to be con-
sidered. Where the water is tidal, the bed belongs to the Crown and the public have a
right of navigation and a right to fish up to the point where the water ceases to be
subject to the ebb and flow of tides. In many rivers this point is determined by the
presence of a lock-gate. Where the water is non-tidal, then the bed belongs to the
riparian owner. If the water forms the boundary between two plots of land, then sub-
ject to any contrary agreement or evidence, the riparian owners own up to the midway
point in the river or stream. They are also entitled to take the fish, a valuable property
right on many country estates. A riparian owner does not own the water itself, but
may use it for ordinary purposes connected with the riparian tenement, regardless of
the amount he uses. If he uses it for any extraordinary purpose, such as manufactur-
ing, then he must restore it in approximately the same quantity and quality.
Water percolating underneath the land and not contained in a defined channel, is
not capable of ownership until such moment as it is appropriated, when it becomes
the property of the person appropriating it (Ballard v Tomlinson (1885) 29 ChD 115).
Where water, such as lakes and ponds, lies on the land, it is the property of the
landowner.
If the land verges on the seashore, then the fee simple owner owns that part of the
land down to a point reached by an ordinary high tide.
Where the land is bordered by a hedge and ditch the rebuttable presumption is that
the boundary lies at the furthest edge of the ditch (Vowles v Miller (1810) 3 Taunt 137;
Alan Wibberley Building Ltd v Insley [1999] 2 All ER 897).
The maxim also states that the landowner owns everything down to the centre of
the earth. While it is true that at common law all minerals are owned by the land-
owner, ownership is in fact vested by various statutes in the Crown or other public
6 DEFINITION OF LAND

bodies. For example, petroleum in its natural state is vested in the Crown by virtue of
the Petroleum Act 1998 and coal is vested in the Coal Authority by the Coal Industry
Act 1994.
The fee simple owner is, prima facie, entitled to all chattels found on the land, in the
absence of a legitimate claim from the owner of the chattel. Treasure is an exception
to this. Under the Treasure Act 1996, treasure vests, subject to prior interests and
rights, in the Crown. Treasure is defined by the Act to include any object at least 300
years old when found which:

(a) is not a coin but has metallic content of which at least 10 per cent by weight is
precious metal;
(b) when found, is one of at least two coins in the same find which are at least 300
years old with the same percentage of previous metal as above; or
(c) when found, is one of at least ten coins in the same find which are at least 300
years old.

In addition, treasure includes further classes of objects at least 200 years old and of
outstanding historical, archaeological or cultural importance designated by the
Secretary of State. Items which would have been treasure trove if found before the
commencement of the Act, are also within the definition.
Wild animals are not subject to ownership (The Case of Swans (1592) 7 Co Rep 156),
but may be hunted by the fee simple owner on whose land they run. There are,
however, a number of limitations to this right in respect of protected species (Wildlife
and Countryside Act 1981 (as amended) and the Protection of Badgers Act 1992, for
example).
Land is defined in the Law of Property Act 1925, s. 205(1)(ix) as including ‘the
surface, buildings or parts of buildings’ and whatever is attached to the land becomes
part of the land under another Latin maxim, quicquid plantatur solo, solo cedit. This
raises, in practice, an important problem relating to ownership of those items which,
but for the fact that they are attached to the land, would constitute chattels. The
distinction needs to be drawn between those items which are fixtures, and therefore
part of the realty, and those which are not, and therefore remain personalty.
There are two tests for determining whether an object is a fixture or a chattel. The
first test relates to the degree of annexation. If the object is annexed to the land then it
is, prima facie, a fixture. So, in Holland v Hodgson [1872] LR 7 CP 328, spinning looms
bolted to the floor of a factory were attached other than by their own weight and were
fixtures. In Hulme v Brigham [1943] KB 152, however, heavy printing presses which
stood on the floor without any attachment other than the force of gravity, were
chattels. In Chelsea Yacht & Boat Co. v Pope [2000] 1 WLR 1941, a houseboat which
was moored to the bank and which moved up and down with the tide, was held to be
a chattel.
 DEFINITION OF LAND 7

The paramount test, however, was foreshadowed by Blackburn J in Holland v Hodg-

son and relates to the purpose of annexation. Under this test, the question to be asked
is whether the chattel has been affixed to the land for the better enjoyment of the
object as a chattel, or for the more convenient use of the land. This leads to the result
that the same object may constitute a fixture in one case, but a chattel in another. For
example, in Leigh v Taylor [1902] AC 157, tapestries nailed to a wall were held not to
be fixtures, but in Re Whaley [1908] 1 Ch 615, similar objects were held to be fixtures
because the object of their annexation was to enhance the room. Lord Halsbury LC in
Leigh v Taylor confirmed that the key test was the purpose of annexation, and this was
confirmed in Hamp v Bygrave (1982) 266 EG 720 where garden ornaments that formed
part of a landscape display were held to be fixtures despite the fact they rested on the
ground simply by their own weight.
In Elitestone Ltd v Morris [1997] 1 WLR 687, the House of Lords held that what is of
primary importance is the intention involved. It was indicated that this is an object-
ive test to determine whether the object was intended for the use or enjoyment of the
land, or for the more convenient use of the object itself. Clearly, the courts are pre-
pared to apply a common-sense approach to this issue (Botham v TSB Bank plc (1997)
73 P & CR D1).
There are some exceptional cases where there is a right to remove fixtures. A tenant
may remove trade fixtures that have been attached to the land for the purpose of
carrying out his trade; ornamental and domestic fixtures provided their removal will
cause no substantial damage to the property; agricultural fixtures in accordance with
the procedure set out in the Agricultural Holdings Act 1986.
There are also a number of limitations on the right of the fee simple owner to enjoy
the land in the form of the Town and Country Planning Act 1991 and related legisla-
tion, which controls developments on land, and the Housing Acts and Rent Acts,
which control the standard for houses for human habitation and the security of
tenure of tenants for years.

Q Question 2
Abel has entered into a contract to sell his house to Baal. He consults you as to
whether the following items (which were not mentioned in the contract of sale) are
to be included in the sale:

(a) a replica of the ‘Three Graces’ which is standing in the garden;

(b) a stained glass lampshade, attached to the ceiling by a chain, which was
given to him by friends when he got married;

(c) the fitted kitchen which Abel installed himself (he wants to dismantle it and
adapt it for his new house);
8 DEFINITION OF LAND

(d) adjustable bookshelves which slot into strips of metal screwed into the wall;
and

(e) an ornamental fireplace which is on hire-purchase from Quickfire Ltd.

Commentary
Unusual in a land law examination, this question concentrates on one aspect of a subject –
that of the distinction between fixtures and chattels. There is an abundance of well-known
case law in this area and the principles are well established. The judgment of Scarman LJ in
Berkley v Poulet (1976) 242 EG 39 lays out the principles clearly and concisely, and the area
was considered by the House of Lords in Elitestone Ltd v Morris [1997] 1 WLR 687. For the
effect of hire-purchase agreements see Guest and Lever (1963) Conv. (NS) 30; McCormack
[1990] Conv. 275.
Many of the cases vary according to their facts so it is important to distinguish principles
of law in this area from issues of fact.
Land and chattels are treated differently at law; land is real property and chattels are
personal property. A contract to sell real estate will not include items of personal property
unless they are expressly included. Sometimes an item that was once a chattel may become
part of the land and there are, on occasions, difficulties in naming the distinction between
fixtures (which form part of the land) and chattels (which remain items of personal prop-
erty). Under the Law of Property Act 1925, s. 62, fixtures are included in a conveyance of
land. This question deals with this fundamental distinction.

• Purpose of distinguishing between fixtures and fittings

• Tests to distinguish between fixtures and fittings

• Discussion of development of tests through case law

• Paramount test – degree of annexation

• Discussion of case law in relation to each scenario in (a), (b), (c), (d), and (e)

B Suggested answer
(a) There are two tests to determine whether an item has become part of the freehold:

(i) the method and degree of annexation;

(ii) the object and purpose of the annexation.

The earlier law emphasised the first test, while later cases introduced the second test to
alleviate the injustice where limited owners had affixed items of value to the land. The
second test is now dominant, so if the item is physically annexed to the land this does
not necessarily resolve the matter any more. Nevertheless the degree of annexation
 DEFINITION OF LAND 9

remains a relevant question. According to Scarman LJ in Berkley v Poulet (1976) 242 EG

39, if there is such a degree of physical annexation that an object cannot be removed
without serious damage to, or some destruction of, the realty, then there is a strong
case for the item to be classified as a fixture. In Chelsea Yacht & Boat Co. v Pope
[2000] 1 WLR 1941, a houseboat which was moored by ropes, chain, and an anchor
was held to be a chattel.
Thus, the determination of the question whether the ‘Three Graces’ is a fixture will
depend on an application of the two tests. It is not clear whether the statue is physic-
ally fixed to the land, although it would seem from the question that it is merely
‘standing’ on the land. If that is the case, then, prima facie, the statue is not a fixture.
In the case of Berkley v Poulet itself, a white marble statue of a Greek athlete weighing
half a ton and standing on a plinth, was considered not to be a fixture. Similarly, a
printing machine secured by its own weight and weighing several tons was held not
to be a fixture (Hulme v Brigham [1943] KB 152). However, the general rule can be
displaced where the object of annexation can be shown to be that it was intended that
the item should become part of the land. Thus, a drystone wall which was constructed
of blocks of stone placed one on top of another was held to have been intended to
become part of the realty (Holland v Hodgson (1872) LR 7 CP 328). Intention refers to
the purpose which the object serves, not to the purpose of the person who put the
object in place: Elitestone Ltd v Morris [1997] 1 WLR 687 (HL).
The fact that the ‘Three Graces’ is an ornamental object may not be a conclusive
indication that it is not intended to become part of the land. In Lord Chesterfield’s
Settled Estates [1911] 1 Ch 237, Grinling Gibbons carvings were held to be fixtures; and
in Re Whaley, Re [1908] 1 Ch 615, chattels, which were placed in the room in order to
create a beautiful room as a whole, were held to be capable of being fixtures. In
D’Eyncourt v Gregory (1866) LR 3 Eq 382, statues which were part of the architectural
design of a property were held to be fixtures.
However, in this problem, regardless of the question whether the ‘Three Graces’ are
in fact physically affixed to the ground, it would seem probable that the statue
remains a chattel unless, as in Hamp v Bygrave (1982) 266 EG 720, it can be objectively
viewed as a feature of, and part and parcel of, the garden, or, as in D’Eyncourt v Gregory,
as a part of the architectural design of the house.
(b) The stained glass lampshade would not seem to pose the same difficulties. It is
an object that is essentially a chattel and it is unlikely that any evidence could be
adduced to change its character into a fixture. If the first test were to be applied alone,
then there is a degree of physical annexation which might suggest that the lampshade
was a fixture. This test is no longer decisive. In Leigh v Taylor [1902] AC 157, tapestries
were fixed to the wall. The House of Lords held that the purpose of their annexation
to the realty was for their better enjoyment as tapestries. Annexation on its own was
not enough to make them fixtures. This decision was followed in the case of Spyer v
Phillipson [1931] 2 Ch 183, where oak and pine panelling and a chimney-piece had
10 DEFINITION OF LAND

been erected, and, in Berkley v Poulet (1976) 242 EG 39, in relation to pictures which
were hung in recesses in a panelled room. Thus, it is likely that the lampshade will be a
chattel.
(c) The fitted kitchen poses a different problem. In the first place it is clearly
annexed so it raises the general rule that it constitutes a fixture. Secondly, it would
seem to be unarguable that the object of its annexation was for any other purpose
than to create a room which could be used as a kitchen. While the fitted furniture may
have been aesthetically pleasing, its primary purpose was for use as a kitchen. In Re
Whaley [1908] 1 Ch 615 the design of a beautiful room, ‘an Elizabethan Room’, by
the installation of chattels of beauty, meant that those chattels became part of the
room – they were fixtures. The unity of design of the room meant that the objects
were part of the realty. The result in Lord Chesterfield’s Settled Estates (above) was
similar. In Botham v TSB Bank plc (1997) 73 P & CR D1 the Court of Appeal decided
that bathroom and kitchen units were fixtures whereas kitchen white goods, such as
refrigerators, were still chattels.
(d) Similar arguments might prevail in respect of the bookshelves. They are
annexed although they could be easily removed with little damage. The object of
their annexation is to make the room useful as a library (Re Whaley). In fact, there
would seem to be no question as to their intrinsic merit as chattels. The bookshelves
have been installed for the more convenient use of the property, not for their use as
chattels. In Vaudeville Electric Cinema Ltd v Muriset [1923] 2 Ch 74, seats secured to the
floor of a cinema hall were fixtures. Normally, free-standing seats would be considered
chattels. Here, however, they were affixed to make the hall more convenient as a
cinema and were held to be fixtures. On these grounds, therefore, it is arguable that
the shelves become fixtures.
(e) Here the fireplace is annexed to the room. It is described as ornamental and
might, therefore, fall into the category of the tapestries in Leigh v Taylor which,
although affixed, were deemed to be chattels because the object of their annexation
was for their better enjoyment as such.
However, there is a further complication in that the fireplace is being purchased as
part of a hire-purchase scheme. If the fireplace has been annexed to the land of the
hirer, then it becomes annexed to the realty and the original owner (Quickfire Ltd)
loses its title. It will be necessary to consider the contract of hire-purchase to see
whether Quickfire Ltd has reserved to itself the right to remove the fireplace in the
event of default in the payment of the hire-purchase instalments. If there is such a
right of removal, then this confers on Quickfire Ltd an equitable interest in the land
which is a right of entry (Re Morrison, Jones & Taylor [1914] 1 Ch 50).
Whether this right of entry is binding on Baal will depend on whether the land is
registered or unregistered. If unregistered, then the equitable doctrine of notice pre-
vails and Baal will be bound unless he is a bona fide purchaser of a legal estate for
value without notice (Poster v Slough Estates Ltd [1969] 1 Ch 495). If the land is
 DEFINITION OF LAND 11

registered, then strangely enough, the right of entry will not bind a purchaser since it
is not an overriding interest and may not be registrable as a minor interest.

Further Reading
Austin, J., Jurisprudence, 5th edn, Murray, 1885, vol. 1, p. 362.
Guest, A., and Lever, J. (1963) Conv. (NS) 30.
McCormack, G., [1990] Conv. 275.
Oakley, A. J. Megarry’s Manual of Real Property, 8th edn, Sweet & Maxwell,
2002.