Lecture 5 (Part 2) – Ownership of Land
Physical Boundaries
• What are the physical boundaries of the land in question? Extent of ownership? Vertical is
from the sky to the center of the Earth. Need to know the horizontal dimensions which will be
generally found in relation to heritable property in the description of the property. All
heritable property needs to be registered in the land register.
• If the description is so vague that you cannot ascertain exactly what is being transferred or
intended to be transferred, then the whole transfer being not valid will not go through.
• Matheson v Gemmell 1903 5F 448
• The description in this case “a piece of ground…….lying on the north side of Garnad Hill within
the territory of the Burgh of Glasgow and County of Lanark” was described by Lord McLaren
“This is a rather indefinite description”.
The question which arose in the case was whether there was a sufficient description of the
land so that the sale of it would go through validly. Lord McLaren nonetheless came to the
view that there was an enough there to identify the piece of land which was being transferred,
and accordingly the transfer could go through.
• Murray`s Trs. v Wood 1887 14R 856
Boundaries
1) The general description – not precise, something akin to what was used in the
Matheson v Gemmell case. Would not on the basis of the general description be able to plot
exactly the piece of ground in question that was being transferred.
2) The particular description – has all the necessary details so that without further
reference to any other document, you would be able to identify exactly the piece of property
which was to be transferred. It will say that the boundary goes for so many meters along a
river perhaps and then so many meters north from a particular point.
3) The description by reference – referring to another document, typically a previous
disposition, a previous deed transferring title to this property. E.g. house builders build a
particular property and they sell it to the first owners, the deed from the housebuilders to the
first owners will probably contain a particular description of what exactly is being transferred.
When the owners then sell to the next owners, the description will probably say the property
address, boundaries marked in red etc.
• If a deed does not have a particular description, then boundaries will require to be established
by possession for the prescriptive period, unless the Title has been registered in the Land
Register in which case, the boundaries are marked on the map forming part of the Title Sheet.
It was possible for adjacent properties to have descriptions which overlapped.
, Extent of ownership
• Ownership extends a coelo usque ad centrum
• Brown v Lee Construction Ltd. 1977 SLT Notes 61
Involved the pursuer wanting an interdict against the defenders crane whose arm was
swinging across above the pursuers ground. The pursuer owns not only the ground but also
the air space above so the arm of the crane sweeping through the airspace belonging to Brown
was intruding on to his property and that was something he was able to interdict against.
If you could succeed in obtaining an interdict for every possibility of airspace intrusion, you
would in effect be able to restrict air travel. This would therefore cause problems. Various
statutory provisions which place restrictions.
• Bernstein v Skyviews and General Ltd 1978 QB 479
The claimant owned a big house and the defenders took an aerial photograph of his house
from a plane and went around and asked if he wanted to buy a copy of the photo. He was
enraged at the audacity of the defenders and sued them for damages for trespass and invasion
of privacy. He was not successful, the English court took the view that your rights in airspace
extended to what was reasonably necessary for ordinary use and enjoyment of your land and
there is also statutory protection for aircraft as long as they are flown at a reasonable height
which was the case.
• Thus, ownership includes the solum, everything above and everything below, but subject to
the possibility that certain things are owned by other parties because they have been
separately and previously conveyed, because they are Separate Tenements.
Separate Tenements
◼ Conventional Separate Tenements are those created by the terms of a deed of conveyance
e.g. disposition or feu disposition - either as a grant or by reservation e.g. mineral rights.
If you sell land, you can reserve back to yourself a separate tenement. If you are selling land
which has valuable minerals etc. beneath the surface, you can sell the land and reserve
yourself the right to dig up the coal or minerals.
• A purchaser is entitled to these as part of the subjects being conveyed, and so if the seller
does not own these, they must be specifically excluded in the deed of conveyance.
• If you do not make it clear that there are separate tenements to the purchaser, then the
purchaser is entitled to expect that they will get everything.
• Campbell v McCutcheon 1963 SC 505
Involved the sale of a house and the transaction went through to the extent that the purchase
price was placed on deposit at the bank and the purchaser took up residence but changed his
mind and withdrew his offer. The seller had to wait to resell at a loss and sued the purchaser
for breach of contract by pulling out. Was the seller going to succeed or is the purchaser within
his rights to withdraw?
The purchaser was held entitled to withdraw on the basis that the mineral rights were
reserved to another person. The seller did not have the mineral rights to transfer to the
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