Land can be defined in several ways depending on the purpose
of the said property, Black’s law
dictionary defines land as an immovable and indestructible three dimensional
area consisting of a portion of the earth’s
surface ,the space above and the below surface whereupon everything growing on or permanently affixed to it. It’s
an estate or interest in real property.
Occupation of land refers to exclusive possession, control
or use of real property - three categories of occupation are by:
As the owner, as a tenant,
and perhaps a trespasser however, in this context we are looking at the owner
of such property.
Land ownership can be summed up as per the Latin word “cujus………………..injerus”
literally meaning who ever owns land
owns the bottom and the airspace
implying he can exercise authority over the space above and beneath without
interference.
Article 237 of the 1995 constitution of Uganda provides that
land in Uganda is vested in the citizens of Uganda and shall be held as per the
tenure systems provided.
Also Article 26(2) supra
provides that no one shall be
deprived of property without due compensations as per the law – these two
articles indicate how the owner of land has authority over such a land and
can’t be deprived of it without due compensation.
In the case of Elwes
vs. Brigg gas co (1886) 33 Ch. 302
A pre historic boat was found by a tenant six feet below the
surface of the land.
Court held: that the boat belonged to the land owner
Chitty, J. had this to say:-
“The land owner was in possession of the ground not merely of
the surface but of everything that lay beneath the surface down to the center
of the earth and consequently in the possession of the boat”
In terms of the airspace one is entitled to exercise
authority over that space above him this is seen in the case of kelsen vs. imperial tobacco (1978) QB 497
Where the owner of land was granted an injuction to restrain trespass by the
neighboring land owner who had erected a sign post which projected in the
airspace above his land Four inches
The above submissions show how the owner of land can own the
heavens and the bottom of a particular land.
However, to the contrary the provisions of the law enacted
for the case of Uganda here below proves that the owner of land does not own
land both in heaven and beneath the earth.
Article 244 (2) of the constitution provides that
subject to the provisions of article 26 of the same constitution the
entire property in and the control of all minerals and petroleum in or under water in Uganda
shall vest in government on behalf of the republic of Uganda also section 43 of the land act 1998 entails the
owner of such property to utilize it in accordance with the forest act, Minning
Act, Nema Act, Water Act and the wildlife act thus the general principle of
ownership as indicated is hindered .
In the case of Bernstein
Vs. sky view and general ltd (1977) EWHC QB 1 A land owner claimed that there had been a
trespass where an aircraft had passed over his land taking photographs at about
700 ft. court held that no actionable trespass had occurred concluding that in view
of scientific developments enabling man to use airspace such restriction was
unreasonable and further held that the right to space above land should be
restricted as reasonably necessary for ordinary use and enjoyment of the land
and structures on it. Implying above such a height the landowner can not claim
right.
The condominium
property Act of 2001 permits
people in Uganda to own property in stratters thus permitting stratification, this implies
the general principle on owner ship is contradicted for instance one may own
the ground floor with all right on land
however may not own the second floor implying he can’t exercise such a right to
the airspace.
Under the doctrine of accretion such disputes as to eroding
of soil may be solved, the doctrine is all about two people owning equal plots
adjacent to each other and what would be a boundary there’s a river which
enables erosion of soil from one piece of land to another, now the owner of the
eroded soils cannot claim the other part where it exists.
Finally the provision of easements this is where such people
who don’t own such land can claim equitable rights over a certain property without
the hindrance of the owner thus such a principle may not be upheld as to
restraint .for example where the owner of land owns a piece of land and in
there there’s sand and stones may fail to fence it off depriving the
neighboring person to access such products.
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