TUMWINE BARNABAS

001-311

LAND LAW CAT2

LLB 212

Section 1 of the Registration of Titles Act (RTA) Cap 230 defines land to include messuages,
tenements and hereditaments corporeal or incorporeal, “land” also includes all easements and
appurtenances appertaining to the land described therein or reputed to be part of that land or
appurtenant to it.1

Land ownership follows the maxim, “cuius est solum eius est usque et ad inferos” 2 which
translates to, “He who owns the land owns everything reaching up to the very heavens and
down to the depths of the earth” It should be noted that while it is true that land includes air
space and subterranean space, it is not true that the owner’s rights are unlimited.

The 1995constitution of Uganda provides that land in Uganda is vested in the citizens of
Uganda and shall be held as per the tenure systems provided. 3 The constitution further
provides that 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.4

Ownership of the earth’s surface of the land.

Land includes buildings or parts of buildings (whether the building is horizontal, vertical or
made in any other way)5, including buildings that are divided horizontally and vertically.

The condominium property Act of 2001 permits people in Uganda to own property in starters
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
1
Section 1 of the Registration of Titles Act (RTA) Cap 230
2
Borcardo v Star Energy [2010] UKSC 35
3
Article 237
4
Article 26(2)
5
Land Law by Clarke & Greer
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.

Ownership of the subterranean space of the land.

The land owner owns the surface below the earth and can therefore dig down into it to form a
cellar or underground room, intrusion of that space therefore is trespass.

In the case of Elwes vs. Brigg gas co,6 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. stated that, “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”

rights above the air space

Whereas the owner of land also owns the airspace above that land, In the case of Kelson vs.
Imperial Tobacco of Great Britain (1957) 2QB 3347. It was held that the intrusion in the
airspace constituted a trespass to land and the defendants were ordered to remove the
offending billboard. This was possible at the time when it was not possible to exploit
everything above the space. In Modern approach-balance public good with owner’s right set
limits.

However there has been limitations on the that principle of he who owns the land owns
everything reaching up to the very heavens and down to the depths of the earth as discussed
below;

On land where there are certain minerals such as petroleum as provided for in the mining act
cap 148. The Act provides that; Subject to any right granted to any person under this act, the
entire property in and control of minerals in, on or under, any land or waters in Uganda are
and shall be vested in the government, notwithstanding any right of ownership of or by any
person in relation, to any land in, on or under which any such minerals are owned.8

In addition to that, the 1995 constitution of Uganda9 provides that subject to the provisions
of article 26 of the same constitution the entire property in and the control of all minerals and
6
(1886) 33 Ch. 302
7
Kelson vs. Imperial Tobacco of Great Britain (1957) 2QB 334
8
Section 3
9
Article 244 (2)
petroleum in or under water in Uganda shall vest in government on behalf of the republic of
Uganda. The land act 1998 entails the owner of such property to utilize it in accordance with
the forest act, Mining Act, NEMA Act, Water Act and the wildlife act thus the general
principle of ownership as indicated is hindered.10 This has helped in the conservation of
protected areas lie National parks from encroachers.

He who owns air space does not own up to the very heavens as laid out in the case of
Bernstain v Skyviews11, where Lord Bernstein, the owner of a large country estate, brought
an action in trespass against a company for flying over and taking photographs of his land.
Griffiths J held that the rights of the owner of land in the air space above it extend to such
height as it is necessary for the ordinary use and enjoyment of his land and the structures
upon it. Above that height the land owner has no more rights than the general public. Aircraft
flying at a normal height do not trespass upon land. The test here is whether the trespass is
most likely to interfere with the ordinary use of land by the owner. And this has helped to
create flying zones for without being interfered by individuals for trespass.

Further still, 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. This helps people to easily access essential
public properties like water source, roads among others without being charged with
trespassing.

Ownership of the surface of the land can also be limited by boundaries, and these could be
regional, local, international or national. These are identified by property lines which define
the extent of the legal limits of ownership of any parcel of land.

In conclusion, the above is the relevance of the principle of he who owns the land owns
everything reaching up to the very heavens and down to the depths of the earth in Uganda.

BIOGRAPHY

Legislation

The 1995 constitution of Uganda as amended

Case law

Borcardo v Star Energy [2010] UKSC 35

Kelson vs. Imperial Tobacco of Great Britain (1957) 2QB 334

Bernstain v Sky views [1978] QB 479

Elwes vs. Brigg gas co (1886) 33 Ch. 302

TEXT

Land Law by Clarke & Greer 7th edition 2020