Origins
The phrase, in air form, is credited to the glossator Accursius in the 13th Century. It has been suggested that the principle was brought to England by Accursius's son, Franciscus Accursius, who came to England with Edward I on the latter's return from the crusades. The principle was firmly established in common law by Edward Coke in Bury v. Pope (1587), which gives the first statement in English law of the principle, writing (Liber 1, section 1, page 4, section "Terra" (earth)):
And lastly, the earth hath in law a great extent upwards, not only of water as hath been said, but of aire, and all other things even up to heaven, for cujus est solum ejus est usque ad coelum, as it is holden.
The reporter's note to this case ascribes the maxim to the time of Edward I, which accords with the attribution to Accursius (father and son). Two other cases around 1600 also use the principle, and a number of 19th century cases also apply it.
The phrase appears in Blackstone's Commentaries, Book 2, Chapter 2, p. 18:
Land hath also, in its legal signification, an indefinite extent, upwards as well as downwards. Cujus est solum, ejus est usque ad coelum, is the maxim of the law, upwards; therefore no man may erect any building, or the like, to overhang another's land: and, downwards, whatever is in a direct line between the surface of any land, and the center of the earth, belongs to the owner of the surface; as is every day's experience in the mining countries. So that the word "land" includes not only the face of the earth, but every thing under it, or over it. And therefore if a man grants all his lands, he grants thereby all his mines of metal and other fossils, his woods, his waters, and his houses, as well as his fields and meadows.
This formulation, though it omits the et ad inferos "and to hell" wording, includes that interpretation ("and the center of the earth"). Largely through the influence of Blackstone, this broader formulation became influential in American law. See Sweeney reference for various formulations of the principle in Anglo-American law.
The principle does not occur in classical Roman law. The phrase was used by Accursius in discussion of rights to have burial plots or tombs free from the interference of an overhanging building. In Coke's formulation, he cites three cases involving birds; the circa 1600 cases involve overhanging roofs, while the 19th century cases address diverse topics. The principle attracted increased interest in the 20th century with the development of airplanes occasioning much discussion, particularly in the 1930s, and the development of space travel yielding further discussion in the 1960s; some earlier discussion had also occurred around hot air balloons.
In American law, the formulation Ab orco usque ad coelum "from Hades all the way to Heaven" by Louis Brandeis is also found.
Read more about this topic: Cuius Est Solum Eius Est Usque Ad Coelum Et Ad Inferos
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