Google Scholar In relation to land, for instance, possession is prima facie evidence of seisin in fee and seisin “gives ownership good against everyone except a person who has a better, because older, title” ( Newington v. It remains, however, a salutary fact that possession and title are by no means discrete concepts (see Bl. It is, of course, true that access to remedies in trespass (and for that matter nuisance) rests traditionally upon “possession” rather than “title” (see Malone v. It may even be questioned at a more fundamental level whether actionability in trespass necessarily indicates that the plaintiff has any “property” in the land. Google ScholarĢ7 Some doubt has been expressed whether the law of trespass provides the most suitable forum for dealing with tortious invasion of airspace (see e.g. 73, 91 per J, Windeyer National Carriers Ltd. Valuer-General, supra, 351H-352A per Lord Wilberforce). In no sense can the maxim be understood to mean that “land” comprehends the whole of the space from the centre of the earth to the heavens, not least since “so sweeping, unscientific and unpractical a doctrine is unlikely to appeal to the common law mind” ( Commissioner for Railways et al. 328, 351G per Lord Wilberforce), and to have “no place in the modern world” ( United States v. The formula has been said to be “imprecise” and “mainly serviceable as dispensing with analysis” ( Commissioner for Railways et al v. dismissed the maxim as merely “a colourful phrase”. ĥ It may be that the maxim cuius est solum … never meant very much at all. In its present form the paper is an extended version of an Inaugural Lecture delivered in the University of London on.
Some of the ideas contained in this paper were initially presented at the University of Tasmania Law School's Residential Seminar Weekend at Cradle Mountain Lodge in July 1990.
Jenny Degeling (of the Commonwealth Attorney-General's Department, Canberra) and to the Intellectual Property Law Unit at Queen Mary and Westfield College. For help in locating materials thanks are particularly due to Ms. Timothy Bonyhady of the Australian National University's Faculty of Law (although neither can of course be held responsible for the perverseness of the author's views). It is inevitable that the thoughts expressed here should owe much to discussion with the Head of that Division, Professor Paul Finn, and also with Dr.
This paper represents one of the products of a happy period spent in 1990 as a Visiting Fellow in the Division of Philosophy and Law in the Research School of Social Sciences at the Australian National University. (Cantab.), Drapers' Professor of Law in the University of London at Queen Mary and Westfield College.
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