EXTENT OF OWNERSHIP AND ENJOYMENT OF LAND (PART 2)

Areej Torla areej@iium.edu.my

RIGHT BELOW THE SURFACE

NLC

Section 44 (1)(a): “Subject to the provisions of this Act” “any other written law” “exclusive use and enjoyment of “ “so much of the land below that surface” “as is reasonably necessary”

Trespass to underground land

Bulli Coal Mining v Osborne The Ds mined from their land through to the P's

land. This was held to be trespass to the subsoil.

Edwards v Lee’s Administrator A trespass is committed where an adjoining land

owner by means of access situated on his land, gains entry to a cave located beneath the surface of the owner’s land.

Terra Damansara Sdn Bhd v Nandex Development [2006] D was undertaking a construction project on

its land and had inserted ground anchors that encroached beneath the surface of the P’s land without P’s consent.

D claimed that he honesty believed that the adjoining land was unoccupied and unalienated.

Court: Trespass to land is actionable per se without any

proof of damage and liability is strict. It is not the law that a man cannot be a trespasser unless he knows he is one. If the entry is intentional, it is actionable even though that entry was made under a mistake or D honestly believed that the land was his own or, like the present case, the land was unoccupied and unalienated or that D believed that he had a right of entry on the land.

D had caused to be inserted ground anchors into the P's land and that constituted trespass. The trespass will last so long as the ground anchors are inserted into the P's land. Any entry beneath the surface of the P's land, at whatever depth, constitutes an actionable trespass.

Restrictions: Section 44 (1)(a)

“Subject to the provisions of this Act” “any other written law” “exclusive use and enjoyment of “ “so much of the land below that surface” “as is reasonably necessary”

“Subject to the provisions of this Act” Section 45(2)(a): A landowner may not use

and extract metals and minerals from his land.

Section 45(2)(b): A landowner may not remove beyond the boundaries of the land any rock material or forest produce.

Section 92 B: The State Authority may specify the depth up

to which the land below the surface of alienated land may be used.

Underground land below the specified depth is deemed State land.

(Note: Section 92C: Underground land below the surface of State land can be alienated, with a depth specified.)

Section 92D: A proprietor may apply for the whole or a part

of the underground land to be used for a purpose which is independent and unrelated to the lawful use to which the surface of the land is being put.

“any other written law”

The National Heritage Act 2005

“Antiquity” (see Section 2)

“antiquity” means—

(a) any moveable object which is or is reasonably believed

to be at least fifty years old;

(b) any part of any such object which has at any later date

been added or re-constructed or restored; and

(c) any human, plant or animal remains which is or is

reasonably believed to be at least one hundred years old;

Section 47: The person who finds the antiquity must immediately notify the Commissioner of National Heritage, authorised officer or the DO of the district where the object was discovered and deliver such object to any of them.

Contravention of this Act? offence. Section 48, National Heritage Act: The antiquities

shall be the absolute property of the Federal Government, provided that where the object is discovered on alienated land, compensation may be paid to the owner of the land.

Section 2 “treasure trove” means any money, coin, gold,

silver, plate, bullion jewellery, precious stone or any object or article of value found hidden in, or in anything affixed to, the soil or the bed of a river or lake or of the sea, the owner of which is unknown or cannot be found, but does not include any tangible cultural heritage;

Section 74: Any person who discovers any treasure trove shall,

immediately give notice of such discovery to the Commissioner or District Officer of the district where the treasure trove was discovered and shall deliver the treasure trove to the District Officer who shall acknowledge receipt.

Section 79: The State Authority may in its discretion pay as a reward

to the finder of any treasure trove and to the owner of any land in which it was discovered such sums at it may think fit.

RIGHT OF SUPPORT

NLC

Section 44 (1)(b): “Subject to the provisions of this Act” “any other written law” “the right to the support of the land” “in its natural state”

A landowner is entitled to have his land physically supported by the adjacent land.

Thus, the right is a negative right requiring the owner of the adjacent land to refrain from withdrawing that support.

The owner of the adjacent land cannot withdraw the natural support that his land gives to his neighbour’s land.

Land has no right to additional support required by reason of its weakened state.

Basis of this right: Dalton v Angus

Lord Selbourne: “In the natural state of land, one part of it

receives support from another, upper from lower strata, and soil from adjacent soil. This support is natural, and is necessary, as long as

the status quo of the land is maintained”

Madam Chah Siam v Chop Choy Kong Kongsi P occupied a land under TOL used for rearing

fish. There was a large pond (an old mine filled with

water) an another smaller pond. D occupied the adjoining land, did mining

operations until he almost reached the boundary of the bank of the adjoining fish pond.

The bank collapsed, and water from the pond poured into the mine.

“ the land which contained the pond is entitled to such a degree of support as it would have

required in its unexcavated condition, and had no right to the additional support required by reason of its weakened state. In my opinion,

on the facts of this case, it is fairly evident that it was the need of this additional support

which caused the collapse of the land containing the pond”.

-- Cussen J.

The land in its natural state had an absolute right of support from the adjoining lands.

“natural state”: unburdened with buildings and unweakened by excavations.

The pond is simply an excavation caused by mining which has filled up with water.

The land in its excavated state is not entitled to lateral support.

Guan Soon Tin Mining

The appellants were the owners of a mining land.

The land was used for mining by the appellant’s predecessors, long before the appellants occupied the land.

Court allowed the appeal. For an action for damage caused as a result of

the withdrawal of support, it is necessary to prove both that:

1. The withdrawal was caused by the act of the person against whom the action was brought; and

2. That the adjoining land was in its natural state.

Departure from Dalton v Angus ???In Singapore…  Xpress Print Pte Ltd v Monocraft Pte Ltd & Anor

[2000] 3 SLR 545, Singapore‘s Court of Appeal The court held that the right of support enjoyed by a

neighbouring landowner extended beyond the land in its natural state to the buildings erected thereon.

“In the event, we are of the view that the principle in question operates to give a landowner a right of support in respect of his buildings by neighbouring lands from the time such buildings are erected”