Whose is the land, his is also that which is above and below it.
By a conveyance of land without exception or reservation to the grantor, all rights incident to the land above and below the surface of it go with it ; and to erect anything upon or to project over it, or to disturb the soil, water, mines or minerals beneath it, is a trespass, and actionable, and that without alleging any special damage ; and as well at the suit of the occupier as of the reversioner, supposing, as to the reversioner, that the injury is of a permanent nature. Land is nomen generalissimum, and includes the things above specified as passing by a conveyance of it ; but in a conveyance of a messuage or the like, nothing will pass but what comes, with the utmost propriety, within the terms used.
It is under this rule, as to ad ccelum, that a man cannot of right build the roof of his house so as to project over that of his neighbour, whether or not the doing so will in this case cause any immediate special damage to the neighbouring premises ; the damage in such case being the evident and certain result of the act done, as the falling of the rain-water from the over- hanging building upon the adjoining premises, obstructing the air, preventing the building the house higher, etc. Nor can he even suffer the boughs of his trees to grow in such a manner as to overhang the land of his neighbour. Nor has he, of right, a right of light or way over the land of his neighbour ; and such right can be acquired only by grant or user. It is also under the same rule, as to ad inferos, that taking away the natural support of the adjoining soil from a house or other structure ; draining away the water from wells, pools, reservoirs, etc. ; abstracting minerals, and other acts of a like nature, are trespasses against the owner of the land, and actionable.
An exception to the former part of the maxim may be said to be, where the upper part of a building is granted away separately from the remainder or lower part, which is frequently done ; and to the latter, where the minerals are reserved to the grantor ; in both which cases, the owners of the minerals and of the upper part of the building have each an interest in the land to serve the necessary use and enjoyment of their respective tenements.
The principle of the maxim under consideration is confirmed by the general rule of common law relating to buildings, which prohibits the building of any edifice so as to be a common nuisance, or a nuisance, prejudice, or annoyance to any man in his house — “ iEdificare in tuo proprio solo non licet, quod alteri noceat ;” and is well shown in the case where one erects a cornice so as to project over, though not to touch the land of another ; in which and similar cases an action for trespass by the owner of the land, having actual or constructive possession, may be maintained. It is said that even holding the hand over another man's land is a trespass ; certainly, every act preventing the free use and enjoyment of the land is such, and actionable.
This maxim is in some measure connected with the maxim, “ Sic utere tuo ut alienum non losdas ;” and no person will be permitted to use his land to the injury of his neighbour, but with this qualification — that a man having equal rights with his neighbour cannot be prevented making the best use he can of his land, though he may in doing so injure his neighbour.
Co. Litt. 4, 48 ; Shepp. Touch. 90 ; 2 & 3 Bla. Com. ; 2 Roll. Abr. 565 ; 9 Co. 53, 54; 3 Inst. 201; Topham v. Dent, 6 Bing. 516; Simpson v. Savage, 1 C. B. (N.S.) 347 ; Brook v. Jenny, 2 Q. B. 265 ; Battishead v. Reed, 18 C. B. 715 ; Partridge v. Scott, 3M.4W. 220 ; Whittaker and others v. Jackson, 11 L. T. (N.S.) 155; Humphries v. Brogden, 12 Q. B. 744 ; Ward v. Robins, 15 M. & W. 242 ; Hunt v. Peake, 29 L. J. 785, Ch. ; Bononi v. Backhouse, 27 L. J. 387, Q. B.