Faculty of Law, The University of the West Indies, Mona Campus

LAW 2210 – REAL PROPERTY I

André Sheckleford
([email protected])
Tutorial 1
Some ideas relating to ‘land’

In this tutorial we will be looking into two maxims concerning land. The first is one which we
broached in lectures already: cuius est solum eius est usque ad coelum et ad inferos. The second
we introduce in this tutorial: quicquid plantatur solo, solo cedit.
Worksheets and tutorial sheets will contain live LexisNexis and Westlaw links.
I. ‘Ad coelom’ doctrine
Reading
Anchor Brewhouse Developments Ltd v Berkley House (Docklands Developments) Ltd [1987] 2
EGLR 173. The material facts (for our purposes) are reproduced below. However see Scott J’s
discussion at 175 – 176 where he deals with the first question of whether oversailing cranes amount
to a trespass, and discusses other relevant authorities. Note as well Scott J’s reservations at the end
of his reasons for judgment (page 178).
Page 174 (brief outlines of facts):

For the purpose of developing its site the defendant or one of its contractors has been using and is using a
number of tower cranes. A tower crane is static. When not in use the boom or jib of the crane must be left
free to swing, like a weather vane, in the wind. Otherwise there is a danger that the crane may collapse in a
high wind. So the boom must be left free-swinging.

Both when free-swinging and when in use the booms swing over the respective properties of the plaintiffs.
This, the plaintiffs contend, is trespass. They say that they have given no permission for the booms to swing
over their respective properties and that they want the trespasses stopped. They have called upon the
defendant to desist, but without avail, and they therefore come to the court for injunctive relief.

The case for injunctive relief, save in one respect, is not based upon any actual or apprehended damage to
the plaintiffs' respective proprietary interests. The plaintiffs seek injunctions simply on the footing that they
are owners of their properties and that trespass has been committed and is threatened to be continued.

Kelsen v Imperial Tobacco [1957] 2 Q.B. 334 – sign hanging over another’s property
Woollerton and Wilson Ltd v Richard Costain Ltd [1970] 1 WLR 411 – tower crane hanging over
land
(note that the approach of Stamp J in suspending the remedy due to the victim of the
tortious action, which was an injunction restraining the trespass [an injunction is a remedy

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 by which the subject of the order is either to refrain from doing something, or compelled
to do something], was criticised by the EWCA in Jaggard v Sawyer)
Jaggard v Sawyer and another [1995] 2 All ER 189 established that in certain circumstances the
court may award damages in lieu of an injunction, these circumstances being where:
(i) the injury to the plaintiff's rights was small,
(ii) its value was capable of being estimated in money and
(iii) of being adequately compensated by a small money payment and
(iv) it would be oppressive to the defendant to grant an injunction.
Questions
1. Is the ad coelom doctrine of any relevance, or is it one of those legal fictions that can be done
away with?
2. Do you think the factors outlined in Jaggard v Sawyer adequately address Scott J’s reservations
in Anchor Brewhouse?
II – Fixtures
The maxim quicquid plantatur solo, solo cedit translates to “whatever is affixed to the soil belongs
to the soil”. It is essentially the notion that what would normally be deemed a chattel may be part
of the land. For examples the steel, bricks and bags of concrete transported to a particular parcel
of land, which are then used to build a house on that land, become a part of the land.
Aside from those which constitute a part of a building, other chattels may be deemed to be the
property of the owner of the land. The authors of Megarry and Wade posit that there are really
three classifications (rather than the traditional distinction between land [which included ‘fixtures’]
and chattels):
i. chattels;
ii. fixtures
considered a part of the land
iii. part and parcel of the land itself.
In law, (ii) and (iii) will be considered a part of the land, but not (i). As the authors note, “[t]his
classification is intended to ensure that ‘fixtures’ bears the same limited meaning in law as it does
in everyday life”. In everyday usage a fixture is something attached to a building (think doors,
bathtubs); the layman would hardly call a building, or the concrete and steel which constitute it,
“a fixture”. Note however that this is an academic classification which is noted as an emerging
school of thought; older cases will consider (ii) and (iii) as a single category, using “fixtures” and
“part and parcel of the land” interchangeably.
The question as to whether a chattel remains a chattel, is deemed a fixture or becomes a part and
parcel of the land is relevant as it relates to the transfer of land (to the question of what assets are
deemed as a part of the land and therefore the property of the transferee), but typically arises in
the context of leases where it needs to be determined whether the landlord, upon “reversion”, is
now the owner of the chattels in question. In the context of leases there is also a classification
known as “tenant’s fixtures”, but more on this later…

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Before moving on, address your mind to the following scenario:
Paul has purchased a dwelling house from Veronica, but is yet to take possession. He
however gets wind that Veronica is removing some items he saw on his walk through before
purchasing, including carpeting, paintings, wallpaper, French windows and appliances
(TVs, microwave, stereos) which were plugged into sockets in the wall. He has also heard
that Veronica is arranging to have removed a shipping container which was in the
backyard and used for storage.
Paul is concerned about these developments and wants to stop Veronica from removing
these items. What advice do you have for him?
So how do we determine if a chattel has become a fixture?
Blackburn J in Holland v Hodgson (1872) L.R. 7 C.P. 328 at 334 had the following to say:
[I]t is very difficult, if not impossible, to say with precision what constitutes an annexation
sufficient for this purpose. It is a question which must depend on the circumstances of each
case, and mainly on two circumstances, as indicating the intention, viz., the degree of
annexation and the object of the annexation.
and at 336:
Perhaps the true rule is, that articles not otherwise attached to the land than by their own
weight are not to be considered as part of the land, unless the circumstances are such as to
shew that they were intended to be part of the land, the onus of shewing that they were so
intended lying on those who assert that they have ceased to be chattels, and that, on the
contrary, an article which is affixed to the land even slightly is to be considered as part of
the land, unless the circumstances are such as to shew that it was intended all along to
continue a chattel, the onus lying on those who contend that it is a chattel.
The primary test is therefore the intention of the person making the annexation, such intention
being an objective intention.1 Two factors to take into account in determining this intention are the
degree of annexation and the purpose of the annexation. Wooding CJ in Mitchell v Cowie (1964)
7 WIR 118 at 121 listed six useful principles in this regard.
Owusu lists five separate factors to take into account, viz.
(a) the relation to the land of the party making the annexation,
(b) the degree of annexation (mode of annexation),
(c) purpose of annexation,
(d) damage to the land and chattel on removal,
(e) custom and usage.

1
As noted by Wooding CJ in Mitchell v Cowie (1964) 7 WIR 118 at 121.

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This five factor approach can however fit within the two factor approach:
(a) degree of annexation, taking into account:
i. the mode of annexation
ii. damage to the land and chattel on removal
(b) The purpose of the annexation, taking into account:
i. the relation to the land of the party making the annexation
In this regard not the dicta of Georges JA in O’Brien Loans Limited v Missick [1977]
1 BLR 49: “In cases where for example a yearly tenant attached a wooden house to
[a] column anchored in the ground there would seem to be no reason why the degree
of annexation should result in the house ceasing to be a chattel and becoming a
tenant’s fixture. On the other hand the owner of a fee simple or of a long lease who
erects such a structure to his land would reasonably be held to have intended to
improve the land unless there was compelling evidence to the contrary.”
ii. custom and usage
Reading
In considering the cases below, consider the “expanded” two-factor approach above.
Leigh v Taylor [1902] A.C. 157 [re an ornamental tapestry]
Earl of Halsbury L.C.
Here we have objects of ornamentation of very great value. Undoubtedly their only function in life,
if it may be so called, is the decoration of a room. Suppose the person had intended to remove them
the next month or the next year or what not, I do not know, notwithstanding the ingenious effort
that has been made by Mr. Levett, in what other way they could have been fastened than they were.
We have seen the hard matchboard to which they were fastened in the first instance; then canvas
was stretched on it, and the decoration of the wall as it originally stood was perfectly preserved
except to the extent to which the nails were driven into the wall; they were necessarily driven into
the wall, because otherwise the tapestry could not have been stretched out firm, as it was. I do not
know any other mode by which the large one, for example, fourteen feet long, could have been
placed there as it was. One has immediately before one's mind's eye cases of pictures of another
sort, and after all, although this tapestry is very valuable, as I understand, and very beautiful, it is
only a picture made in a particular form - it is a picture, whether woven or worked or what not,
made for the purpose of ornamentation. When one looks at it and sees what it is, I should have
thought, if ever there was an extreme case in which it would have been impossible to suppose that
the person intended to dedicate it to the house, it was the case of these tapestries, which can be, and
in fact have been, removed without anything but the most trifling disturbance of the material of the
wall.

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D'Eyncourt v Gregory (1866) LR 3 Eq 382 [re, inter alia, tapestries, some ornamental statues of
lions in the hall, staircase and gardens, some vases]
Lord Romilly MR:
The principal question is, which of the articles more or less closely attached to the house are
removable, and which are not removable; and with respect to them, I have felt, and do feel, very
considerable difficulty…
The first of these which I think proper to mention is the tapestry which was put up by the testator…
himself. It is clear that the testator could not have disposed of paper affixed to the walls, nor, if he
had used silk instead of paper for lining the walls, could he, in my opinion, have removed the silk.
So, if the testator had covered the walls of the house with panelling, he could not, in my opinion,
have removed the panelling, and have left the walls bare. If he caused them to be painted in fresco,
he could not have removed the paintings, and I think if he had caused the panels to be painted he
could not have removed the painting any more than if he had put in panels already painted, and
fixed them close to the wall. In all these cases I think they must be considered to be fixtures not
removable by the tenant for life.
Upon considering the case of the tapestries already fixed at the death of [the testator], I have come
to the conclusion that these fall within the description of such matters as those I have just
enumerated, and that they could not be removed; in other words, that the testator himself could not
have been allowed to remove them… Although this is not as complete as if the tapestries were
actually affixed to and inseparable from the walls themselves, which, I apprehend, is never done,
still I think they must be treated as part of the wall itself, and by so placing them [the testator]
deprived himself of the power of removing them. In the same class with these tapestries is [a certain
painting]… The observation that "the painting and gilt frame may be removed easily and without
damage, and if the painting were removed, and the framework were filled in with figured satin in
the same manner as all the other panels in the room," is, in my opinion, very pregnant. Both the
painting and the tapestries could be removed unquestionably in this sense, that they could be taken
down, and the space left or filled with satin, and so likewise the satin in the frames could be taken
down, and the gaps replaced by paper, in the same manner as the tapestry might be replaced with
satin; whereas the paper, being stuck close to the wall, could not be removed: but, in my opinion,
in all these cases, whether it is the paper, or the satin, or the panels, or the tapestry, they are all part
of the wall itself, and they are fixtures not to be removed. In all these cases the question is not
whether the thing itself is easily removable, but whether it is essentially a part of the building itself
from which it is proposed to remove it, as in the familiar instance of the grinding-stone of a flour-
mill, which is easily removable, but which is nevertheless a part of the mill itself… The chimney-
glass, and the ornamental frame, and the oil-painting surmounting it, appear to me to be no part of
the house itself, or of the wall itself, but to be merely ornaments attached to it which the testator
might have removed. The carved and gilt frames filled with blue and white satin, as I understand
the evidence, fall exactly in the same category as the tapestry, and are, in fact, instead of what is
usually paper, a covering of the walls, and form part of the walls themselves.
With respect to the carved kneeling figures on the staircase in the great hall, and the sculptured
marble vases in the hall, they appear to me to come within the category of articles that cannot be
removed. I think it does not depend on whether any cement is used for fixing these articles, or
whether they rest by their own weight, but upon this - whether they are strictly and properly part of
the architectural design for the hall and staircase itself, and put in there as such, as distinguished

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 from mere ornaments to be afterwards added. There may be mansions in Englandon which statues
may be placed in order to complete the architectural design as distinguished from mere ornament;
and when they are so placed, as, for instance, they are in the cathedral of Milan, I should consider
that they could not properly be removed, although they were fixed without cement or without
brackets, and stand by their own weight alone… I admit that the distinction between such statues
as are added by way of ornament, and such as belong to an architectural design, and form part of
the design itself, is extremely thin, and that in many cases it would be difficult to distinguish them,
unless it were done in an arbitrary manner, so closely might one run into the other. But I am unable
to suggest any other mode by which the true construction can be defined more accurately than that
which I have already stated. Accordingly evidence must in every case determine whether the article
falls within or without the line. In the present case I have thought the articles which I have
mentioned are not removable, relying upon the evidence given and the drawings laid before me.
The same rule will apply to the lions at the head of the flight of steps in the garden, and the sixteen
stone garden-seats in the garden itself. These, in my opinion, must go with the estate, and are not
separable as mere loose personal chattels.

Berkley v Poulett and others [1977] 1 EGLR 86 [re some valuable paintings (set into oak
panelling), a large marble statue weighing half a tonne and resting on its own weight and a large
sundial also resting on its own weight outside the south wing]
Scarman LJ:
[A] degree of annexation which in earlier times the law would have treated as conclusive
may now prove nothing. If the purpose of the annexation be for the better enjoyment of the
object itself, it may remain a chattel, notwithstanding a high degree of physical annexation.
Clearly, however, it remains significant to discover the extent of physical disturbance of
the building or the land involved in the removal of the object. If an object cannot be
removed without serious damage to, or destruction of, some part of the realty, the case for
its having become a fixture is a strong one. The relationship of the two tests to each other
requires consideration. If there is no physical annexation there is no fixture. Quicquid
plantatur solo solo cedit. Nevertheless an object, resting on the ground by its own weight
alone, can be a fixture, if it be so heavy that there is no need to tie it into a foundation, and
if it were put in place to improve the realty. Prima facie, however, an object resting on the
ground by its own weight alone is not a fixture: see Megarry and Wade, p 716. Conversely,
an object affixed to realty but capable of being removed without much difficulty may yet
be a fixture, if, for example, the purpose of its affixing be that “of creating a beautiful room
as a whole” (Neville J in In Re Whaley [1908] 1 Ch 615 at p 619). And in the famous
instance of Lord Chesterfield's Settled Estates [1911] 1 Ch 237 Grinling Gibbons carvings,
which had been affixed to a suite of rooms 200 years earlier, were held to be fixtures. Today
so great are the technical skills of affixing and removing objects to land or buildings that
the second test is more likely than the first to be decisive. Perhaps the enduring significance
of the first test is a reminder that there must be some degree of physical annexation before
a chattel can be treated as part of the realty.
Stamp LJ:

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 I find it impossible to conclude that on the setting up of the panelling around them they lost
their character as chattels and became part of Hinton House. They were still enjoyed as
theretofore as pictures albeit in a different setting and removed with little more difficulty
than any large framed portrait fastened to a wall by mirror plates. …That statue was no
doubt sited at a key point in the most advantageous position in the grounds; and just as a
picture is placed in a room not merely for the purpose of its enjoyment as a picture but also
to embellish and beautify the room in which it is placed and may be positioned for that
purpose, so no doubt was the Greek athlete statue sited. This particular statue if fixed at all
to the plinth on which it stood was removed with minimal damage and in my judgment it
did not lose its character as a chattel to be enjoyed as such by reason of being so fixed.
Similar considerations in my judgment apply to the sundial, which was removed and was
removed without any damage at all.
Lookahead Investors Limited v Mid Island Feeds (2008) Limited & Ors [2012] JMCC 8 [as a brief
background, there was a question as to whether certain “wharf equipment” was a part of the land.
There was definitive finding on this point, however note the discussion at [28] – [37]]

Has the dwelling become a part of the land (‘chattel houses’)?

Mitchell v Cowie (1964) 7 WIR 118 [house made of hollow clay blocks on concrete pillars]
H. E. Dibble Ltd. And Another v. Moore. West [1970] 2 Q.B. 181 [greenhouse resting on
its own weight]
O’Brien Loans Limited v Missick [1977] 1 BLR 49 [wooden house on wooden beams,
bolted at four corners to concrete columns, with a flush toilet connected to a septic tank;
year-to-year tenant]
Elitestone Ltd v Morris and Another [1997] 2 All ER 513 [bungalows that couldn’t be
removed without being destroyed]
Chelsea Yacht and Boat Co Ltd [2001] 2 All ER 409 [note in particular the observations
regarding degree of annexation and purpose of annexation at [24] – [25]]
Mew and another v Tristmire Ltd [2011] EWCA Civ 912 [houseboats which couldn’t be
removed without being destroyed. Note in particular the two “irrelevant” considerations at
[21] – [22]]

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