There is nothing which so generally strikes the imagination, and engages the

affections of mankind, as the right of property; or that sole and despotic dominion
which one man claims and exercises over the external things of the world, in total
exclusion of the right of any other individual in the universe.1
To what extent is this view of property (when applied to land) an accurate
reflection of property jurisprudence in the common law world, and to what
extent is such a view defensible in the context of the imperatives of contemporary
environmental protection?
The concept of property may be elusive and it may be the ultimate fact about
property is that it does not really exist: it is a mere illusion.2
In a variety of common-law legal systems, it is often left to the office of the judiciary
to examine the fundamental principles governing what we perceive to be property.
Indeed, as Rotherham notes, judge-made doctrine is in large part responsible for
deciding which resources may be owned, which social facts give rise to proprietary
rights and obligations, and the very content of those rights and obligations.3
However, the concept of property is said to be such a conspiracy of unsophisticated
semantic allusions that many individuals do not properly grasp what it means to hold
property.4 This is perhaps somewhat understandable, since property is a socially
constructed concept, it is unsurprising that a multitude of definitions have been
proffered by jurists and academics.5
Therefore, if we are to consider Blackstones theory that property is merely the
exercise of ones rights over another, it will be necessary to conduct an analysis of
both case law and academic literature. Our inquiry will be threefold: firstly, as
Professor Wiley notes, a knowledge of legal history is often essential 6 to the
understanding of land law, so it will be necessary to conduct a short review of
historical land law concepts. Secondly, we must subject these historical legal concepts
to various jurisprudential analyses to gain an appreciation for the philosophical and
theoretical underpinnings of property in respect to land. Thirdly, and finally, we must
attempt to reconcile these jurisprudential concepts against the contemporary backdrop
environmental protection imperatives in order iron out any logical incongruities, and
to ultimately assess the accuracy of Blackstones statement.
Prior to the Norman Invasion of 1066, it is believed that all land in Britain and Ireland
was held allodially, meaning that the landowners holding was absolute: he owed no
obligation to a third person or superior landlord. 7 However, following the Norman
Invasion, all land in the British Isles has been subject to a system of relative, as
1 William Blackstone, CommentariesontheLawsofEngland(first published 1765, 1982 ed) vol 2,2.
2 Yanner v Eaton (1999) 201 CLR 351 at [17] per Gleeson CJ, Gaudron, Kirby and Hayne JJ.
3 Craig Rotherham, Conceptions of Property in Common Law Discourse (1998) 18 Legal Stud. 41,
43
4 Kevin Gray and Susan Francis Gray, Elements of Land Law (5th edn, OUP 2009) 87
5 ibid at 91
6 J.C.W. Wylie, Irish Land Law (3rd edn, Butterworths 1997) 8
7 Northern Ireland Law Commission, Consultation Paper on Land Law (NICL 2, 2009) para 2.5

opposed to absolute, ownership.8 It is, therefore, legally incorrect to say that one
owns land, since the correct phrase would be that one owns an estate in land, the
difference being that an estate refers to the rights associated with a parcel of land, as
opposed to being the land itself. In essence, this distinction arises from the fact that
the Queen is still the owner of all the land and we can only have a part of what the
Queen owns.9 Notwithstanding this, the concept of land itself has proven difficult, as
the term can be used as a synonym for a variety of things.10
Certainly, prior to the enactment of the 1862 Company Act, land was considered to be
such a useful mechanism for social and economic utility that it was thought to
constitute a share in the totality of a joint stock companys assets, as held by Lord
Macclesfield, the legal interest of all the stock was in the company, who are trustees
for the several members.11 Fundamentally, a share in a joint stock company could be
held to be land provided the corporation were seized of real estate.12 As Ireland et al.
highlight,
as property, shares were directly related to and co-extensive with the assets
of the company and that their legal nature depended on the nature of those
assets. Shares could be either real or personal estate depending on whether or
not the company owned land.13
For centuries, one of the central precepts of land law was the maxim of Accursius of
Bologna,14 cuius est solum, eius est usque ad coelum et ad inferos literally translated
it means the land holder owns everything up to the sky and down to the centre of
earth.15

8 Denis Keenan, Smith and Keenans English Law: Text and Cases (15th edn, Pearson 2007) 618
9 ibid.
10 Land is perplexingly defined in the Law of Property Act 1925, section 205(1)(ix) as including land
of any tenure, and mines and minerals, whether or not held apart from the surface, buildings or parts of
buildings (whether the division is horizontal, vertical or made in any other way) and other corporeal
hereditaments; also a manor, an advowson, and a rent and other incorporeal hereditaments, and an
easement, right, privilege, or benefit in, over, or derived from land.
11 Child v Hudsons Bay Co. (1723) P. Wms. 207
12 Ex Parte The Vauxhall Bridge Co, (1821) 1 Glyn. & Jac. 101 per Sir John Leach
13 Paddy Ireland et al, The Conceptual Foundations of Modern Company Law (1987) 14(1) J. L. &
Socy 149, 152
14 Kevin Gray, Property in Thin Air (1991) 50 C.L.J. 252, 253
15 Mark Thompson, Modern Land Law (4th edn, OUP 2009) 7