Areej Torla areej@iium.edu.

my

EXTENT OF OWNERSHIP AND

ENJOYMENT OF LAND
(PART 2)
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 Lees 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 owners 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 Ps land
without Ps 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)
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.
(see also treasure troves)
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.
Provided that his land is still in its natural state.

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
neighbours land.
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.
 Court:
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
appellants 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 the withdrawal was caused by
the act of the person against whom the action
was brought.
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