This document discusses the extent of ownership and rights regarding land below the surface and adjacent support. It outlines that under Section 44(1)(a) of the NLC, a landowner has exclusive use and enjoyment of the land below the surface that is reasonably necessary. However, this is subject to other laws. Trespassing underground onto another's land can constitute trespass. Adjoining landowners also have a right to support from neighboring lands to maintain the land in its natural state. However, there is no right to additional support for land in a weakened excavated state. Some jurisdictions have extended this right of support to include buildings erected on the land. The document provides various case examples to illustrate these principles.

1. Areej Torla
areej@iium.edu.my
EXTENT OF OWNERSHIP AND
ENJOYMENT OF LAND
(PART 2)

2. RIGHT BELOW THE SURFACE

3. 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”

4. 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.

5. 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.

6.  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.

7.  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.

8. 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”

9. “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.

10.  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.)

11.  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.

12. “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;

13.  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.

14.  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;

15.  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.

16. RIGHT OF SUPPORT

17. 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”

18.  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.

19. 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”

20. 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.

21.  “ 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.

22.  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.

23. 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.

24.  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.

25. 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”