Surveying to the Inferno and the Heavens?
Surveyors spend considerable time and effort determining the horizontal limits of property ownership, but many aspects of the surveying profession bring a vertical component into the determination of property rights. Construction of modern bridges, airports, rail lines, and utilities raise new questions regarding the vertical limits of individual control. Recent developments in principles related to mineral estates also demonstrate the significance of the Z-axis.
The Extent of Fee Title
In early decisions, an undivided fee title was presumed to extend to the inferno and to the heavens. However, this general principle has been limited above the surface by the development of air travel and associated law. In the landmark decision United States v. Causby: 328 U.S. 256 (1946), the U.S. Supreme Court affirmed that the rights of landowners do not extend to interrupting air travel occurring far above the surface: The United States relies on the Air Commerce Act of 1926, 44 Stat. 568, 49 U. S. C. § 171, …Under those statutes the United States has “complete and exclusive national sovereignty in the air space” over this country…They grant any citizen of the United States “a public right of freedom of transit in air commerce through the navigable air space of the United States.”
In general, recent rulings nationwide continue to recognize that subsurface property rights extend to the center of the earth. A corollary to this principle is that an underground intrusion through the boundary constitutes a trespass in a manner similar to that applied to a surface dispute. Hartman v. Texaco Inc.: 937 P.2d 979 (1997) exemplifies the prevailing standard: We recognize that in New Mexico an action for common law trespass does provide relief for trespass beneath the surface of the land.
One notable exception to the national standard is found in the Texas decision Coastal Oil v. Garza Energy: 268 S.W.3d 1 (2008). In this ruling, the court concluded that equipment associated with hydraulic fracturing was covered by the rule of capture and was not therefore a trespass. This decision has been criticized and ultimately rejected by several subsequent federal rulings.
A recent Maryland decision summarizes the view of many courts regarding the vertical extent of a legitimate fee title. Stansbury v. MDR Development: 871 A.2d 612 (2005) describes a dispute where MDR sought to build a bridge over an artificial canal where the bed of the canal was owned in fee by Stansbury. The court concluded: In Maryland, “the owner of land in fee holds all of the complex elements of a single right, a bundle of sticks, if you will, which include not only the right to use the surface,…but so much of the superjacent airspace as he can use, as well as the subajacent reaches below.” ... Ms. Stansbury has a property interest in the air space above the subaqueous land of which she is the fee simple owner.
Extent of an Easement
Fox v. Hinton: 99 S.E. 478 (1919) is an early West Virginia decision that considers the extent of a public road easement. The court concludes that the easement acquired includes not only the right of surface travel in many types of vehicles, but also the rights above and below the surface associated with utilities, including those utilities that may be installed at a future date.
Some roads may become “vertically challenged” when the agency charged with road maintenance determines that the road surface must be raised or lowered significantly in order to accommodate new designs mandated by increased traffic. Existing utility easements under or above the road must be considered and their rights will be dependent in part on the order of easement creation. If the road easement is senior, the utilities may suffer a forced relocation, but a pre-existing utility easement may have rights that cannot be taken by a subsequent creation of the roadway easement.
Additional problems can arise when the proposed re-grading will make reasonable access difficult or impossible for adjoining lots that have legitimate rights of access to the road. While a public easement generally includes the right to change road grades, the elimination of the right of access is usually considered a taking that must be compensated.
As property rights become more complex and finely delineated, courts must wrestle with the extent of the right created and its place within the regulatory system. An interesting example appears in Macht v. Baltimore City: 296 A.2d 162 (1972). In this instance, the owners of the Blaustein building negotiated an agreement with the neighboring landowner to maintain an open space in front of the windows of the Blaustein structure to a height of 124 feet. The lease for airspace was finalized in 1961 and was to continue for 98 years without any provision for renewal. The court split in their decision, arguing the nature of the right and whether it represented a separate taxable entity.
Mineral Estate with Riparian Boundary
For land use professionals associated with the energy industry, the current trends expanding recovery of oil, gas, and other mineral resources and property rights associated with mining and drilling generate additional complications involving property rights in three dimensions.
An unusual problem associated with boundary retracement occurs when a mineral estate is bounded by a riparian boundary that is subject to the effects of accretion and erosion. Rulings on this issue are rare, but a recent decision from Arkansas summarizes the consensus of the few relevant cases. The court notes that the surface and subterranean estate must be measured with the same yardstick. As a result, if the boundary of the surface estate is affected by accretion or erosion of a stream bed called for in the deed, the limits of the mineral rights are similarly affected.
The Arkansas decision Swaim v. Stephens Production Co.: 196 S.W.3d 5 (2004) includes an admirable summary of what little case law is currently available on the topic, along with the rationale for the decision. Quoting the 1980 Oklahoma ruling Nilsen v. Tenneco Oil Co.: 614 P.2d 36, the Arkansas court observes: The trial court had ruled that a severed mineral interest could not be lost by accretion. The Oklahoma Supreme Court disagreed based upon its view that distinguishing between severed and unsevered mineral interests would allow fee owners to convey a greater mineral estate than they themselves possess. … The court also noted that such a rule would inevitably result in inequities because an unsevered mineral interest would still be subject to loss by virtue of accretion; whereas, a severed mineral interest would never be subject to such loss. This analysis was also supported by the 1983 Montana ruling Jackson v. Burlington Northern, Inc.: 667 P.2d 406 (1983).
Swaim v. Stephens also observes that several legal treatises dealing with this issue support the premise that mineral rights are subject to accretion and erosion. The situation is further complicated by the effects of Arkansas statute Ark. Code. Ann. § 22-5-404 (2004).
Several rather one-sided articles have been written condemning the recognition of accretion relating to subsurface interests in land. However, a more comprehensive article, Alternatives to Accretion: Daniel K. Brough – 2004 B.Y.U.L. Rev. 169, recently considered this problem and proposed four alternatives to the present system, but conceded that none were completely satisfactory.
Rights in Metropolitan Areas
In major metropolitan areas, subsurface rights encompass numerous activities. Subways, major utility installations, and other structures create new dimensions to add to the difficulties faced by the surveyor. At least one court has emphasized the increasingly complex nature of property interests to be found below ground surface. Each tunnel constructed creates a new possible activity underground that would have been impossible to contemplate before the structure was completed. An Illinois ruling, Kankakee Board v. Tax Appeal Board: 226 Ill. 2d 36; 871 N.E.2d 38 (2007), admirably summarizes this concept: “Piers, bridges, and underground tunnels ‘create’ new property where none existed before, in spaces that were heretofore nonassessable. Piers extend into water, bridges soar into air, and tunnels create space below the surface of land. Upham holds that such man-made creations have a ‘separate existence from the land in which they are constructed,’ and are assessable real property belonging to their constructors.”
This is only a sample of the many survey situations that may require consideration of the Z-axis. Ignoring the vertical component may create problems for the surveyor, but this also represents an area of study that may lead to additional business opportunities.
Neither the author nor POB intend this column to be a source of legal advice for surveyors or their clients. The law can change over time and differs in important respects for different jurisdictions. If you have a specific legal problem, the best source is an attorney admitted to the bar in your jurisdiction.