The Lord of the Manor and Legitimate Airspace Rights Under English and Feudal Law

Introduction

The concept of ownership under English property law has long extended beyond the mere surface of the soil. The feudal framework recognized the lord of the manor as not merely a holder of land but as a seignorial authority entitled to numerous manorial incidents over the territory. These incidents covered timber, minerals, herbage, waste, and even incorporeal rights such as fishing or hunting. By extension, the lord’s control of the manorial estate, especially one encompassing 17,000 acres of territory, provides a strong historical and legal foundation for legitimate airspace rights under both feudal and modern English law.

I. The Feudal Maxim: Cuius Est Solum, Eius Est Usque ad Coelum et ad Inferos

• The foundational principle in English common law is the maxim cuius est solum, eius est usque ad coelum et ad inferos — “whoever owns the soil owns to the sky above and to the depths below.”

• This maxim, traceable to medieval legal reasoning, underpinned the rights of the lord of the manor to control access not just to the soil and its resources, but to the column of airspace above.

• Thus, the lord’s dominion extended vertically, encompassing the air immediately above the land as much as necessary to protect the estate’s enjoyment, whether for construction, forestry, or preservation of seignorial incidents.

II. Manorial Incidents and Control of the Waste

• A manor of 17,000 acres, especially one including 11,000 acres waste, forest, heath, lakes, and moorland, historically placed in the lord’s hands the rights to timber, turf, minerals, and herbage.

• Tenants enjoyed limited “profits à prendre” such as estovers, turbary, or common of pasture, but these were subject to the lord’s overarching rights.

• The same logic extends upward: just as the lord controlled what grew upon the soil, he also retained the authority to regulate branches, overhanging limbs, or encroachments into the airspace above his demesne.

• The airspace was therefore considered an incident of the seignory — as much a part of the manor as the physical soil.

III. Jurisdiction and Enforcement Through Manorial Courts

• Manorial courts, particularly the court baron and court leet, enforced the lord’s rights against trespass and encroachment.

• Tenants could be amerced for unlawful felling of timber, grazing beyond custom, or taking resources without leave.

• In the same way, the lord could enforce claims against intrusions into the manorial airspace: the erection of unauthorized structures, the projection of smoke or waste, or any infringement that compromised the lord’s rights of enjoyment and use.

IV. Modern Legal Recognition of Airspace Ownership

• The principle was carried into modern law. In Kelsen v. Imperial Tobacco Co. [1957] 2 QB 334, it was held that an advertising sign projecting into the claimant’s airspace constituted trespass.

• In Bernstein v. Skyviews & General Ltd [1978] QB 479, the court refined the doctrine, limiting ownership of airspace to “such height as is necessary for the ordinary use and enjoyment of the land and the structures upon it.”

• These cases affirm that the lord of a vast estate continues to hold enforceable airspace rights, particularly to prevent physical encroachments and to protect the ecological and economic functions of the manor.

V. Application to a Lordship of 11,000 to 17,000 Acres

• With control over such a large expanse of land, including waste and forest, the lord of the manor enjoys a presumption of vertical dominion over the corresponding airspace.

• This encompasses rights to:

  • Exclude intrusions (e.g., overhanging structures, unauthorized aerial projections).

  • Preserve ecological services (oxygen release, carbon sequestration).

  • Monetize environmental rights, including carbon offsets and atmospheric benefits, as a modern form of manorial incident.

• The vastness of the territory magnifies these rights: with 17,000 acres under one seignorial title, the lord’s airspace rights extend across an area larger than many modern municipalities.

VI. Conclusion

From feudal precedent to modern case law, the Lord of the Manor and Forest and Bailiwick with seignorial rights over 17,000 acres possesses legitimate airspace rights under English law. The principle of vertical dominion, rooted in the maxim usque ad coelum, affirms that the lord’s authority extends to the air immediately above his lands. This authority is not theoretical but enforceable — recognized by both medieval manorial courts and contemporary judicial decisions. In the age of environmental economics, these rights provide a legal basis for asserting claims to carbon offsets, ecological services, and the protection of airspace as part of the enduring incidents of manorial tenure.