LLB 30203 LAND LAW I

TOPIC : NATURE AND EXTENT OF

ENJOYMENT OF LAND
27/10/2022 Nature and Extent of Enjoyment of Land 2

LATIN MAXIM (ENGLISH LAW)

Cuius est solum euis est usque as coelum et ad inferos

(whose is the soil, his is also that, which is above it)
Meaning: whoever owns a land owns everything extending upwards
into the limitless skies and downwards to the middle of the earth.
In other words, it means that the owner of the surface land owns the
airspace above up to the limits of the atmosphere and the land below
the surface land down to the centre of the earth. It does not impose
any limitation or restrictions.
Note: subject to certain qualifications under English law (e.g: an owner
of the land does not have a right to coal, oil, treasure trove discovered
on the land)
Similar position under the Malaysian law where a person will not have a
right to oil, minerals or treasure found in his land.
27/10/2022 Nature and Extent of Enjoyment of Land 3

MALAYSIAN TORRENS SYSTEM

Section 44 NLC – natural rights of a
proprietor/lessee holder/person granted of
TOL
• - Right to use and enjoy the land
exclusively
• - Right to use exclusively as against the
third party
• - Subject to certain restrictions
27/10/2022 Nature and Extent of Enjoyment of Land 4

Rights of the owner of the land

A. Paramount rights: section 44 of NLC
(i) Right of air space
(ii) Right below the surface
(iii) Right of support
(iv) Right to access to foreshore and seabed

B. Subsidiary rights:
Section 45 – right to extract, move or use rock material
• Right to fell, clear, destroy or use forest produce
27/10/2022 Nature and Extent of Enjoyment of Land 5

(I) RIGHT OF AIR SPACE

Section 44 (1)(a)
• “the exclusive use and enjoyment of so much of the
column of air-space above the surface of the land…,as
is reasonably necessary to the lawful use and
enjoyment of the land”
• Subject to:
• Provision of NLC
• Any written law
(note: the rights in respect of air space are substantially
based on English common law)
27/10/2022 Nature and Extent of Enjoyment of Land 6

CONDITIONS OF THE USE AND

ENJOYMENT OF AIR SPACE
However section 44 of the NLC illustrates that the
right to enjoy one’s land is not absolute but an
exclusive use and enjoyment of land. That
means such right must be exercised in
consideration of the following limitations:
(a) Subject to provisions of NLC
(b) Subject to any written law
(c) Reasonable and necessary
(d) Lawful use
27/10/2022 Nature and Extent of Enjoyment of Land 7

• This does not mean that the owner does

not has right at all on his land.
• The owner would have a dominant right of
occupancy incidental to his ownership of
property and he has right to prevent
unreasonable interference with his
enjoyment over his property.
27/10/2022 Nature and Extent of Enjoyment of Land 8

WHY THE RIGHT TO

AIR SPACE IS NOT
ABSOLUTE?
27/10/2022 Nature and Extent of Enjoyment of Land 9

In England- there are various laws that

provide for a limitation of the landowners’
right to airspace.
Eg. S 76(1) of the Civil Aviation Act 1982
provides that no action against trespass or
nuisance can be maintained by reason of a
passing aircraft at a reasonable heigh
above the ground.
27/10/2022 Nature and Extent of Enjoyment of Land 10

The Air Regulations of 1996 determined that such

a height cannot be lower than 200 meters above
roof level. Exceptions- taking off, landing areas
and in emergency situations.
Then NLC- section 44 where the landowner can
enjoy his airspace but his enjoyment is limited to
what is allowed by the NLC or other laws. His
ownership right is limited to what he can
reasonably use and enjoy.
27/10/2022 Nature and Extent of Enjoyment of Land 11

IN MALAYSIA:
It is provided under the Civil Aviation Act 1969 and
Civil Aviation Regulation 1996, no trespass or
nuisance can be pursued against the aviation
authority.
Both laws are also subject to International Civil
Aviation Organisation (ICAO) and Standards and
Recommended Practices (SARP).
In this respect, the use of the airspace for the
purpose of aviation must be taken into
consideration these two laws.
27/10/2022 Nature and Extent of Enjoyment of Land 12

Civil Aviation Act 1969- section 19(1)

“No action shall lie in trespass or in respect of
nuisance, by reason only of the flight over any
aircraft over any property at a height above the
ground, which having regards to the wind,
weather, and all circumstances of the case is
reasonable”
19(2) – in cases when material loss or damage
occurs to land by the flight of an aircraft, action
may be even taken without proof of negligence.
27/10/2022 Nature and Extent of Enjoyment of Land 13

Cheng Yuen Kiew (F)v Angkasamas Sdn Bhd [2003] 4

MLJ 365, it was held: a land owner is said to be entitled to
exclusive use and enjoyment of his/her land and the air
space above it and the court would not hesitate to grant
perpetual injunction against anyone trespassing into the
land of another or into the air space above it.
Lacroix v The Queen (1954) & DLR 470 (Canada)
Facts: the owner of a piece of land brought an action for
damages against the Crown for establishing a flight-way
over part of his land. Held: the action failed because the
owner has not been deprived of any property right by
reason of the flight–way through the air space above his
land.
27/10/2022 Nature and Extent of Enjoyment of Land 14

ACTION FOR TRESPASS OF AIR SPACE

In other words, in the case of trespass of

airspace in which the D can show that
aircraft has flown within the reasonable
height and for lawful use, it is not
actionable per se unless it can be proven
that the flight has caused actual damage to
the land or property thereon or therein, or
use of the land.
27/10/2022 Nature and Extent of Enjoyment of Land 15

Woolerton and Wilson Ltd v Richard Costain

Ltd [1970] 1 WLR 411
Facts: During the construction period of the London Post Office’s tower,
a crane jib swung over the Plaintiff’s land. P had previously refused
an offer of $250 a week for the right to continue intrusion of his land.
P brought an action against the contractor.
Held: an injunction was granted but after the tower completed and
damages only be granted if a stone fell on P’s house.
Karuppanan v Balakrishnan; Chong Lee Chin & Ors (Third Parties)
[1994] 3 MLJ 584
Facts: The side windows of the Appellant’s hotel protruded into
respondent's land. R sued for trespass.
Federal Court: section 44(1) clearly gave R the exclusive use and
enjoyment of the airspace above the surface of his land, though not a
right to the heaven above. The App has no right to encroach into the
airspace of the R unless he allows it.
27/10/2022 Nature and Extent of Enjoyment of Land 16

USE THE AIRSPACE ABOVE STATE

AND RESERVED LAND
• Meanwhile the State Authority may grant
permit to use the airspace above state and
reserved land pursuant to section 75A of
the NLC.
• The permit may be issued for a period not
exceeding 21 years for the purposes of
erecting, maintaining and occupying a
structure on the state or reserved land.
27/10/2022 Nature and Extent of Enjoyment of Land 17

Swetland v Curtis Airports Corporation

(1932) 55 F 2nd & 201 (USA)
Facts: P owned a large piece of land and D had purchased a
piece of land immediately opposite P’s land. D’s intention was
to established an airport, a flying school and a large car park
to serve the airport. P sent a notice of protest to D stating that
such project would destroy their large property for any future
residential purposes. D ignored the notice and went ahead
with the project. P went to court to seek for an injunction.
Held: The defendants according to the Court of Appeal have the
right to establish airports, but they cannot lawfully establish
one at a place where its normal operation will deprive the Ps
of the use and enjoyment of their property.
27/10/2022 Nature and Extent of Enjoyment of Land 18

Berstein of Leigh (Baron) v Skyview &

General Ltd [1978] QB 479
Griffiths J
“…the section [section 40(1) English Civil
Aviation Act 1949] its protection extends to all
flights provided they are at a reasonable
height and comply with the statutory
requirements…subsection 2 imposes upon the
owner of the aircraft a strict liability to pay
damages for any material loss or damage that
may be caused by his aircraft”
 Nature and Extent of Enjoyment of Land 19

The Q is how high ownership extent so that

vertical and horizontal development could be
done without having any possible action for
trespass?
In US- the height is defined by statute and case
law. Eg Intrusion of neighbour’s airspace at a
level between tree height is a trespass.
Flying aircraft at 83 feet low entitled the owner for
compensation and no flight can fly lower than 200
feet.
27/10/2022

In Malaysia? – Reasonable and necessary use.

27/10/2022 Nature and Extent of Enjoyment of Land 20

• Conclusion:
• The provision of section 44(1) of the NLC
seems to provide for the protection of the rights
of the landowner.
• However, in order for the landowner to seek
remedy for trespass, the height complained of
must be reasonably necessary to the lawful use
and subject to the other provisions of the NLC
1965 and any other written law relating to the
use of airspace.
27/10/2022 Nature and Extent of Enjoyment of Land 21

(II) RIGHT BELOW THE SURFACE

Section 44 (1)(a)
“the exclusive use and enjoyment…of the land
below that surface, as is reasonably
necessary and to the lawful use and
enjoyment of the land”
Subject to:
• Provisions of NLC
• Any other written law
27/10/2022 Nature and Extent of Enjoyment of Land 22

Surface Land

Reasonable depth
27/10/2022 Nature and Extent of Enjoyment of Land 23

Edwards v Lee’s Administrator (1936)

SOW 2nd 1028
Facts: D constructed a cave for tourist attraction. At a distance of 120
meters below the cave, he had encroached upon P’s land.
There was, however, a strong dissenting judgment with the view that
the surface owner should be held to own only those substances on,
above or below surface of the land, which he can subject to his
control.
Held: Whatever is in a direct line between the surface of the land and
the centre of the earth belongs to the owner of the surface.
This means that it is extended to such depths as the surface owner can
use for profit or pleasure and can subject to control.
So, unjustifiably interference with the reasonable enjoyment of the
proprietor’s land may be regarded as a trespass.
27/10/2022 Nature and Extent of Enjoyment of Land 24

The Malaysian law has followed more or less similar

principles to the English common law.
In Karuppannan v Balakrishnen, Chong Lee Chin & Ors
(Third Parties) [1994] 3 MLJ 584, the App bought a hotel
whose sewerage system, manholes and septic tanks
encroached on the R’s land. The R intended to build on
their land but owing to the trespass, they could not
continue the building works that remain at a standstill.
The trial court granted the R an injunction compelling the
App to remove the encroachments.
27/10/2022 Nature and Extent of Enjoyment of Land 25

Q: Can the land owner

utilizes the land as deep as
he wants with full
exclusiveness as stated in
the law?
27/10/2022 Nature and Extent of Enjoyment of Land 26

LEGAL PROVISIONS PERTAINING TO

UNDERGROUND LAND
Prior to the amendments to the NLC, the rights of
the proprietor of any alienated land was limited to
the “exclusive use and enjoyment of only so
much of the land below that surface as is
reasonably necessary to the lawful use and
enjoyment of the land.“
There is nothing specific as to how deep the
proprietor can use his land. His use of the land is
restricted to as deep as he wants to use the land
so long as it is “lawful”
27/10/2022 Nature and Extent of Enjoyment of Land 27

With the new amendment in National Land Code

1965,disposal of underground land was gazetted on 22nd
February 1990. One special part has been created
entitled Disposal of Underground Land under “Part Five
(A)” in the NLC 1965 regarding disposal of underground
land and other things related to it.
After the amendment, State Authorities have been given a
clear power to dispose underground land for new cases of
land disposal. This is because before the amendment,
land owners do not have any limitations in terms of
consumption or distance from underground land under
section 44 (1) (a) NLC 1965.
27/10/2022 Nature and Extent of Enjoyment of Land 28

For the underground space ownership or known as the stratum title, the
rights of the owner are subject to Section 92 B (3) (a) (b) of the NLC .
The underground land can be used in whatever way the proprietor
wishes after obtaining the approval from the State Authority.
According to the National Land Code, Section 92A, underground space
can be defined as land that lies below the surface of the earth.
It is important to identify the need of underground land developed by
the depth so that the underground land development intersection is in
properly order.
This is because once underground land is permanently altered and
develops, it is not easily to demolish unlike the surface buildings.
27/10/2022 Nature and Extent of Enjoyment of Land 29

Right to underground land

Section 92B
• State Authority may specify:
• the use/s of underground land
• the conditions of its use/s; and
• The conditions with regard to the construction
of any structures
• The underground land below the depth specify
remain as State Land.
27/10/2022 Nature and Extent of Enjoyment of Land 30

• Realizing the importance of depth in underground space development, the

Guidelines for Implementation of Underground Space Disposal under the
NLC 1965 was issued, where the minimum depth for the use of underground
space is based on the NLC (Minimum Depth of Underground space)
Regulations 2006 in the NLC 1965 (Act 56).
• The Circular stipulates that the depth of ownership should not be less than 6
m in the case of agricultural land, and not less than 10 and 15 m respectively
for the building and industrial categories. However, these guidelines do not
apply to alienations granted before 2008. The minimum depth is valid only for
the new alienation of surface land.
• For the alienation of surface land without a minimum depth, the underground
space can still be alienated, but only to the surface landowner. This is
because when the depth is not specified, the surface landowner will have the
rights to his underground space and there is no limitation to enjoy the land as
long within a lawful use.
•
27/10/2022 Nature and Extent of Enjoyment of Land 31

Depth Of Underground Land

In brief, the owner of the surface land has the ownership rights under
the NLC for the surface and land below the surface.
The extent in terms of the depth of ownership for the underground can
be specified by the state authority as indicated in the land title or it
may not be so.
Eg the given depth under the JKPTG Circular No.1/2008 in agriculture
land as follow:

Land Surface

6 meters (minimum depth)

x – can apply stratum title

27/10/2022 Nature and Extent of Enjoyment of Land 32

Minimum Depth Of Disposal Of

Underground Land
27/10/2022 Nature and Extent of Enjoyment of Land 33

For underground land cases, if the surface land is the state land,
the under ground land can be alienated to whoever applies it.
This is because section 92D (1), NLC stated that only the land
owner can apply the stratum title if the minimum depth is not
issued in the surface land title.
The basic rule of underground depth is very important to set up
the planning goal for a long term. That’s the reason why in the
early stage of planning, the layer of underground land and the
depth for development need to put into consideration first.
Even though JKPTG Circulation No 1/2008 have provided the
number of minimum depth the surface land owner can enjoy,
but it is only applied to the fresh alienation.
Usually, land is alienated without the specified depth and this
condition will lead to a problem in specifying the development
depth if the underground land wants to be developed.
27/10/2022 Nature and Extent of Enjoyment of Land 34

• Even though Malaysia has set the minimum depth of development, it

is still ambiguous, because since there is no maximum depth of the
utilization.
• This will lead to the argument between landowner and developer; if
the surface landowner claims their rights towards the extension of
ownership while the other parties only want to develop underground
land without interfering other’s rights.
• Different with China, Finland and Japan, where the depth of utilization
has been set based on the layer comprises from 0 meters to 300
meters to ease the future development.
• Hence, Malaysia should be prepared to determine the max. depth of
the underground land to facilitate the future development.
27/10/2022 Nature and Extent of Enjoyment of Land 35

CONCLUSION
Even though the need of underground land in Malaysia is not that
critical if we compared to other developed countries, but the
awareness of the possibilities using under ground land as a new type
of development must be considered starting from now.
• We thus need a proper legal framework for underground land
development as a solution to guarantee the sustainable underground
development in Malaysia.
• We need the best practice for underground land development in
Malaysia because once underground land has been developed, it is
permanent and cannot be altered.
• Therefore, the depth of underground land is very important in
underground land development because it doesn’t act only as a layer
for development, but also the boundary for each and every
development to differentiate the right for surface and underground
land owner.
27/10/2022 Nature and Extent of Enjoyment of Land 36

SUBSIDIARY RIGHTS – BELOW THE

SURFACE
Section 45 (1)(a)
• To extract, move or use any rock material in or upon the
land
• To fell, clear, destroy or use any forest produce
Conditions:
The proprietor of alienated land, lessees of the reserved
land and a licensee under temporary occupation licence
may obtain and use rock material and forest produce
• Within the boundaries of the land alienated and not
outside.
27/10/2022 Nature and Extent of Enjoyment of Land 37

“rock material”
Section 5
• Rock, stone, granite, limestone, marble, gravel, sand, earth,
laterite, soil, mud, turf, peat, coral, shell, guano
• Includes also any bricks, lime, cement or other commodity
manufactured therefrom;
Section 45(2), but not entitle to:
(a) extract any metal or mineral from any rock material in or upon
the land
(b) remove beyond the boundaries of the land any rock material or
forest produce extracted or taken from the land or anything
obtained or manufactured there from
• The right does not extend to extraction of metals or minerals
• Must get permit to extract metals and minerals
27/10/2022 Nature and Extent of Enjoyment of Land 38

Permits to extract metal or minerals

Section 70 NLC
(a) Mining Enactment Cap 147 – for mining lease
(b) Permit/license to remove rock materials
granted by the State Authority under Land
Rules by the State
(c) Permit/license to remove forest produce
granted by the State under National Forestry
(No 313) 1984
27/10/2022 Nature and Extent of Enjoyment of Land 39

WHAT IF YOU FOUND THESE THINGS

BENEATH YOUR LAND?
National Heritage Act 2005
Antiquities?
• Any movable object reasonably believed to be at least 50 years
old
• Any human, plant or animal remains which is reasonably
believed to be at least 100 years old
Treasure trove?
• Money, coin, gold, silver, plate, bullion jewellery, precious stone
or any object or article of value found hidden in or anything
affixed to, the soil or the bed of river
• The owner is unknown or cannot be found
Heritage?
• Any object believed to have cultural heritage
27/10/2022 Nature and Extent of Enjoyment of Land 40

What to do?
Antiquities & treasure trove ( section 74 of
the National Heritage Act 2005)
• Notify the Commissioner or District
Office
• Must be delivered to the District Officer
• Finder of the object & owner of the land
may get paid by the State Authority (at their
discretion)
27/10/2022 Nature and Extent of Enjoyment of Land 41

Cultural heritage
• Notify the Commissioner or District Office
• Deliver the object to the District Officer (if
practicable) – sec. 47 of the National Heritage
Act 2005
• Compensation may be paid to the owner of the
land where the object is found- sec 48 (1)
• As a result of the discovery, this object shall be
the absolute property of the Federal
Government
27/10/2022 Nature and Extent of Enjoyment of Land 42

(III) RIGHT OF SUPPORT

S44 (1) (b)

“the right to the support of land in its natural
state by any adjacent land, and all other natural
rights subsisting in respect thereof”
A land owner is entitled to have the land
supported by neighboring land as well as right
not to have that support removed
Land owner cannot do something on his land or
property that might endanger the property of
others
27/10/2022 Nature and Extent of Enjoyment of Land 43

A NEGATIVE RIGHT
• Unlike other natural rights under section 44 of the NLC
1965, this right of support is a negative right, in which it
refers to a right not to lose natural support from the
adjoining land, this right cannot be interfered by others.
• It give the right to take an action if existing natural support
from the adjoining land is lost or interfered with.
Land in its natural state is entitled only to such a degree of
support that would have required in its natural condition.
No additional support by reason of its weakened state.
27/10/2022 Nature and Extent of Enjoyment of Land 44

CONDITIONS FOR THE RIGHT OF

SUPPORT
a. The land at the lower level must support the land
above it
b. The land must be adjoining with each other,
however the ownership must be separate
c. The land must be in its natural state in order to
be entitled to a right of support from its adjoining
land
d. No additional support is to be given beyond what
is on the land- the owner cannot expect
additional support from the adjacent land if his
land is proven to be in its weakened state
27/10/2022 Nature and Extent of Enjoyment of Land 45

TYPES OF RIGHT OF SUPPORT

I) Cross Right of support for

adjacent land/building
II) Support for adjacent slope
land
27/10/2022 Nature and Extent of Enjoyment of Land 46

Type 1: Cross Right of support for adjacent

land/building
Landowner : right to use property reasonably without unduly
interfering with the rights of the owners of contiguous land.
• Anything that a person does that appropriates adjoining land or
substantially deprives an adjoining owner of the reasonable
enjoyment of his or her property is an unlawful use of one's
property.
• Eg if X’s land suffers damages due to the activities being carried
out by Z where his right of support from the adjacent land has being
infringed, X has a claim against Z for damages loss of right of
support, vice versa.
- Adjacent landowner suffers damages – claim for damages
- Unreasonable use of land that deprives the lawful enjoyment of land
of the adjacent land owners
• Sue under Torts – nuisance
• Remedies – damages, injunction
27/10/2022 Nature and Extent of Enjoyment of Land 47

(II) SUPPORT FOR ADJACENT SLOPE

LAND
The high land has a right of support from the low land
If the low land’s owner does some activities which may
cause damage to the high land or cause the collapse of
building of the high land, the low land’s owner may be
liable to pay damages.
27/10/2022 Nature and Extent of Enjoyment of Land 48

• The basis of a right to support in English law was laid down in the
case of Dalton v Angus.
• Dalton v Angus has entrenched the principle in England as well as
other common law jurisdictions that although a landowner has a
right of support for his land, this natural right of support avails the
land only in its original state unencumbered by buildings or other
constructions. Buildings and other constructions do not enjoy a
right of support and this right has to be acquired, if at all, by
easement
• The facts of Dalton v Angus were briefly as follows.
• There were two adjoining buildings, built independently, but each
on the extremity of its owner’s land and having lateral support from
the soil on which the other rested. The Defendant landowner
employed a contractor to excavate his land which led to a
withdrawal of support in respect of the Plaintiffs’ land. This caused
the Plaintiffs’ building standing on the land, which had been built 27
years before, to collapse.
27/10/2022 Nature and Extent of Enjoyment of Land 49

• The Plaintiffs brought an action to recover damages for

injury to the building.
• On appeal to the Court of Appeal and House of Lords, the
primary issue for determination was “whether, right to
lateral support from adjoining land can be acquired by
twenty-seven years uninterrupted enjoyment for a building
proved to have been newly erected at the commencement
of that time”.
• The House of Lords held that the Plaintiffs had acquired
an easement of support for their building by virtue of the
27 years uninterrupted enjoyment and therefore had a
cause of action against the owners of the adjoining house
for the injury to their building.
27/10/2022 Nature and Extent of Enjoyment of Land 50

• However, the principle in Dalton’s case was

no longer applicable in Malaysia after the
coming of the NLC 1965.
• The presence of section 44(1)(b) of the
NLC confers the right to support of the land
in its natural state by any adjacent land
immediately upon disposal and not after 20
years.
27/10/2022 Nature and Extent of Enjoyment of Land 51

MADAM CHAH SIAM V CHOP CHOY KONG KONGSI (1939)

MLJ 243
P had been in occupation of a large pond on State land (used for
rearing fish). She occupied this together with a small pond under TOL.
The large pond was an old workout tin mine and when it ceased to
operate as a mine, the shallow open cast type was filled with rain
water which resulted in the formation of the large pond.
The land adjoining one end of the pond is held by D (under mining
lease). The mine is a deep open cast mine, worked by monitors.
Due to heavy rainfalls, the bank of the pond collapse, a large breach
opened and the water of the pond poured into the mine, bearing away
the greater part of the fish in the pond.
Issue: doctrine of lateral support to land
P’s contention: the land, containing the pond had an absolute right to
support from the land in the mining lease adjoining- D, having
removed the earth affording that support is liable for the damage
caused.
27/10/2022 Nature and Extent of Enjoyment of Land 52

Held:
Doctrine of lateral support : the right a landowner
has to have that land physically supported in its
natural state by both adjoining land and
underground structures
The pond was excavated by mining – filled up with
water
Rule: the land in its excavated state is not entitle to
lateral support
27/10/2022 Nature and Extent of Enjoyment of Land 53

GUAN SOON TIN MINING CO V AMPANG ESTATE LTD

[1973] 1 MLJ 25

R are owners of certain lands which they have

developed as a housing estate. A were miners
holding a lease over a land lying south of R’s
property.
A minor landslide was reported to have occurred
by A due to heavy rain. A stated that they were in
the course of doing work to restore the land
affected to its natural state. R alleged that
subsequent slips further occurred on the land.
27/10/2022 Nature and Extent of Enjoyment of Land 54

A claimed that the mining operation was carried out in a reasonable

and proper manner and with due care and skill and that the
operations did not interfere with R’s right of support.
Issue: Whether there was a right to support by adjacent land for their
own land in its natural state.
Judgment
Principle: when a subsidence occurs to a neighbor's land, he who
causes the subsidence is liable in damages.
However, where there is a lapse in time between the excavation of land
and the occurrence of the resulting subsidence and during the interval
a change has taken place in the ownership or occupation of the land,
the new occupier is under no liability.
Held: A were not liable as the land had already excavated previously
when A entered into occupation.
27/10/2022 Nature and Extent of Enjoyment of Land 55

• In Lembaga Air Perak v Ding Keng Long

&Ors (Pentadbir Tanah Manjung & Anor,
Third Party)[2019] 8 MLJ 63 the land in
question is entitled to have the right of
support and the parties is entitled to
damages when the excavation of red earth
was carried out by the defendants which
has resulted into immediate threat to the
reservoirs.
27/10/2022 Nature and Extent of Enjoyment of Land 56

• Thus, the adjoining proprietor may be sued only where his

actions or omissions result in the loss of or damage to
support but he cannot be sued if he fails to provide new or
additional support which was not in existence earlier.
• Land in its natural state is entitled only to such a degree
of support as it would have required in its natural
condition, and has no right to the additional support
required by reason of its weakened state.
• The natural state means that there is no interference from
human hands, only act of god. Eg soil erosion due to
heavy rain leads to collapse of land.
27/10/2022 Nature and Extent of Enjoyment of Land 57

(IV) RIGHT OF ACCESS TO FORESHORE

AND SEABED
Section 44(1)(c)
“where the land abuts on the foreshore or any river
or public place, but subject to any express
provision in the document of title, lease or license,
a right of access thereto”

Section 5 – definition of foreshore

27/10/2022 Nature and Extent of Enjoyment of Land 58

foreshore
27/10/2022 Nature and Extent of Enjoyment of Land 59

LAND SUBMERGED BY SEA/WATER

Section 46(1)
• Land submerged by sea - ownership revert to State
Authority
Section 49:
• Shore land or bed of river encroach into alienated land
– the area affected shall ceased to form part of
alienated land- becomes State Land
• But boundaries shall not be affected
27/10/2022 Nature and Extent of Enjoyment of Land 60

• Land that had been affected by the encroachment

of the sea does not form part of one’s land
anymore.
• The same principle is applied to land where it has
been encroached by sea and gradually retreat
and recess.
• In both the situation, the land becomes the state
land and the proprietor losses that part of the
land unless the Chief Surveyor provides
otherwise.
27/10/2022 Nature and Extent of Enjoyment of Land 61

The right to use and enjoy land are

subjected to…
(a) State Authority’s right of access and use
of land to carry public works
- installation, maintenance, use and
repair any drain, sewer, pipe, cable,
wire
- Electricity Supply Act 1990
- Street, Drainage and Building Act 1974
27/10/2022 Nature and Extent of Enjoyment of Land 62

(b) Land Administrator’s Right of Way (LAROW)

- the right to access through a private land to a public
terminal
- e.g: beach
(c) Compulsory acquisition
- public purpose
- residential, agricultural, commercial, industrial or mining
- the land needed by any person/corporation for any
purpose which in the opinion of the State Authority is
beneficial to the economic development of
Malaysia/public generally/a class of the public