The Court of Appeal, composed of Chief Justice Silvio Camilleri, Mr Justice Giannino Caruana Demajo and Mr Justice Noel Cuschieri, on April 29, 2016, in the case ‘Emanuel and Mary Buhagiar v Alexander Vella and his wife Annabelle’, held, among other things, that an owner of land also owned what was underneath and above it, in absence of proof to the contrary.

Emanuel Buhagiar and his wife Mary were the owners of a terraced field in Wardija, measuring approximately 2,320 square metres, which they acquired on January 2, 1990, in a contract published in the acts of notary Marthese Felice.

Alexander Vella and his wife Annabelle were the owners of the land located just below the Buhagiars’ field.

In June 2010, the Buhagiars noticed that the Vellas had dug out a cavity in their land, at the same level as their property, in order to store straw.

The Buhagiars asked the Vellas to restore the property to its original condition. Although the latter agreed to close up the opening, they failed to fill up the empty space with material and concrete.

The Buhagiars claimed that this was an abusive invasion of their property which prevented them from passing above this area with their equipment and machinery.

Faced with this situation, they proceeded by filing legal proceedings against their neighbour, requesting the court:

1. to declare that defendants Vella occupied and invaded their property by excavating a hole underneath their field, and this without valid title at law;

2. to condemn them to restore their property, to vacate it and to remove what they had illegally built and to fill up this cavity under the direction of an architect;

3. to authorise the Buhagiars to carry out such works to restore their property if the Vellas failed to take any action, which works had to be effected from the level of the neighbours’ field.

In reply, the Vellas submitted that their neighbours’ claims were unfounded. It was stated that the ‘cave’ underneath the Buhagiars’ field had been in existence for a long time well before the Buhagiars had acquired the field in question. They claimed that they had every right to use this space once the only entrance to this area was from their field.

The court considered that the Buhagiars were claiming that the Vellas had abusively occupied an area underneath their field by digging out a space in order to make a garage.

Although it appeared that the Buhagiars were filing an action against spoliation, it was effectively an action rivendikatorja, whereby they asked to recover their property.

The court said that plaintiffs had to prove their title beyond any shadow of doubt. Reference was made to ‘Giuseppe Buhagiar v Ġużeppi Borg’ (1958), where it was held that any doubt went in favour of the defendant who was in possession.

The Vellas admitted in court that they had enlarged the cave

The Buhagiars exhibited in court a copy of their contract of acquisition while the Vellas did not challenge the neighbours’ title, covering the land over the cave. In this respect there was no doubt of the Buhagiars’ title, pointed out the court.

Article 323 of the Civil Code provides that “whosoever has the ownership of the land has also that of the space above it and of everything on or over or under the surface; he may make upon his land any construction or plantation, and, under it, any work or excavation, and draw therefrom any products which they may yield, saving, however, the provisions relating to Praedial Easements under Title IV of Part I of Book Second of this Code and any other provision of law in regard to fortifications or other works of defence”.

The Vellas admitted in court that they had enlarged the cave.

The first court maintained that the Buhagiars were entitled to make their case, and accepted their claims. It ordered the Vellas to vacate the cave within one month and appointed an architect to supervise the works.

Aggrieved by the decision of the first court, the Vellas entered an appeal, calling for its revocation.

They claimed that the first court had failed to consider that, when the Buhagiars bought their field on January 2, 1990, the cavity was already in existence for over 30 years, even though it was not mentioned in the contract.

They alleged having a servitude in their favour and that the ‘dug out space’ in the field did not belong to the Buhagiars.

The First Hall of the Civil Court applied article 323 of the Civil Code, and declared that an owner of land also owned what was underneath and above it.

The Court of Appeal said that it was not proven that the ‘cave’ already existed when the Buhagiars purchased the field in 1990, nor that it was subject to third party rights or that it had been used by the previous owners for over 30 years.

Even if the opening existed before the Buhagiars purchased the field, the Vellas had admitted enlarging the area.

The Buhagiars were entitled to request that their neighbours be ordered to refill the hole with concrete and material.

They also had the right to ask the court to condemn the neighbours to vacate and be evicted from the space in question once it was not proven that they enjoyed any servitude over his field.

For these reasons, on April 29, 2016, the Court of Appeal gave judgment by dismissing the Vellas’ appeal and by confirming the decision of the first court.

Dr Karl Grech Orr is a partner at Ganado Adovates.