Property Rights and a Law of Capture

Bryan Clark (Heriot Watt University, Edinburgh)

This article analyses English and Scots law relating to 'migratory things' - ie things which by their own inherent characteristics move to and for across tracts of land - both in terms of what property rights landowners hold in such things and whether the same may be legitimately 'captured' by the actions of others. In reviewing relevant authorities, the article reveals that the law governing this area is opaque and uncertain and displays inconsistencies in approach both within and between different migratory things across the English and Scottish jurisdictions. The analysis suggests that the limitations placed upon rights of ownership in migratory things represents a shot across the bows of general principles of landownership. The article concludes by suggesting that the current state of the law may give rise to a number of practical problems and proposes that there may be a need to reform certain aspects of the law in this area.

Migratory things on land; running water; fugacious minerals; hydrocarbons; law of capture; rights of support.

Cite as: Bryan Clark, Migratory Things on Land: Property Rights and a Law of Capture, vol 6.3 ELECTRONIC JOURNAL OF COMPARATIVE LAW, (October 2002), <http://www.ejcl.org/63/art63-3.html>

1. Introduction
2. Ownership
2.1 What is ownership?
2.2 The importance of ownership
3. General principles of landownership
3.1 The 'infinite carrot'?
3.1.1 England
3.1.2 Scotland
3.2 Practical effects of the doctrine
3.2.1 The doctrine in England
3.2.2 The doctrine in Scotland
3.3 3.3 Subterranean rights
4. Property rights in migratory things
4.1 Property rights in running water in Scotland and England
4.1.1 General points under English law
4.1.2 Riparian rights in England
4.1.3 Property rights and subterranean water in England
4.1.4 General points in Scots water law
4.1.5 Riparian rights in Scotland
4.2 Rights of property in fugacious minerals and other sub-soil materials
4.3 US theories of ownership of hydrocarbons
4.3.1 Hydrocarbons as res nullius
4.3.2 'Texas theory'
4.3.3 Qualified ownership
4.4 English/Commonwealth cases relating to subsoil substances
4.4.1 Natural gas
4.4.2 Fugacious minerals in Scots law
5. A law of capture?
5.1 Law of capture and occupatio
5.2 Water
5.2.1 England and Wales
5.2.2 Scotland
5.3 The law of capture and hydrocarbons
5.3.1 USA guidance on hydrocarbons
5.3.2 Commonwealth guidance - natural gas
5.3.3 Asphalt (pitch)
5.3.4 Running Silt
5.3.5 Brine
6. Concluding remarks
6.1 Comparing ownership rights
6.2 A law of capture and rights of support
6.3 Capture when there is no erosion of support
6.4 Concerns

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