Migratory things on or beneath land: A study of property and rights of use

Clark, Bryan (2005) Migratory things on or beneath land: A study of property and rights of use. PhD thesis, University of Glasgow.

Abstract

This thesis is concerned with a discussion and comparative analysis of how the law allocates property rights in respect of 'migratory things' - objects that appear naturally upon or beneath the ground, but which, by virtue of their own inherent characteristics, move to and fro across different tracts of land. In this sense, the work is concerned with running and percolating water, wild animals, fugacious minerals such as hydrocarbons and other ambient, sub-soil substances. The work's opening chapters (Part I) analyse the development of the common law relative to different migratory things with regard to both Scots and English law. The analysis therein reveals a diverse range of approaches taken to die issue of ownership including that migratory things may be subject to full ownership in situ, characterised by qualified proprietary rights to reduce into possession, or deemed ownerless until reduced into possession. The study reveals, however, that in general, the right to exploit the resource is of more import practically than ownership as such. In this sense, although in some cases limitations have been placed upon the ability of landowners to exploit migratory things, the dominant approach revealed is one of absolute dominium (an absolute right to exploit). One repercussion of this approach - and in fact other allocation rules - is that a legitimate exploitation, wliich has the effect of taldng the resource from the land of another, with generally bestow upon the taker ownership and defeat any rights of ownership that the other previously held therein. This is facilitated by a doctrine termed 'the law of capture'. This judge-made rule provides a real challenge to recognised tenets of ownership, particularly the idea that an owner is protected against appropriation of his things by another without his consent. In Part II, the role of policy inherent in the development of die law relative to migratory things is discussed. Inefficiencies and inequity associated with the absolute dominium approach are then examined and alternative approaches to resource allocation - including correlative rights, prior-appropriation and reasonable use rules - are analysed (primarily by reference to different US regimes for water allocation). The study uncovers a spate of different policy markers that underpin these disparate legal approaches including: encouraging economic investment and industrial development; providing low transactional costs; providing for certain of rights to exploit; recognising the correlative rights of others; conserving the resource; limiting environmental damage; and adhering to existing precedent and constitutional obligations. The work reveals that how a regime determines appropriate policy choices may be grounded upon a number of factors, including: the value of the thing (either in a private, monetary sense or wider social utility fashion); the physical ability to exert control over the substance until reduced into possession; the extent that its presence (and extent of its presence) is knowable in situ, the degree to which knowledge exists as to the impact - either in terms of efficiency or some other social utility repercussion - that any particular exploitation might hold; and how abundant or scarce die resource, in its natural state, is. Part III of the diesis focuses upon die example of water law reform in Scotland in the aftermath of the Water Services and Water Environment (Scotland) Act 2003 ('WEWS'), which will, inter alia, radically shake-up existing approaches to rights of users to exploit water resources. This issue merits attention as water law is clearly the key 'live' issue in the field. By drawing on the policy rationale discussed in relation to different migratory things in previous chapters, the study analyses the extent that the post-WEWS regime is an appropriate one for water governance in Scotland. The regime is judged against a set of criteria which is distilled from various policy markers identified earlier in die work, namely: efficiency; ensuring beneficial uses; and legality. These aims are not compatible in their entirety and how the balance is struck by a regime with regard to competing policy goals is a key issue. In general, the thesis supports die shift from a general laissez faire approach to water abstraction and impoundments to a state-controlled regulatory regime in Scotland. In so doing, however, the work queries whether the policy balance has been struck in the most appropriate way and also identifies a number of pitfalls in the ability of the regime to meet its aims in practice. Conclusions are drawn in Part IV. The analysis presented in this thesis is important in respect of informing discussions regarding water governance in Scotland but it may also contribute to debates over allocation of rights to migratory things generally.

• Item Type: Thesis (PhD)
• Qualification Level: Doctoral
• Keywords: Law.
• Colleges/Schools: College of Social Sciences > School of Law
• Supervisor's Name: Guthrie, Prof. Tom
• Date of Award: 2005
• Depositing User: Enlighten Team
• Unique ID: glathesis:2005-71491
• Copyright: Copyright of this thesis is held by the author.
• Date Deposited: 10 May 2019 14:31
• Last Modified: 09 Aug 2021 15:34
• URI: https://theses.gla.ac.uk/id/eprint/71491