https://theses.gla.ac.uk/ Theses Digitisation: https://www.gla.ac.uk/myglasgow/research/enlighten/theses/digitisation/ This is a digitised version of the original print thesis. Copyright and moral rights for this work are retained by the author A copy can be downloaded for personal non-commercial research or study, without prior permission or charge This work cannot be reproduced or quoted extensively from without first obtaining permission in writing from the author The content must not be changed in any way or sold commercially in any format or medium without the formal permission of the author When referring to this work, full bibliographic details including the author, title, awarding institution and date of the thesis must be given Enlighten: Theses https://theses.gla.ac.uk/ [email protected] MIGRATORY THINGS ON OR BENEATH LAND: A STUDY OF PROPERTY AND RIGHTS OF USE BRYAN CLARK Submitted in fulfilment of the degree of PhD within the School of Law, University of Glasgow, August 2005. ProQuest Number: 10391118 All rights reserved INFORMATION TO ALL USERS The quality of this reproduction is dependent upon the quality of the copy submitted. In the unlikely event that the author did not send a com plete manuscript and there are missing pages, these will be noted. Also, if material had to be removed, a note will indicate the deletion. uest ProQuest 10391118 Published by ProQuest LLO (2017). Copyright of the Dissertation is held by the Author. All rights reserved. This work is protected against unauthorized copying under Title 17, United States C ode Microform Edition © ProQuest LLO. ProQuest LLO. 789 East Eisenhower Parkway P.Q. Box 1346 Ann Arbor, Ml 48106- 1346 ^SG O W UNIVERSITY UBRARV! ABSTRACT This thesis is concerned witli a discussion and comparative analysis of how the law allocates propert)'^ rights in respect of ‘luigratoiy tilings’ - objects that appear naturally upon or beneath the ground, but which, by virtue of tlieir own inherent characteristics, move to and fro across different tracts of land. In this sense, the work is concerned witli running and percolating water, wüd 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 thmgs witli regard to botli Scots and EngHsh law. The analysis therehi reveals a diverse range of approaches taken to the issue of ownership includhig that migratory things may be subject to full ownersliip in situ, characterised by quahfied proprietary rights to reduce into possession, or deemed ownerless undl reduced into possession. The study reveals, however, that in general, the right to exploit the resource is of more hnport practically than ownersliip as such. In this sense, altliough in some cases limitations have been placed upon the abdit^r 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 m fact other allocation rules - is tliat a legitimate exploitation, which has the effect of taldng the resource from the land of another, will generally bestow upon the taker ownership and defeat any rights of ownership that the otlier previously held therein. This is facihtated by a doctrine termed 'the law of capture’. Tliis judge-made rule provides a real challenge to recognised tenets of ownership, particularly tlie idea tliat an owner is protected against appropriation of liis things by another witliout his consent. In Part II, the role of pohcy inherent hi the development of die law relative to niigratory tilings is discussed. Inefficiencies and mequit}^ associated with die absolute dorniniuiii approach are dien examined and alternative approaches to resource allocation — including correlative rights, prior-appropriadon and reasonable use rules - are analysed (primarily by reference to different US reghiies for water allocation). The study uncovers a spate of different pohcy markers that underpin diese disparate legal approaches hicluding; encouraghig economic investment and industrial development; providhig low transactional costs; providing for certahit)? of rights to exploit; recognishig the correlative rights of others; conservmg die resource; hiiiiung environmental damage; and adherhig to existing precedent and constitutional obhgations. The work reveals diat how a reghne determines appropriate pohcy choices may be grounded upon a number of factors. including: die value of die thing (eidier in a private, monetary sense or wider social utility fashion); die physical abihty to exert control over die substance until reduced into possession; the extent diat its presence (and extent of its presence) is loiowable in sitir, the degree to wliich Imowledge exists as to die hnpact — either in terms of efficiency or some odier social utihty repercussion — that any particular exploitation might hold; and how abundant or scarce die resource, in its natural state, is. Part III of die thesis focuses upon die example of water law reform in Scodand in die aftermath of die Water Services and Water Environment (Scodand) 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 hve’ issue in the field. By drawing on the pohcy 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 Scodand. The regime is judged against a set of criteria which is distUled from various pohcy markers identified earher in die work, namely: efficiency; ensuring beneficial uses; and legahty. These aims are not compatible in dieir enthety and how die balance is struck by a reghne widi regard to competing pohcy goals is a key issue. In general, the thesis supports the shift from a general laisses^ faire approach to water abstraction and impoundments to a state-controhed regulatory regime in Scodand. In so doing, however, die work queries whedier the pohcy balance has been struck in the most appropriate way and also identifies a number of pitfalls in the abiht)^ of the reghne to meet its ahns in practice. Conclusions are drawn in Part IV. The analysis presented in tiiis thesis is hnportant in respect of hiforming discussions regarding water governance in Scodand but it may also contribute to debates over allocation of rights to migratory things generaUy. Acknowledgements I owe a debt of gratitude to Tom Guthrie of the Law School, Universit)^ of Glasgow, for his supervision of my research. Tom was instrumental in shaping the scope of the thesis and I have profited heavily from his insight, encouragement and criticism over the past few years. I am very tliankful for the many hours he spent wading through numerous drafts of my work. I must also thank Professor BiU Gordon, previously of the Universipr of Glasgow, who initially supervised this project before his retirement. Bill was always encouraging yet frank in liis views about my efforts and above all helped focus my niind as to what a PhD was aU about. Others who have usefully commented on various aspects of this work include the participants of the 2004 Scots Law Faculty Conference at Pitlochry and anonymous journal referees. Without the support of my wife Katiileen I would never have completed diis work. Thank you for your love, understanding, patience and helping raise a smile to my hps in the dark times. I am also thankful for the continual support of my Mum and Dad, family, friends and colleagues (particularly Shaun and Chris for your comradeship, golf and being in the same boat). Finally a special thanks to Flo for the company on aU those late-night vigils spent in front of the computer screen. Bryan Clark, April 2005 TABLE OF CONTENTS Title Abstract ii Acknowledgements iii Contents iv Part I CHAPTER 1: INTRODUCTION 1 CHAPTER 2: PROPERTY RIGHTS IN WILD ANIMALS 10 Overview 10 General points regarding Animals feme naturae 10 Pi'opei'W lights under English law 11 Katmmle 13 Property rights in Scotland 15 Where a party is in ‘hot pursuit’ under Scots and Enghsh law 16 Trespassers and propert}?^ in game 18 Baiting of wüd animals 21 Summary 26 CHAPTER 3: PROPERTY RIGHTS IN WATER 28 Introduction 28 English Law 28 hM,: General Points 28 " f : Riparian rights 29 Underground water not in a Imown and defined channel 31 Comjnent 35 Ownersliip. propel^ rights and subterranean water 36 Water Law in Scotland 39 General points 39 Ownership 40 Riparian Rights 41 'Hon-application of riparian rights to mater outside a defined channel 43 Capture and underground water 44 England & Wales 45 Capture in Scotland 50 The right of support of underground water 55 The water exception in Scotland 57 The Tegal Basis of Siipport in Scotland 58 Capture of water and proprietaiy remedies 59 Natural and non-natural uses of land 61 Summary of water rights 63 CHAPTER 4: PROPERTY RIGHTS IN FUGACIOUS MINERALS AND OTHER SUBSOIL MATERIALS 66 Introduction 66 Hydrocarbons and UK Law 66 US Theories of Hydrocarbon Ownership 68 Hydrocarbons as Res NuUius 68 'Texas Theory’ 70 Qualified Ownership 72 Comment 74 Privy Council Authority 74 Fugacious Minerals in Scots Law 76 A Law of Capture and hydrocarbons 77 Nature of petroleum reserves 77 Origins of the law of capture 78 Capture of hydrocarbons / other fugacious substances 81 Natural Gas 81 Asphalt 83 Tunning Silt 85 Bîine 86 Comment