We are developing the social individualist meta-context for the future. From the very serious to the extremely frivolous... lets see what is on the mind of the Samizdata people.

Samizdata, derived from Samizdat /n. - a system of clandestine publication of banned literature in the USSR [Russ.,= self-publishing house]

From the earth’s core to the uttermost star: how far up and down should property rights extend?

I see that government ministers have authorised an expansion of fracking in the UK. In general anything that riles up the Greens pleases me. But only in general.

As I understand it – OK, make that “I think I remember reading somewhere” – it has hitherto been the case in the UK that if you own a property you also own what lies below, not just immediately below such that you can prevent someone excavating their bomb shelter under your house, but all the way down in a long thin cone to the Earth’s core. So a property owner can forbid fracking beneath their land however deep the drilling. Anyone know, is this right? And whether it is or not, should it be?

I really do remember reading somewhere a science fiction story in which the entire universe had been assigned to various Earthly nations based on what cone of sky was above the territory of each country at midnight on a particular date. I cannot recall how or if that story dealt with either the effects of terrestrial boundary disputes, possible objections from as yet undiscovered alien species at their involuntary inclusion in one of these thin but infinite empires, or the curvature of spacetime. Granted that “to the edge, if such exists, of the universe” is taking property rights a tad too far, how far above your house should your property rights go?

31 comments to From the earth’s core to the uttermost star: how far up and down should property rights extend?

  • John Johns

    “The Man Who Sold The Moon”. Robert Heinlein.

    “Harriman seeks to avoid government ownership of the Moon. As it passes directly overhead only in a narrow band north and south of the equator, he uses a legal principle that states that property rights extend to infinity above a land parcel. On that basis, Mexico, Central and parts of South America, and other countries in those latitudes around the world, have a claim on the Moon. The United States also has a claim due to Florida and Texas. By arranging for many countries to assert their rights Harriman persuades the United Nations to, as a compromise, assign management of the Moon to his company.” Wikipedia

    From his “Future History” series

  • Paul Marks

    They should certainly go as far as mineral rights (including “fracking”).

    In the United States (at least on private land) people are paid (a market price – real markets depend on PRIVATE OWNERSHIP) if someone wants to “frack” their land – and they can refuse if they do not want it done.

    Neither is the case in the United Kingdom.

    Which is why there is so much more opposition to “fracking” here.

    Still Natalie’s question.

    As a practical matter – no one (sane) is going to claim anything beneath the Earth’s crust (it is a bit hot down there).

    Out into the universe?

    No. One should actually have to go to an uninhabited place to claim it – not just point up at the sky and say “that is mine”.

    Although if constant low flights are actual causing harm (noise and so on) there may be a case for considering them a tort.

  • PersonFromPorlock

    I don’t think there are any property rights to airspace; at least, I can’t charge airliners passing overhead a toll. And any successful complaint against ‘trespassers’ at lower altitudes would probably be based on, say, noise rather than mere presence.

    Going down, it’s likely that at some point a lower limit of property rights will be legally defined, probably as the result of bribery by interested parties.

  • RogerC

    I’m in broad agreement with Paul, I think. Are you using an unclaimed asset? It’s yours, on the homesteading principle. Not using it, just looking at it? Sorry, no claim there. Someone else uses it and thereby causes damage to or restricts you from using your property? Sort it out in court.

    Thus the only way to claim a chunk of Mars (for instance) is to go there and homestead the place. Dale Amon might be able to help you work out the details.

    Speaking very generally and with only a foreigner’s understanding, the U.S. apparently takes the position that any useful minerals found under your property are no different to useful minerals found lying on top of it. They still form part of your property. In my opinion this is an eminently sensible take on things, since in principle you could dig or drill down there and extract them yourself. Regrettably the UK does not follow the same principle, meaning that you won’t be compensated for any shale oil or gas extracted from beneath your land.

    In turn, I think that leads people to look for the negatives in processes like fracking. When you don’t stand to benefit directly from something, your biggest concern will surely be any potential negative ways it will affect you, living at the epicentre, rather than pondering the more widely distributed economic benefits. That in turn will make a lot of people very open to scare stories.

  • bloke in spain

    File this question under “unimportant”.
    Whatever your property rights are, now, you can be sure government will change them to suit whatever it wants to do underneath, on or above your property.

  • Laird

    The extent of legally-recognized private property ownership is a function of the jurisdiction in which the property exists and its current laws. The traditional Anglo-Saxon rule is pretty much as you expressed it in the title. However, that is subject to various limitations.

    Ownership “up to the stars” is no longer the case in most western nations (as I understand it). Overfly rights for aircraft were taken many years ago; you can’t charge aircraft a transit toll or erect a barrier high enough to interfere with their flight paths. And the UN has already asserted the rights to all extraterrestrial bodies; almost every nation on earth is a signatory to the “space” treaties, which means that even if you were able to get to Mars first you couldn’t claim it as your own.

    Beneath the surface, what you’re basically talking about here is mineral rights. Generally those run with the surface rights. However, the two can be, and frequently are, separated; you’d have to check your deed to see whether you acquired the mineral rights in your property. And “fugacious” minerals (those which are transient, basically liquids and gasses) are a special problem. Generally (assuming that you own the mineral rights), if you drill on your own land you can extract whatever fugacious minerals you like, even if they are essentially “sucked” from adjoining properties. However, you can’t engage in horizontal drilling, in which your extraction pipe extends over the property line into your neighbor’s land. I suspect that fracking falls into the general category of fugacious minerals, which by extension should logically apply to liquids (fracking fluids) injected into the earth as well as those extracted from it.

    All that said, however, I suspect that if your government takes an interest in such minerals it would find a way to limit your ownership of them (or at least, your ability to control their extraction, and control is an important element of “ownership”), just as it did with air rights.

  • So far the most logical view to property I have found is the homesteading view from the Austrian school of economics. Giving an example of a farm- well, the surface and perhaps some wells and whatnot are being homesteaded. Then someone else decides they want to fly over or dig under- essentially homesteading parts of nature the farmer hasn’t or can’t homestead himself. The new person has to do this in a manner that is not damaging to the farmer or else he is liable for damages.

    Unfortunately, this isn’t the way it works. Courts have decided planes get to fly overhead at a certain height regardless of damages (I think in the original case, the farmers chickens would freak out and sometimes injure themselves), and landowners who could never homestead resources that are deep underground somehow have rights to them.

    The implications for various fields are interesting. We would likely not have any zoning laws coming from city councils or other such bodies, but the courts would be determining all these little local rules based on what was happening between homesteaders over time. The rather obvious rule is don’t trespass on other’s property, but the details- like at what decibel level does noise stop being part of the environment and start being a trespass- would likely be different everywhere.

  • I believe in the UK the oil and gas rights below the surface belong to the Crown, whereas in the US they belong to the landowner. In terms of sensible extraction, the US model was fraught with problems in the early years of the oil industry, mainly because each landowner would be hell-bent on extracting as much as possible during a boom, only for there to be a glut resulting in a price collapse. The first few decades of the US oil industry was a series of huge booms followed by crippling busts, due to the cycle of discovery then oversupply.

    The other issue is to do with the reservoir management. In order to maximise the recoverable reserves from a reservoir it is necessary to carefully locate your production wells and, if you’re going to need water or gas injection to maintain the wellhead pressure, to locate the injection wells too. The optimum location of these, coupled with the production and injection rates, must be carefully calculated across the whole reservoir to ensure you don’t wreck the reservoir and thus be unable to maximise the recoverable reserves. In a situation like they have in the US, there is no incentive to develop the reservoir in its entirety, and each party has an incentive to maximise production from his own wells. The usual result was that the overall reservoir was damaged and the total production way less than it should have been, which ultimately isn’t very sensible.

    I’m not sure that licensing blocks and compensation for the landowner is the way to go – the landowner should probably get a share of the proceeds too, not just compensation – but allowing individual landowners to develop their own wells simultaneously isn’t very smart either, especially in places like the UK where neighbouring but competing wells will be close by.

  • And on the same subject, one of the things I like to point out to lefties who think governments are a better custodian of oil reserves than rapacious capitalists interested only in short-term profits, one of the huge problems the Russians have with their oilfields is the damage caused by the Soviets ramping up the water injection in order to maximise short-term production at the expense of the reservoir integrity. Generally, private oil companies select the optimum balance between production rate and reservoir life.

  • PersonFromPorlock

    Yup, the Soviets are the go-to ‘orrid example any time someone posits government as the responsible steward of the environment. Not that anyone who lived downwind or downstream of a Maine paper mill back in the day has any great belief in the stewardship of industry, either.

    Many problems would benefit from society’s adopting a more relaxed view of justifiable homicide.

  • Friday Night Smoke

    Here in the English midlands very occasionally an old coal mine will swallow up a house on the surface. The last deep mine to operate around here until a fire forced its closure quite recently is Daw Mill Colliery. I understand that it has shafts running for miles in various directions, underneath various towns and villages who are usually not even aware of the mine (currently burning) beneath their feet, much less compensated for it.

  • Robbo

    UK oil and gas rights were nationalised in 1934

  • Mr Ed

    As regards aviation and trespass, there is in the UK a specific statutory provision denying a landowner or occupier any claim in respect of trespass or nuisance arising from the appropriate use of an aircraft: The Civil Aviation Act 1982, section 76.

    Therefore, one may presume that the Common Law position of a right to bring a claim, had this section not been in force, has been specifically contemplated in the passage of the Act (and presumably previous enactments making similar provisions).

    So, yes, in English law certainly, you had a claim, but Parliament took it away (unless a nutter buzzes your land etc.).

    As for the Soviets and pollution/the environment, Chernobyl, and the Aral Sea.

  • Mr Ed

    How far should property rights extend above your land?

    Since the Earth is moving round the Sun, (this seems not to be in dispute) and the Sun is moving round the Galaxy, etc. if you claim the sky above your head, you have (outside geostationary orbit) a moving claim on a fleeting segment of the Universe, and a chance to peer into the Total Perspective Vortex.

    I believe the Latin legal maxim for a landowner’s right was ‘ad caelum et al inferno’ ‘to the sky and down to Hell’.

    To mollify those who object to civilisation, er, fracking, let them opt in to a scheme whereby they can pay higher gas and electricity bills and ensure that enough LPG is imported or extracted from the North Sea to ensure that ensure that the gas that they use is offset against the gains of fracking. Any takers?

  • Midwesterner

    This is not a complicated problem once you recognize that the only right that is a (truly) natural right is might. Rights derive from alliances that organize might to serve a common purpose.

    In the case of individualists who associate to protect the rights of individual life, liberty and property, the boundaries between individually owned properties are wherever we cooperatively decide to survey them in time, place and substance (ie geographic, geologic, acoustic, liquid, gaseous, luminant etc).

    Whatever the property rights delineated by the defining and protecting body you adhere to, that is the rights you have. They may not be any one individual’s ideal, but the mutual benefit of shared recognition and protection make some concessions worthwhile.

  • Looking at it philosophically rather than legally, the point of property rights is to ensure that your use of your property is not stopped, disrupted, or interfered with by other people’s use of their property, or by their actions more generally. So how far up can something happen and still have a disruptive effect? I can see an argument for blocking your access to sunlight, or for making rain, or for flying low enough so that the sonic boom breaks your window. I don’t see one for floating overhead in a balloon, or orbiting a satellite at geosynchronous altitude. On the other hand, building a Dyson sphere at 100,000,000 km orbital radius—and leaving the Earth to freeze in the dark—would raise issues.

  • Mary Contrary

    No. One should actually have to go to an uninhabited place to claim it – not just point up at the sky and say “that is mine”.

    Paul, I do agree, as a practical matter. But just for the sake of being disputatious, if this is such a good rule for “up”, why not also for “down”?

  • Nick (Blame FrenchMEN) Gray

    Earth is not likely to be the most technologically advanced planet, so i wonder which aliens think they own us, and when they will come to colonise their planet or star?

  • Expanding on the comment above by Robbo, on July 28, 2014 at 3:15 pm, I have found the following on UK mineral rights.

    Best regards

  • Mr Ed

    Thanks Nigel, that’s one long story of theft.

  • Tedd

    In the U.S., the airspace issue was settled by a landmark property rights case (back some time before WWII, I think). The fact that airplanes can legally fly over your property (thus putting it, and you, at some risk) is, in fact, one of the justifications for airspace and air safety regulations, from back in the day when people worried about justifying such things. Sorry, I don’t have a reference.

  • Nick (Blame FrenchMEN) Gray

    Julie, you might have been thinking of the imaginary town of Roysten Vasey, with its’ Local Shop, only for Local people to use. This was a TV series, called ‘The League of Gentlemen’.

  • Julie near Chicago

    Nick,

    Huh??

  • Nick (Blame FrenchMEN) Gray

    Sorry, wrong comment column, Julie! This is in reference to selling the pretty things of the shop, that quote you wanted.

  • Nick (Blame FrenchMEN) Gray

    It should have been attached to the ‘Anti-semitism’ article, where you are talking about humans being contrary creatures- though I disagree and think we’re humble and pleasant people all the time!

  • Julie near Chicago

    Nick — Heh…that happens from time to time. :>)!

    Thanks very much for the reference; I’ll have to investigate it. But I had it in my head that it was a true story. It seemed to me that I’d run across it in various places, including on Samizdata, and lo! the lost is found, or at least one instance of it is. It’s in a comment David Davis left clear back in 2007, at

    http://www.samizdata.net/2007/09/cheap-fizz/.

    The discussion was basically about the availability of decent champagne to the Lower Classes, and David told the story in the middle of his comment.
    . . .

    David Davis
    September 8, 2007 at 7:09 pm

    ‘Whether or not you believe in the Afterlife, or instead if THIS is All There Is, nice things should be for all people, not just nazis, and Capitalism delivers them, more and more, silently, all the time.

    [...]

    ‘I was at a PR party about 23 or 24 years ago (may have been ’83 or ’84, I can’t exactly recall) when a journalist-lady threw red wine over Sir Terrence Conran, while screaming at him the following:

    ‘“YOU (her emphasis) have taken ALL OUR precious things, and YOU have given them to EVERYONE….”

    ‘Then she stomped out. He will, I am sure, corroborate it. It was even in the Evening Standard the next day.’

    [SNIP]

  • LOL Julie, that is…precious :-D

  • Julie near Chicago

    Alisa, isn’t it just! LOL ;)

  • I remember reading that story, and no, it wasn’t The Man Who Sold the Moon.

    I also remember thing about it when the Soviet Union fell apart, because it specifically mentioned American section and the Soviet section.

  • Dale Amon

    A couple of points.

    In the US it really depends on your Deed. In many cases large parcels were subdivided but the Mineral Rights were held by the original owner.

    As to the universe, that issue was the one settled in the 1950’s and was the reason that Eisenhower insisted the first american satellites not be military one, and why some historians believe Sputnik I was considered a trap that the Russians fell into. By accepting the free overflight of the US by objects in orbit, the ability to operate in orbit became undisputed (by major powers).

    The only exception to this is the Geosynchronous orbital slots which are points which always stay directly over the same spot on the ground, and were disputed at as property in some equatorial nations. Sort of. The slots are now assigned.

    As to extraterrestrial property rights, there are serious legal scholars who dispute parts of what some take at face value. Wayne White is one of these, as are others. They note that the treaties that are in effect limit governments claiming objects but do not restrict private ownership. This is a dispute which will eventually be settled de facto, although the recent ASTEROID mining bill introduced in the US congress may do so de jure.

  • Nick (Natural Genius) Gray

    So, de jure is out on that one, Dale.
    Just had another thought the other day about Lightsails. We usually think they will go from one planet to another. I still think that any craft driven by a lightsail will be very cumbersome to use, BUT I have realised that they can perform something like tacking by using groundlight! This would only work if only one side reflects the light, because you could use the light coming from a planet (The light reflected from the Sun) to push away from a planet, and head inward towards the Sun, for when you want to go home from Mars, to Earth, as an example.
    I still think that converting plasma into hydrogen gas is a better longterm system, but there’s room for both types in space!