Tuesday, 3 September 2013

From Heaven to Hell.

Notwithstanding all land in England ultimately belongs to the Crown, in English Common Law, freeholders property rights didn't just include their patch of earth. It included everything above and everything below. Gold and silver excepted.  Of course.

With the advent of air travel, the practicalities of this position became absurd.  The common interest was prime so the definition was changed so only to include the space immediately above a property.

When the economic importance of oil and gas became apparent, the rights to those were severed by the 1934  Petroleum Act. Uranium, for obvious reasons, was also severed. And again, perhaps as late as 1994, coal was also severed.

Which all goes to illustrate the arbitrary nature of how we've come to define land rights by excluding natural resources. Not so much the rights to exploit them, but the rights to their unexploited value.



Kj said...

Fair point. But I don´t think it´s entirely arbitrary. In all the examples you listed, changes occured when resources were discovered that wasn´t important before / uses of property that exceeded the use known before. So the law was updated to take into account the new paradigm. What´s important is how it collides with existing uses.

Ben Jamin' said...

@KJ, I mean arbitrary in a moral sense, which should be the only basis for ascertaining property rights.

At the moment it's a bit like saying, if you find a wallet in the street and there's £50 or less in it, it's yours by right. If there's one penny over £50 you have to return it back to the person who lost it.

Yes that sum of £50 might go up over time, but where's the principle?

It's either finders keepers or not.

IMO property rights should be one of the few black and white areas in the law.

Murder is distinctly grey area in comparison.

Kj said...

I don´t really see that. With minerals, yes, there is some (rightful IMO) appropriation of rights to the value. Like that of gold and silver before.
As you say, the value to. It´s a recognition of the unearned value of natural resources, probably for all the wrong reasons, but still.
In the example of airspace, the peasant couldn´t stop anything flying several km over him in the middle-ages, and had no reason to. Same as today.

If you want to look at rights that is subject to change, look at a person´s right to his own labour, from the relatively recent abolition of peonage and indentured servitude, up to today´s regulation of it and taxation of it´s value. Land property rights are remarkably stable in comparison.

Ben Jamin' said...

@ I'm not really with you on this. Can you clarify what you mean?

In you opinion, what property rights should a freeholder enjoy?

Ben Jamin' said...
This comment has been removed by the author.
Lola said...

It's also an object lesson as to how resources are created, not consumed.

Graeme said...

didn't we also own half of the road in front of our dwellings as well? or did we sell them to local authorities in exchange for maintenance and repairs?

Kj said...

BJ: I think the freeholder should enjoy whatever property rights that is applicable in the legal regime in question, whether that includes mineral rights etc. Ofcourse our lot wants the value of those rights to be something you have to pay for, but the rights to use property, whatever it is, doesn´t change.* If anything, I would want to liberalise the rights to use property as you want.
I was responding to what I understood was you saying that property rights have changed so much as to make the traditional meaning of freeholdership void. I don´t see that from your examples.

*AFAIU, freeholdership has traditionally implied obligations upon the community relative to the size/value of the freehold, and have at different been subject to land taxes, so this is nothing new either.

Mark Wadsworth said...

Good post. I had to think about it a bit first.

G, the legal "ownership" of roads is one of those mysteries. What usually happens is that the builder who builds the houses does the road as well, and then the local council "adopts" it.

Bayard said...

G, when I bought my house in London, I discovered from the deeds that I did own the bit of road in front of it. However, I don't think I had any rights to the surface of it, it having been adopted by the council. It is apparently quite common for landowners to own roads, if they own the land either side of them, but all the rights of way, duty of maintenance etc. has been adopted by the local authority. If, however, the road became disused and the rights of way cancelled, e.g because of a new road being built, I suppose the landowner can then take the land back.