Rights associated with land - Essay Example

Rights associated with land Introduction: This essay undertakes an examination into different kinds of rights associated with land, such as mineral rights, water rights, fishing rights and rights of access. The first part deals with these rights as they operate in England and Scotland, while the second part deals with these rights in the United States. As will be noted from the details provided below, rights of access are restricted in the USA as compared to England while Scotland allows the highest levels of access to land to members of the public. Fishing rights in England and Scotland are private as opposed to public rights in USA, while water rights follow a riparian system in the UK and USA, except the western states where an appropriation system is used. Mineral Rights are provided to property owners who may have the right to allocate subsurface rights to other parties, but in England and Scotland the rights to precious and energy minerals rests with the Crown, while rights of ownership to other minerals may also rest with community bodies. Mineral Rights: In Scotland, land ownership is based on a feudal system whereby the owner or feuar was subjected to title conditions with reservations of mineral rights. Under the feudal system, previous owners of property known as feudal superiors, retained rights over the land even after it was sold, together with the right to enforce title conditions. (www.hmitchell.co.uk). This system was recently abolished under the Abolition of Feudal Tenure (Scotland) Act 2000, however despite the abolition of the system, a reservation of mineral rights in the feudal title still remains valid. As a result, it may restrict the mineral rights of owners of property. The Land Reform (Scotland) Act 2003 provides communities and crofts with the pre-emptive rights to acquire mineral rights, with the exception of oil, gas, coal, gold or silver.(www.lindsays.co.uk) The ownership of the rights to precious and energy minerals is vested in the Government. Throughout the U.K, mineral rights to gold and silver are owned by the Crown and the mines of these metals are known as mines royal (www.bgs.ac.uk). Any right to mine these metals can only be exercised after a license is obtained from the Crown. Rights to energy minerals such as oil and gas have also been vested in the Crown through the Petroleum (Production) Act 1934. Where other minerals are concerned, the rights are vested in the private owner of the property, although the ownership of some other minerals may be owned by the Crown or by Government departments and agencies. No license may be required from the Government in order to gain rights to mineral exploration, but in some instances planning permission may be required from a mineral planning authority. Water rights: In both Scotland and the UK, water rights are based upon riparian rights, whereby they are allowed to extract pure water from running water courses lowing through their land. The rights of a riparian owner were laid out by Lord Macnaghten in the case of Young v Bankier Distilery as follows: "Every riparian proprietor is entitled to the water of his stream, in natural flow, without sensible diminution or increase and without any sensible alteration in its character or quality." (at 698). This is a natural right that is provided along with the ownership of the land and is not dependent upon any kind of license or prescription. In the case of Scott-Whitehead v National Coal Board there was a dispute between two riparian owners, one a coal mine owner who has obtained from a water authority to discharge high chloride content into the water, and the other farmers of land who used spray irrigation from the rivers to water their crops. The Court held in this instance that damages could be claimed, since a riparian owner has the right to extract water for his or her use bit not to pollute it. It was also pointed out in this case that a riparian owner’s rights to extract water may also be limited by water authorities, who can require a license for use of large amounts of water. Such measures may be taken in the interest of conservation and protection of water resources. Fishing Rights: In Scotland, fishing rights are private rights, where the right to fish for fresh water fish belongs to the land that adjoins the water (www.scotland.gov.uk). The exception to this rule arises in the case of public waters, where fishing rights do not belong to the owner of the nearby land and members of the public are allowed to fish for trout and other fresh water fish. Salmon fishing rights are distinct and separate from fishing rights to fresh water fish. These rights can be inherited and may be owned as a separate right from the right of the owners of the land and water where salmon fishing takes place. Fishing for salmon without permission from the owner of the rights constitutes a criminal offence, while fishing for fresh water fish without permission would only constitute a civil offence (www.scotland.gov.uk). As per the Salmon and Freshwater Fisheries (Consolidation) (Scotland) Act 2003: “If any person without legal right, or without written permission from a person having such right, fishes for or takes salmon in any inland waters including any part of the sea within one mile of the mean low water springs, he shall be guilty of an offence..." (www.scotland.gov.uk(. The right to fish is available to the owner of the property, and to others only with a license to fish. It is the riparian owners or collective owners of all waterfront properties who own the fishing rights in a particular water body. In some instances in Scotland, fishing rights may also be held by community bodies and crofting counties, since they have pre-emptive rights to acquire salmon fishings and sporting and gaming rights (www.lindsays.co.uk). Sporting rights may however have to be leased back to the owner for a nominal lease amount for 20 years. While salmon fishing rights as well as fresh water fishing rights in Scotland may be owned by private owners of land, this is rarely the case in England. There are only a few properties in England and Wales that may be sold with the fishing rights still intact and passed down to the new owner of the property. Fishing rights, especially the right to fish for salmon, is vested in the Crown. These rights may be leased out to local fishing or angling clubs and associations. Moreover, a national rod license is required before fishing would be allowed in England and Wales. These countries differ from Scotland in that fishing rights are less likely to be available to private property owners, since these rights may have already been auctioned off or passed on to fishing clubs and associations by previous owners, hence those rights pass down separate and distinct from the rights of the private owner of the property. Rights of Access to land: The right to access land is much more far reaching in Scotland as compared to England. The Land Reform (Scotland) Act 2003 establishes the right for members of the public to cross over and remain on land for recreational, educational as well as other purposes which can also be for commercial use. It provides members of the public with the right to roam just about anywhere in Scotland, including into lands and estates that have hitherto been preserved as strictly private (Alvarez, 2003). The rights of landowners to evict or forcibly remove anyone from their property has not been severely restricted by the passage of this Act. In England, areas of land where access to the public is allowed are mostly those that comprise “waste land”. Other kinds of rights of access to land, such as grazing rights on meadow and pasture areas were all carefully regulated, including rights of access to private property which were severely restricted, as a result members of the public can freely roam only in areas that fall under public land or waste land. Till recently, there was no freedom to roam over open countryside and such roaming could render an individual a trespasser if the land is owned by someone else. But this trend is being reversed through the passage of the Countryside and Rights of Way Act (www.btinternet.com), parts of which have become operational in 2007. This Act will redraw the map of England and ales and delineate the areas where members of the public are free to roam because no ownership rights are being claimed by property owners. PART B: Mineral Rights in the United States: In the United States, the owner of the land is also the owner of the right to minerals occurring naturally in a solid state. Ownership of the land does not also indicate ownership of gas, oil and other minerals occurring below the surface of the earth, but it does include the exclusive right to explore and develop the land for production of such minerals. In the State of Louisiana, the Louisiana Mineral Code specifies that although the owner of the land also has the rights to exploration of minerals1, the ownership of the minerals apart from the land will not be possible until those rights have been reduced to possession and this occurs when the land is under the physical control of the owner which allows for making a delivery to another (Gates, 1983). The Louisiana Mineral Code also contains provisions on co-ownership and partnership of mineral rights. An owner can create rights such as mineral royalties and mineral leases, wherein the rights to the use of minerals are transferred to other parties. Traditional common law application would mean that under the common law, “ownership of the land extends to the periphery of the Universe” (at 260-61), hence imbuing an owner with all the rights on a property - including the right to exploitation of mineral wealth. However United States law also allows land to be horizontally split, into surface and sub surface estates, which allows different parties to own the rights to surface land and materials found below the surface. In the case of Del Monte Mining and Milling Co v Last Chance Milling and Mining Co, the Court held that “unquestionably, at common law, the owner of the soil might convey his interest in mineral beneath the surface without relinquishing his title to the surface” (at 60), thereby separating mineral rights and the rights of ownership in the land. The Mining Law of 1872 provides allows mineral rights owners with the option to receive both the surface estate as well as the mineral rights for a nominal fee, with the intention being to deter opportunistic behavior by the mineral rights owner, because destruction to the surface land is more likely to occur if the mineral rights owner is not also the owner of the rights to the surface land.(Moriss et al, 2004). Fishing Rights: In the United States, fishing rights are not private rights, they are public rights. Most water bodies are public bodies and members of the public have the right to fish there, although in some instances, they may be required to secure permission from the owners of adjacent lands. It is only when a water body such as a lake falls entirely within the boundaries of privately owned property that fishing rights in that particular body will belong entirely to the owner of the private land. Public fishing may be regulated by the United States Government however, in the interest of preservation of the ecosystem, the extent and level of fishing may be regulated. For example, in the case of Commonwealth of Massachusetts v Michael J Maxim and Davis S Greene, the defendants, who were Wampanoag Indians, were arrested for violating fishing regulations and catching clams on a non-day, i.e, a reference to the weekly schedule of the regulations that permitted catching of certain kinds of fish on certain days. However, in this instance the Plaintiffs were unable to sustain the suit against the defendants on the grounds of jurisdiction. Since both Maxim and Greene were Wampanoag Indians, they were provided with fishing rights that are specially allocated for descendants of native American tribes. Hence in the United States, while fishing rights may not be private, public rights are also regulated in the interest of preservation of the environment and maintenance of the delicate ecological balances. Water rights in the United States: Water rights in the United States also rest with riparian owners, or a collective group of owners who own properties along the water banks. These owners will be allowed to use running water from these sources and will have equal access to the water from them. The riparian system operates in the eastern states where water rights are collective rights possessed by the owners of all lands adjacent to a water source. In the western states, where there is scarcity of water due to the rocky mountainous terrain, the doctrine of appropriation applies. According to this doctrine, no one really owns the water flowing in the water source, but everyone has the right to use the water, provided such uses are beneficial.(Castle, 1999). Moreover, earlier users of the water will have priority over later users in terms of rights of usage of the water. A property owner is required to make an appropriation in order to secure the right to use the water, by building an easement, such as a ditch in order to transport the water to his/her property for a beneficial use. Where ground water is concerned, two principles operate. One is the principle that is operational is the right of capture, whereby the first person to capture the water resource will be its owner and will enjoy the rights over that water source including use and restricting access to it. The other is the principle of reasonable use, whereby a property owner is allowed to use water freely but only to the extent that it does not interfere with the rights of another person to access to that water source. Thus, while the right of capture would allow an owner of a property to capture a well and draw water from it, the right of reasonable use would mandate that the water be used judiciously. Drawing so much water that it affects the level of ground water in a neighbor’s property would therefore be unacceptable. In the United States, native American Indian tribes have been provided with ownership of water sources and water rights that are independent of the prevailing water systems and regulations existing in a particular locality. The right of access: In the United States, the rights associated with the owner of a property are based upon a bundle of rights theory, according to which ownership of real property has a number of privileges going along with it. These include the rights to occupy and use the property, the right to enjoy and dispose of the property, as well as the two other significant rights: (a) the right of control and (b) the right of exclusion (Kimmons, No date). Under these principles, the property owner will have the right to control exactly how the property is used by himself/herself as well as by others. The right to exclusion indicates that a property owner can take steps to exclude others from his property or restrict access to the property. As a result, contrary to the right to roam in Scotland and England, private property in the United States will remain tightly protected from use by members of the public, who will not have the right to access the property. Bibliography Abolition of Feudal Tenure (Scotland) Act 2000. http://www.hmitchell.co.uk/abolition-of-feudal-tenure.htm, Alvarez, Lizette, 2003. “Land reforms in Scotland give big estates the jitters”, The New York Times, 23 February 2003. http://www.caledonia.org.uk/land/jitters.htm; Castle, Anne J,1999. “Water rights law – prior appropriation”, http://library.findlaw.com/1999/Jan/1/241492.html, Fishing Rights: The Scottish Government. http://www.scotland.gov.uk/Topics/Fisheries/Salmon-Trout-Coarse/17519/8903; Freedom to roam in England and Wales. http://www.btinternet.com/~bta.wga/rochford-ramblers/freedom_to-roam_in_england.html Gates. Andrew L, 1983. “Mineral Law and Energy Policy: Partition of land and mineral rights, 43 Louisiana Law Review 1119. Kimmons, James, No Date. “What is the bindle of legal rights of a real estate owner?” http://realestate.about.com/od/ownershipandrights/f/bundle_of_right.htm; Land Reforms Ownership in Scotland Briefing at Page 7, http://www.lindsays.co.uk/uploads/documents/Land%20Ownership%20Reform%20colour.pdf, ; Legislation and Policy: Mineral Ownership. http://www.bgs.ac.uk/mineralsuk/planning/legislation/uk_minown.html, Moriss, Andrew P, Meiners, Roger E and Dorchak, Andrew, 2004. “Article: Homesteading rock: A defense of free access under the General Mining Law of 1872”, 34 Environmental Law, 745. Cases cited: Commonwealth of Massachusetts v Michael J Maxim and Davis S Greene, 45, Mass. App. Ct 49; 695 N.E. 2d 212 (June 11, 1998) Del Monte Mining and Milling Co v Last Chance Milling and Mining Co, 171 U.S. 55 (1898) Scott-Whitehead v National Coal Board (1987) 53 P& CR 263 United States v Causby, 328 U.S. 256 at 260-61 (1946) Young v Bankier Distilery (1983) AC 691 at 698 Read More