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The Evolution of Resource Property Rights$
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Anthony Scott

Print publication date: 2008

Print ISBN-13: 9780198286035

Published to Oxford Scholarship Online: May 2008

DOI: 10.1093/acprof:oso/9780198286035.001.0001

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Mineral Disposal and Mining Rights on Private Land

Mineral Disposal and Mining Rights on Private Land

(p.289) 8 Mineral Disposal and Mining Rights on Private Land
The Evolution of Resource Property Rights

Anthony Scott

Oxford University Press

Changes in mining rights on private lands came about in leasing contracts, court interpretations, and custom. By the nineteenth century English landowning families could set up mining operation themselves, call on free miners, or lease or sell mining rights to outsiders. Under changing property law, the family head might be impeachable for waste — for his family and his tenants his title might require that the estate's minerals and surface lands remain intact. Changes in tort law lawsuit decisions increased his exclusivity. They prevented him from interfering with his neighbours, his neighbours from harming him, and flooding. The courts in Rylands v Fletcher (1868) produced a spillover doctrine that was soon applied beyond mining. If the holding originating the flooding was doing something that was not ‘natural’ to its operations, it was liable to the victim. In the booming US mining, Rylands v Fletcher was cited frequently. The chapter mentions damage from surface collapse. The English courts were driven to an extreme: any surface landowner was absolutely entitled to support. The parties' contract could not waive this right. Instead of this for some decades some American courts followed a doctrine that when on one piece of land surface and mining interests were in physical conflict the miner's was always the ‘dominant’ estate.

Keywords:   implied contractual rights, customary rights, flooding, exclusivity, tort law, Rylands v Fletcher, mineral demand, reasonable use, waste, property rights

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