Throughout the United States, two legal concepts dominate ownership of subsurface resources. Both of these concepts are flawed and have destructive consequences.
One of these concepts is the rule of capture, which has its roots in English common law. The rule holds that “that the first person to capture a natural resource owns that resource. A rule of capture helps in determining the ownership of natural resources like groundwater, oil and gas that is captured.” Fundamentally, the rule of capture is founded on the premise that use of a resource confers a property right to the user. In other words, the user attains a right to use, keep, trade, and dispose of the resource, as well as exclude others from using or attaining the resource.
The second concept is that of “mineral rights,” which holds that the owner of land is also the owner of everything below his land. All of the rights of ownership—such as use, trade, disposal, and exclusion—are conferred upon the land owner.
To understand why these concepts are flawed, we must first understand the nature and source of property.
Click here to download the entire policy paper for free.