ABSTRACT
This Article uncovers the common law’s process of recognizing new forms of property in natural resources and how that process has evolved. In our own time, emerging technologies are making ordinary elements of the earth into valuable natural resources. Increasingly, landowners want to transfer property interests in these resources to developers, severing their ownership from the land itself. Should the common law recognize a severable estate in resources like wind, sunshine, geothermal heat, or subterranean ‘pore space’, as it does in coal, oil, and natural gas? The handful of courts to have considered these questions have had no starting point, no doctrinal framework to guide their reasoning. Lacking guidance, modern courts tend to reach for analogies to established resources, especially oil and gas. These analogies often present a court with a narrow, all-or-nothing choice between recognizing the transferability of a perpetual estate in the resource or recognizing no transferable property interest at all. If courts were to look further back in the common law tradition, however, they would discover a set of principles that structure this otherwise impenetrable problem. The classical framework orients courts toward custom and usage as the basis for new forms of property, empowering courts to evaluate and shape customary rights in accordance with property law’s principles and policies. Within this framework, courts are given the tools to balance the goals of preserving land’s marketability and usefulness with the flexibility needed in an ever-changing economic and technological landscape.
Schremmer, Joseph, The Severability of Natural Resources from Land (June 1, 2025).
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