The Law of Property

AuthorWinston Anderson
Pages125-143
Page 125
7. The Law of Property
Property law is concerned with the ability
and freedom to control and utilize resourc-
es.1 Accordingly, environmental ideas a re
inevitably closely tied to prevailing legal notions of
property and proprietary rights. Some conceptions
of property rights attempt to delineate the scope of
legitimate legal concern with the use of property
in ways potentially harmful to the environment. At
the same time, the growth of environmental law as
a distinct discipline profoundly inuences attitudes
toward the extent and desirability of legal entitle-
ments to the unrestricted use of property.
e common law of propert y inherited from
the British2 provided the earliest Caribbean regula-
tion of the environment and remains of continuing
relevance. Land is funda mental to the notion of
the environment, and the common law developed
a sophisticated regime of providing not simply
for the ownership of la nd but also for the owner-
ship of a wide variety of interests in la nd.3 Com-
mon law actions provide the mechanism by which
the owner of land rights could prevent or remedy
environmental injuries to his property.4 Public
1. See S C  K M, T P
F  E L: P R 
N 5 (2004).
2. See Campbell v. Hall (1774) 20 St. Tr. 239 (Eng.); Blankard v.
Galdy (1694-1893) 1 Barb. L. R. 1 (Barbados); see also Keith
Patchett, Reception of Law in the West Indies, J.L.J. 17 (1972).
Guyana may be the exceptional case.
3. R M H. W. R. W, T L R P
7 (1984); see Cobham v. Frett (2000) 59 W.I.R. 161 (British
Virgin Islands), emphasizing the importance to prescriptive title
of the claimant being in peaceable, open, and uninterrupted
possession without permission for a continuous period required
by statute or common law.
4. In this way remediation of the environment need not await ac-
tion by government. Consider, for example, Alcoa Minerals of
Jamaica Inc. v. Broderick (J.M. (1996) C.A. 56), where the writ
and statement of claim in nuisance were dated April 9, 1990,
but where nal disposition of the case by the Privy Council oc-
curred on March 20, 2000 (see Alcoa Minerals of Jamaica Inc.
v. Herbert Broderick [2000] UKPC 11(Jam.)). Admittedly,
law legislation aect ing the environment must be
interpreted against the background of the values
and assumptions of the common law regarding
property rights.5 Legislation sometimes expressly
incorporates common law concepts,6 a nd basic
property rights provide the foundation for permit-
ting individuals to enforce environmental law as
a safeguard against institutional inertia7 and as a
means of challenging government management of
the environment.8
e actual contribution of the common law of
property to environmental protection is yet to be
quantied. On one hand, propert y law has been
said to lie at the philosophical foundations of envi-
ronmental law.9 e seventeenth-century L ockean
theory of labor supplied the bridge between the
original God-given grant of the world in com-
mon and the particular rights of individuals in
the state of nature to acquire natural resources to
sustain their lives.10 Property ownership helped to
reduce the “tragedy of the commons”11 by ration-
ing scarce resources a nd thus excluding them from
the domain of common ownership that frequently
leads to overexploitation. Equitable concepts in the
law of restrict ive covenants, easements, waste, and
this was one year before the Natural Resources Conservation
Authority (NRCA) was established, but the Ministry of Health
through the Health Board had jurisdiction under the Clean
Air Act (Law 32 (1961) (Jam.)), precisely and specically over
industrial emissions of the sort in question; yet the ministry did
nothing to alleviate the polluting conditions. Whether in these
circumstances the plainti could have also brought an action
against the Ministry of Health is yet to be addressed.
5. See Hall v. Shoreham-by-Sea U.D.C. [1964] 1 All Eng. Rep. 1.
6. Legislation on the notion of “statutory nuisances” is discussed
in chapter 9, infra.
7. Consider, for example, the common law right to prosecute of-
fenses against the criminal law: see generally ch. 5, supra.
8. Consider, for example, the regime of judicial review of govern-
mental regulation: see chapter 6, supra.
9. See supra note 1.
10. Id. at 50.
11. See ch. 1.
Page 126 Principles of Caribbean Environmental Law
trusts may also provide the basis for environmen-
tal intervention. ere is also an increa sing accep-
tance in the context of planning decisions that in
return for the right to exploit land the property
owner might be required to provide some form of
environmental compensation.12 Propert y owners
favoring conservation may act to prevent environ-
mental harm caused by others. e law of torts
provides a means to th is end and may allow even
rights of exploitation to be used for environmental
protection.13
On the other hand, a predominant characteris-
tic of the common law of property is a pronounced
reluctance to adopt environmental principles.
Albeit this tendency is more often expressed in the
common law of torts and is better examined in
that context,14 it seems fair to say that the narrow
anthropocentric assumption of the common law of
property stresses resource ownership and wealth
maximiz ation, seemingly preferring economic
development to environmental aesthetics.
Property Law and Ownership of the
Environment
Ownership and Dominion
Protection of the right to own and use property lies
at the core of the jurisprudence of the common law,
which was later to become codied in constitutional
provisions. John Locke (1632–1704) thought t hat
by combining labor w ith a natura l object a person
extended the ownership of self to the natural object
in quest ion. e function of the government and
civil society was to provide more eective means
of protecting rights to selfhood than the unsatis-
factory means available in the hypothetical state of
nature. is led one eighteenth-century chief jus-
tice to remark that “[t]he great end for which men
entered into society was to secure their property.”15
One diculty w ith the Lockean concept of
property is t hat it presumes the absence of scar-
city and an availability of natural objects toward
which everyone could invest skill and work. G.W.F.
Hegel (1770–1831) accepted the need for legal pro-
12. R v. Plymouth City Council, ex parte Co-operative Wholesale
Society (1993) 67 P. and C.R. 78; and Tesco Stores Ltd. v. Sec’y
of State for the Environment and Others [1995] 2 All Eng. Rep.
636. See further, ch. 8, infra.
13. Pride of Derby and Derbyshire Angling Ass’n Ltd. v. British
Celanese Ltd. and Others [1953] Ch. 149 (Eng.).
14. Ch. 8, infra.
15. Entick v. Carrington (1765) 19 St. Tr. 1029, 1060 (Eng.).
tection but ba sed ownership rights in property on
the expression of the human will to control and
the need for self-expression. Property was based on
domination, and the bringing of the object under
the subjugation of the will was para mount.
e common law acceptance of the Hegelian
concept of property is evident in the ownership of
environmental components. For example, in the
case of land the mere investment of labor or money
is not sucient to acquire title.16 e core to title
is the notion of an intention to control the land
and exclude all others. According ly, there need not
be any intent to put the la nd to any productive or
sustainable use. us, title gained by adverse pos-
session is based on open c ontrol rather than good
husbandry.17 Cobham v. Frett18 emphasizes t he
primacy of being in peaceable, open, and unin-
terrupted possession without permission for the
required common law or statutory period. Inter-
mittent activities such as cutting down trees, the
manufacture of charcoal, occasional grazing of
cows, picking wild sea grapes for sale, shing in a
pond, and removing sand for building purposes are
not sucient to constitute clear and u nequivocal
acts of adverse possession. ere must be continu-
ous and authoritative subjugation of the land.
Ownership Entitlements
e landowner, subject to theoretical residual rights
in the Crown or state, owns and is entitled to use
the soil and is presumed to own everything “up to
the sky and down to the center of the earth.”19 is
ownership includes the airspace up to the normal
limits of ordinary usage2 0 and all trees, shrubs, and
vegetation growing on the land and minerals in the
soil. All a spects of biodiversity may be used in any
16. Jabar v. Dr. Keith Rowley, e Minister of Agriculture, Lands
and Marine Resources, No. 630 of 1993 (judgment July 28,
1993) (High Ct) (Trin. & Tobago) (unreported).
17. Powell v. McFarlane (1977) 38 P.C.R. 452, 476 (Eng.). In the
Caribbean the period required for acquisition of private land by
adverse possession is generally 12 years, 30 years for Crown lands
or state lands, and 60 years in respect of foreshore owned by the
Crown; see Jabar v. Dr. Keith Rowley, e Minister of Agriculture,
Lands and Marine Resources, No. 630 of 1993 (judgment July
28, 1993) (High Ct.) (Trin. & Tobago) (unreported).
18. (2000) 59 W.I.R. 161 (British Virgin Islands).
19. Giles v. Walker (1890) 24 Q.B.D. 656 (Eng.).
20. Bernstein v. Skyviews [1977] 2 All Eng. Rep. 902. (e right
extended only to such height as was necessary for the ordinary
use and enjoyment of land. Furthermore, an action in trespass
was precluded by statutory provisions that were not limited to
a bare “right” of passage by aircraft over land, but extended to
all ights, even if the ight involved the use of airspace for aerial
photography, provided the ight was at a reasonable height above
the ground and complied with the other statutory requirements.)

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