Boundaries of land, fixtures and ownership of minerals and resources: The search for certainty

Introduction This chapter is concerned with three significant aspects of land under the common law system: the material conceptions of physical land (boundaries of land, including encroachment), the practical significance of the distinction between real and personal property (the doctrine of fixtures), and the concept of land as a set of abstract rights (ownership of minerals and resources). These three aspects of land are, to some extent, related to each other and in most property law texts are covered under concepts of land and boundaries of land. For example, for boundaries of land, beside natural and artificial boundaries, the dimension of land (such as space) is discussed. Boundaries of land are mainly concerned with the limits of land in relation to water and space and as between adjacent private owners. The doctrine of fixtures, based on the distinction between real and personal property, determines whether different objects attached to land are part of the concept of land or not. This has significant practical consequences, particularly in terms of the remedies available. The ownership of underground resources, treasures, trees, fish and waters (surface, underground and rain) as part of the land has also long been a subject of common law rules. However, in recent decades ownership of minerals and water rights have gained significant importance, and been regulated extensively by statutory provisions, usually resulting in their separation from the private owner’s title. Two additional issues in relation to ownership and management of mineral and water resources in Australia are related to federal and state issues, as well as the emergence of native title since the early 1990s. Historically, property law books, in Australia and in other common law jurisdictions, cover boundaries and fixtures but contain little discussion of ownership of mineral and water rights. This is partly due to the fact that traditional case law was mainly concerned with issues such as fencing, limits of land, fixtures, and encroachment whereas minerals and resources are largely subject to statutory provisions. In this regard the common law, unlike other legal systems, provides a specific regime of property rules, thorough case law and statutory provisions. Hence, surface boundaries of land, ownership of resources in land, and entitlement to rights and interests in land are blended, and regulated with public and private ownership as well as recognising divisible rights and interests in land.