Re: paleonet Newfoundland ... (legal concepts)

[Peter Paul Smolka <smolka@xxxxxxxxxxxxxxx>]

On Thu, 6 Dec 2001 Pristis@aol.com wrote:

> Date: Thu, 6 Dec 2001 17:26:34 EST
> From: Pristis@aol.com
> Reply-To: paleonet@nhm.ac.uk
> To: paleonet@nhm.ac.uk
> Subject: Re: paleonet Newfoundland and Labrador Fossil Protection
>     Legislation
> 
> 
> > 
> > Pristis@aol.com wrote,

> So, you think that it is "unfortunate" that fossils on private land do not 
> belong to the State of Alabama, that Alabama fossils in private hands should 

( ... )

> Fossils are more important than the property rights of individuals.  You 
> really believe that?  
> 
( ... )
> 
> ----Harry Pristis

Dear Harry,

first of all I must say I am not a lawyer. This means: The following
sentences have, as far as legal aspects are involved, a reduced
data quality.

In principle yours and other postings reflect different legal philosphies
which may exist, each with a value of its own, in any country/state/region.

Philosophy one:

Private property rights end at the surface (such as the right to own
ground and/or (for xample in case of buildings) at the basement
of such buildings. The "property right" focusing on ground
is a legal title to use the square meters of a surface in a certain
manner.

Everythin between the surface and the earth s core is the subject
of different laws, mainly thosefocusing on ressources and minerals.

To formulate compact: In THIS philosphy oil and coal deposits
below the surface, groundwater etc. is NOT property of the respective
land owners above. This makesalso sense because oil deposits
can be accessed independently of the landwner (by horizontal drilling),
the drawdown of water-wells can span considerable distances and so forth.

In THIS context (derived logic) fossils are similar to deposits
(oil, coal, plant fossils and the like) and thus the law
governing fossils is independently of the laws governing the surface.

Philosphy two:

All items between surface and earth core are property of the landowner.

Thus a single individual can block the water supply of a whole city
if no compensations etc. are paid (usage of the water below).

This individual might claim "considerable concern" as the pumped water
might negatively impact him/her in case of climate change...

If the stateswhich you discuss HAVE such laws (which I simply
do not know) THEN, in principle, you might be correct with the
objections"pro or against"certain laws on fossils.

To my knowledge however the right for private property reaches
in all countries certain limits.

Example: If you would BUY one floor in a tall office building
(for example the 2nd) you are in general NOT entitled to do with
your property what you want (for example blasting the 2nd floor
in a 50 story building) simply referring to your "property rights".

This ban on blasting applies to my knowledge also if you
pay the cleaning of the streets...

Just compare the "International Sea Law" (directly translated,
I mean the law which referres to commercial ships):

Here the CHARTERER of the ship (including, such things happend,
the passengers) is liable for anything (for example tug-boat
costs in case of problems, damages to the coast (oil spills and
the like))although the charterer is definitely NOT owner of the
ship. (Therefore scientific institutes should never charter
any research ship (from another instution) but must try anything
to have the status of "invited guests" as no university can
pay respective costs.... )

(this is derived from the fact that the charter acts as quasi
owner, for example telling the captain where to sail and is thus
also responsible for negative consequences; indirectly this
applies also to fractions, such as single persons who send
a container).

If you rent however a van for your removal you are in general
NOT liable for any indirect consequences of the journey (for
example if the driver touches another car).

To conclude: This is a very complex topic and I recommend to
look into the details of legal concepts and legal practises
in the state under consideration.

To my impression the reference to a single principle (right to
own property) might have potential for extension.

Above however is NOT and cannot be any valid direct, indirect
or implied legal advice (for example the "International Sea Law"
might have changed without my knowledge).
For further information, especially in case of application
(optimizing ongoing legislation) I recommend reference to
the respective specialists, such as, but not limited to, the
Institutes of Law at the respective universities.


Best regards, Peter

P.S.: The point
"regarding fossils similar as deposits (oil, coal, groundwater,
minerals)"and thus independantly of the surface (= independant
of "general private property") is however a point to consider
in any legislation as this makes certain things easier/difficult.

And:  Whether for example the owner of the painting "Mona Lisa"
(hanging in the museum "Louvre" in Paris/France) has, extending
above, the right
to burn it (referring to property rights)
is something which I do not know. It might be possible that
also from THIS (singularity of certain items, value to the
public including unknown value to future generations (visitors
of Louvre, future paleontologists or even the public)if in the future
some fossils might be extremely valuable for a certain technology)
some limitations might exists.


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Dr. Peter P. Smolka
University Muenster
Geological Institute
Corrensstr. 24
D-48149 Muenster

Tel.: +49/251/833-3989   +49/2533/4401
Fax:  +49/251/833-3989   +49/2533/4401
E-Mail: smolka@uni-muenster.de
E-Mail: PSmolka@T-Online.de
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