Gravitational Property Theory

Authors

Monika U. Ehrman, Southern Methodist University, Dedman School of LawFollow

ORCID (Links to author’s additional scholarship at ORCID.org)

https://orcid.org/0000-0001-6990-0777

Abstract

Isaac Newton and Albert Einstein defined and redefined the field of physics. Their theoretical work on gravity is still considered a monumental discovery of their respective times. Although born centuries apart, the theory of gravity each advanced is still essential. Newton’s theory is applied on Earth and even throughout much of the solar system, while Einstein’s theory is used in special environments, such as near black holes. Neither theory is discarded, but instead used where appropriate. Likewise, gravitational property theory proposes that simple property theory—the ad coelum doctrine—is still appropriate for simple property, like stationary or vertical objects. And complex property theory, like the rule of capture; the extralateral right; or the prior appropriation doctrine, is appropriate for complex property, such as migratory, transboundary, and hidden resources. The characteristics of the property determine the optimal theory of legal ownership just as the curvature of spacetime determines whether Newton’s or Einstein’s framework is suitable.

Gravitational property theory relies on a theoretical physics construct to better understand the legal governance of migratory, transboundary, and hidden resource property—collectively, “complex property.” The entwining of physics and law may appear incongruous; but there is a natural harmony between them. Early astronomers, building upon past developments in math and science, observed the heavens and discovered they were able to look back into our past to better understand our place within a dynamic universe. Likewise, legal scholars developed property theories to ascertain ownership rights and oversee complex property, often building their theories upon the customs of historical resource communities. However, the major problems with current property theory are that (1) antiquated doctrines, which may appropriately govern simple property, continue to be misapplied to emerging forms of complex property, leading to conflict and inefficiencies; and (2) property theorists are reluctant to set aside obsolete property theories, even where scientific knowledge clearly demonstrates that the established legal theory does not suit the nature of the property.

This Article is the first to assert that (i) varying private property theories, simple and complex, may be appropriate and valid for simple and complex property respectively; and (ii) the choice of theory applied should depend on the characteristics of the natural resource underlying the property. Simple natural resource property—like a vertical petroleum well—requires a simple property solution, such as the ad coelum doctrine; whereas, complex property—like wind—requires a complex property solution, such as the rule of capture. Using gravitational physics as an analog, this Article counsels that application of the correct property theory results in efficient and practical governance and that property theorists should challenge existing theories to ensure their evolution as knowledge of the underlying resource develops. Gravitational property theory applies to most natural resources, including critical minerals, asteroid and planetary resources, water and petroleum, atmosphere and clouds, and subsurface resources like porous space.

Publication Title

Georgia Law Review

Document Type

Article

Keywords

property, natural resources, energy, space, mining, environment, environmental, environmental law, petroleum, oil and gas, property, rights, theory

Recommended Citation

Monika U. Ehrman, Gravitational Property Theory, 60 Ga. L. Rev. 135 (2025).