Rätten till mineral : en studie om befogenheter och legala inskränkningar i äganderätten till fastighetens beståndsdelar

Sammanfattning: Since long, Swedish land owners has been forced to accept that their land is claimed for mining activities. The utilization has taken place in accordance with different laws and legal rules. Also the current Minerals Act expresses a right for third parties to assimilate minerals from other people's property. The question of who owns the mineral prior the utilization is however not answered by the Minerals Act or by any other statute. In addition to being principally interesting, the ownership issue is also of practical importance, for instance regarding the right to exploit minerals covered by the Minerals Act for household use, or the right to exploit unregulated mineral as well as in future assessments regarding e.g. mineral compensation. In addition to the principal question of ownership, the Minerals Act also gives rise to a number of other issues that affect the land owner's right in relation to the extraction of minerals on the property. The main purpose of this study has thus been to identify who, if any, can be regarded as the principal owner of the elements of earth that contains minerals under Swedish law. To do this it has been necessary to define the concept of ownership in the property context. Furthermore, the study also contains an investigation regarding whether the minerals in the earth is to be considered a part of the property, and if the property ownership entails a principal right (power) for the owner to utilize minerals that may exist underground. The right with which third parties can reside on private land and there perform the preliminary studies that may be required to obtain exploration permit is also examined, as well as the conditions for – and the powers that comes with – permit and concession in accordance with the Minerals Act. The results of the study confirm that the ownership of property in Sweden is negatively determined and that all powers relating to the property therefore is due to the owner, unless law, custom, tradition or other source of law states otherwise. The results of the study also indicate that the mineral in the ground are to be considered a part of the property; the landowner is therefore in principle its owner and the function of the Minerals Act is that of a legal constraint. It is also concluded that it is possible to perform a large part of the necessary preliminary investigations with support of the Right of Common (Swe: Allemansrätten).