WHO OWNS THE
Much surrounding the answer to this interesting question stems from
the meaning of the archaic word ‘soke’.
At the time of the Norman Conquest, soke generally meant
‘jurisdiction’. Thus, during the medieval period, mills of all types
were governed by ‘milling soke’. In other words a mill was the
property of the feudal lord of the manor, who gained a monopoly over
milling and his tenants were bound to grind their corn at the mill
at a fixed rate of toll. The rate varied, but it was usually
one sixteenth of the corn ground.
Moving on to this apparently absurd question of ‘who owns the wind?’
we find that the question has a long legal pedigree. Under feudal law anyone could
construct or erect a windmill on his heritage, provided that it was
not within the jurisdiction of a lord possessing manorial milling soke rights; within the manor, a windmill’s owner (the lord of the
manor) possessed the right to use all wind necessary to drive his
mill and thus became, de facto, owner of the wind.
At the extinction of milling soke, the monopoly of corn-grinding — and
thus ownership of the wind — disappeared, but not quite. If an ancient
prescriptive right already existed, the monopoly protecting the mill
from any interference with its aerial motive-power — for example by
erecting buildings or planting trees in the close vicinity — might continue by Act of Parliament. Thus, a clause from the Act for the
enclosure of the Wavertree Common Lands near Liverpool, whereon
stood an ancient soke mill, reads:
“If any person or persons shall erect or
build any house or building, or shall plant any tree or trees within
the distance of two hundred yards from a certain windmill situate on
the common, or shall suffer any tree or trees planted without the
distance aforesaid to grow to such a height as to prevent the going
of the said windmill, the same shall be and is hereby declared a
nuisance, and shall and may be removed or prevented by the said lord
of the manor or the owner or occupier of the said windmill.”
However, in contrast to the above, in 1861 a plaintiff — who since 1856 had owned a
windmill built in 1829 — claimed a right to enjoy the benefit of the
currents of air from the west. The defendant had interfered with
this right by building a school-house only 25 yards from the mill,
which impeded all westerly air currents from reaching the mill, thus
causing a loss of £300. An injunction was sought restraining the
defendants from continuing the injury, but the claim failed.
Given the changing wind directions, it was held that the defendant
could only have interfered with the flow of wind to the mill if he
had built a wall all the way around it, which he had not. (Webb v.
Bird  13 CB 841).
Another case involving the flow of wind to a windmill to come before
the courts involved vote rigging — bribing a constituent to vote for
a particular candidate. The following evidence was presented
at a hearing held into corrupt practices during an election at
“. . . . The next case of bribery is that
of a person named Cheshire. He had a small piece of land on
which there is a windmill, and the best part of its value arose from
the mill upon it; but a windmill is not much use unless there is
plenty of wind. It happened there was a large clump of trees
on one side of the mill which stopped the wind, and Cheshire was
exceedingly anxious to get rid of that clump of trees. He,
indeed, said if he could get rid of the trees it would improve the
value of the mill £30 a-year, and he let it be known that his vote
would depend on getting rid of this clump of trees, and that he was
perfectly ready to vote for Bernard and Smith on these terms.
This came to Mr. H. Bull’s ears, and he promised if Cheshire would
vote for Bernard and Smith that he would remove the trees within one
week. He accordingly on that promise voted for Bernard and
30th July, 1859.
With the proliferation of wind turbines, similar cases involving
ownership of the wind might well re-emerge. Research in the
USA has shown that a wind turbine creates a “wake” of turbulent air
that can reduce the energy produced by other wind turbines sited up
to half a mile behind it. If a downwind turbine is being run
for commercial purposes, this might effect its profitability, and
there are now regulations in some states that require a buffer zone
to be created between wind turbines to prevent wake problems.