CHAPTER I.

WHO OWNS THE WIND?

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 [1863] 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 Aylesbury:

“. . . . 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 Smith.”

Bucks Herald, 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.