Minerals Reservations and Development: Where Does Trespass Begin?

Published byYasmin Myles

9th February 2026

Minerals reservations are a familiar feature of Scottish titles and, for most developers, an issue identified early on in the due diligence process. The risks are well understood in principle; a minerals owner may seek to interdict works or pursue damages for trespass, and the mere existence of that risk can be enough to unsettle funders and undermine marketability. Yet while the theory is clear, the practical application is anything but.

Modern development almost inevitably involves intrusive works below the surface. Foundations, services, boreholes, access routes and temporary infrastructure are just a few examples. Where minerals are reserved as a separate tenement, often without any defined physical boundary, it becomes far from obvious where legitimate use of the subsoil ends and actionable interference with minerals begins. Developers, funders and advisers are therefore left grappling with a deceptively simple question: at what point does ordinary development cross the line into minerals trespass?

This article considers that question, exploring the legal uncertainty surrounding minerals reservations, the limitations of “cure or insure” strategies, the commercial realities of engaging with minerals owners and the absence of modern authority to provide clear guidance. In doing so, it asks whether minerals reservations truly sterilise surface development, or whether the law leaves more room beneath our feet than is often assumed.

The Minerals Reservation

Most developers are well aware of the issues posed by minerals reservations and will have encountered the usual warnings at the outset of a project. Solicitors are routinely instructed to examine title at an early stage to identify any reservation of minerals, and the risks of ignoring such a reservation are well understood. A minerals owner may seek interdict to halt the development or pursue damages for minerals trespass, and even where a developer is prepared to take a commercial view on that risk, their funder may not be. An unresolved minerals issue leaves an unquantified exposure at the heart of a project, potentially affecting funding, marketability and exit.

What is far less clear, however, is how minerals reservations operate in practice when applied to modern development. Most renewable energy developments require some degree of sub-surface intrusion, for example the excavation and pouring of foundations, the trenching and laying of cables, the drilling of boreholes and the construction of access routes, whether permanent or temporary. Ancillary access areas may require trenching, signage or temporary roadways to be constructed. The obvious question is whether these activities amount to trespass on the minerals and, if so, at what point that trespass actually occurs.

Minerals as a Separate Tenement

In Scotland, minerals reserved to a third party are treated as a separate tenement. In theory, this creates a clear division of ownership. However, in practice, minerals are rarely, if ever, defined by reference to a specific depth or physical boundary. They are not carved out from, say, three feet beneath the surface. Instead, they exist as an indivisible layer beneath land that remains otherwise owned by the surface proprietor. This creates a fundamental difficulty. How is a developer, leasing land from the surface owner, to determine what falls within the scope of their rights and what belongs to the minerals owner? A minerals reservation cannot wholly sterilise the surface ownership. If it did, the minerals owner would, in effect, enjoy greater rights and control than the owner of the land upon which the development is situated (and which the developer has likely paid a pretty penny to let).

The surface owner continues to own the land, the soil, the solum and the subsoil from the centre of the earth skywards, subject only to the exception of the minerals themselves. The reservation is of substances of commercial value as understood at the time the reservation was made (often specifically listed). Those substances are often commingled with ordinary subsoil, making it difficult, if not impossible, to identify where minerals end and subsoil begins, or how development can avoid interference altogether. To put it another way: how does one separate the eggs from the rest of the cake?

When Does Trespass Occur?

Assuming the developer holds a lease on commercially acceptable terms from the surface owner, what rights have they actually acquired? At what point does legitimate use of the subsoil become trespass upon the minerals? The law offers little clarity. There is very limited case law on this issue, and what authority does exist tends to date from the nineteenth century, addressing broad principles rather than the realities of modern development. Until a contemporary dispute is litigated, uncertainty is likely to persist, and few developers are eager to be the test case!

The issue can be illustrated by extremes. If someone were to walk across the site in high heels, momentarily penetrating the surface, would that amount to trespass on the minerals? Almost certainly not. Scots law offers no remedy for trivial or inconsequential encroachment, and such an act would be regarded as de minimis. But where does that leave foundations, service trenches or boreholes? These are not trivial incursions. Yet they may not meaningfully interfere with the minerals, particularly where the minerals lie at a significant depth or are not being worked.

Is the alleged trespass one against the minerals themselves, or merely against the subsoil? Or is the complaint instead that the development impedes the minerals owner’s ancillary rights to extract? If so, further questions arise. Is there alternative access elsewhere within the minerals holding? Has the development genuinely sterilised the exercise of those rights, or merely limited them in a specific location? The answers will depend on the size of the minerals area, the depth and location of the deposits, and the extent to which the development prevents extraction in practical terms.

If any surface development were sufficient to sterilise minerals, then it would follow that the mere existence of a minerals reservation sterilises the surface, a conclusion that cannot be correct.

Cure, Insure, or Engage?

Faced with this uncertainty, developers often consider title indemnity insurance. While such policies may offer comfort, they do not resolve the underlying issue, they merely fund the consequences if a claim arises. There are also significant limitations. First, a developer must choose between curing the defect and insuring against it (cure or insure). If the minerals owner has been approached, insurance will not be available. Conversely, if a policy is in place, any contact with the minerals owner is likely to invalidate it. It is one route or the other.

Second, insurance may be difficult or prohibitively expensive where the minerals are owned by a known operator. Insurers price risk by reference to the likelihood of a claim, and a prominent or active minerals owner increases that likelihood considerably. Engaging directly with the minerals owner is not without risk either. Doing so may invite a ransom-type response, with the minerals owner seeking to capitalise on the developer’s position. Remedies might include a conveyance of the minerals, a consent or waiver, or some form of minerals trespass lease (noting that a conventional minerals lease is unlikely to be appropriate where the developer has no intention of working the minerals).

Establishing the Position on the Ground

Perhaps the most important step, once a minerals reservation has been identified, is to establish the factual position beneath the surface. Surveys should be commissioned to identify whether minerals are present, their location and their depth. It may transpire that any deposits are inconsequential, lie well below the depth of intrusion, or can be avoided altogether through design changes. It is likely that developers will be carrying out various forms of intrusive surveys in any event, but their solicitor should be highlighting the importance of reporting on the presence (or indeed absence) of minerals if they are aware of a reservation to a third party.

The presence of a minerals reservation should not automatically lead to a decision to cure or insure. The legal position cannot be properly assessed without understanding the physical reality. One must establish the position on the ground, or, more accurately, in the ground, before deciding how best to proceed.

Summary and Concluding Remarks

Minerals reservations continue to present a disproportionate challenge for modern development, not because the risks are unfamiliar, but because the boundaries of those risks remain ill-defined. While minerals are treated in Scots law as a separate tenement, the absence of any meaningful physical delineation between minerals and subsoil creates real uncertainty as to where legitimate development ends and actionable trespass begins.

In practice, a minerals reservation cannot be allowed to sterilise surface ownership or prevent ordinary and reasonable use of the land. Equally, developers cannot assume that all sub-surface works fall safely outside the scope of a reservation. The difficulty lies in distinguishing between inconsequential intrusion, interference with subsoil, and conduct that genuinely prejudices the minerals owner’s rights, particularly their ability to extract minerals in a practical and commercially viable manner. In this context, the most valuable step is a factual one. It is important for developers and their legal team to understand early on in the project what minerals exist, where they are located and whether the proposed development meaningfully interferes with them to fully assess the risk profile and agree a way forward.

Ultimately, the presence of a minerals reservation should prompt careful analysis rather than automatic alarm. By grounding legal assessment in physical reality, developers can move away from assumption and towards proportionate, defensible decision-making, until such time as the courts are asked to bring greater clarity to the law beneath our feet.

If you are experiencing any issues related to this article, please do not hesitate to contact Yasmin Myles yvm@wjm.co.uk or Laura Tainsh laura.tainsh@dcslegal.com