How the current contention over property rights came to be—and where it could go from here

BY ROBERT WILSON

Buy this book

The Land We Share: Private Property and the Common Good
By Eric T. Freyfogle
Island Press, $25

A report on television the other night told about how beaches in southern California are beginning to disappear. Why? Coastline development has become so dense that it blocks the flow of streams that replenish the sand with silt. When the beaches go, the ocean eats away at the cliffs on which the structures that cause the problem sit, and eventually, with a sort of natural poetic justice, these residences, which is what they mostly are, tumble into the sea.

The head of a state environmental agency who was interviewed about the problem explained blandly that governments at all levels tend to side with property owners so as not to seem to be wielding their power heavy-handedly. And so the lemminglike cycle in which houses are built chock-a-block above the Pacific into which they will eventually plunge goes uninterrupted for fear of violating the sacred rights of landowners. Never mind the public, to whom the vanishing beaches would seem to belong. Such is the confused state of property rights in this country today.

To Eric T. Freyfogle, a professor of law and environmental policy at the University of Illinois, the confusion stems in part from a lack of historical perspective. In his comprehensive new book, The Land We Share, Freyfogle traces the long history of private property (meaning land, not personal possessions) and the rights and responsibilities of its owners back to the Middle Ages in Europe. He focuses especially on the concepts that influenced the framers of our Constitution, and on how the rise of the Industrial Age shaped the present arguments that would have the public pay for any diminishment of a landowner's right to do what he wished with his property. Freyfogle then gives the contentious contemporary debate over private property a thorough airing, exploring the legal arguments in exhausting as well as exhaustive detail.

His own views are clearly aligned with environmental responsibility and the rights of the public. As an example of how far he would go in that direction, Freyfogle suggests at one point that "it would be a significant step, but hardly unprecedented, for lawmakers to declare that the public owns all of nature, with private owners holding something akin to use rights, tailored to respect the common good." The public would own the beaches and the cliffs—and the hills overlooking the cliffs and the continent behind the hills—and in its collective wisdom, with lots of input from environmentalists and attorneys, of course, it would decide who could build what where.

As radical as this idea might seem, it is less so in the context of the history of private property. The trail leads back to 1066, and to the centuries immediately thereafter, when French feudalism was established in England. All the land belonged to the Crown, beginning with William the Conqueror, but control of the king's land was divided among his greatest lords and on down the line to the landed gentry and those who worked the land. These tenant farmers did not actually own the land and could not buy or sell it or leave it to their heirs, but they began to acquire rights with regard to it. From this beginning the idea of private ownership of property sprang, and out of it grew an ever-changing bundle of rights to work the land and share its bounty, to enjoy a modicum of privacy, and eventually to buy, sell, and pass it on. But the feudal relationship went both ways, and the landowner owed his lord a willingness to help protect the landholding as a whole and to use the land in accordance with communal customs and desires.

Many of the ideas behind feudalism came down to 18th-century America, although John Locke's assertion that property was a natural right of man and the Founding Fathers' aversion to aristocracy meant the end of feudal arrangements as such. Besides, there was so much land for everyone to have, especially if you could drive away its aboriginal owners. Still, even in the 18th century, that age of individual liberty's birth, private property rights were limited by a general understanding that the rights were both granted by the public and controlled by law. The 18th century was, for Freyfogle, exemplary of how the 21st century should look at private property.

The 19th century, in contrast, took several large steps in the direction of property rights and away from the attendant responsibilities, and these have been the sad models for today. First, the courts ruled that companies had standing as individuals, and then in the spasms of Gilded Age greed, the rights of industries to do what they wished with their property was allowed to supersede the rights of those around them. Industrial good became the common good. After all, as the New York Supreme Court wrote in 1873, "The general rules that I may have the exclusive and undisturbed use of my real estate, and that I must so use my real estate as to not injure my neighbor, are much modified by the exigencies of the social state. We must have factories, machinery, dams, canals, and railroads." The same laws that tipped the balance in the direction of the industrial property owner are now being used by individuals wishing to assert their rights against the efforts of the government to safeguard the rights of the public.

Freyfogle earnestly hopes to move the property rights debate forward, but given the rigidity of opinions on both sides, I don't see that happening. Nevertheless, his book will shore up the arguments of those who wish to remind private property owners that their rights are entwined with their responsibilities. It also shows that both law and practice are dynamic in this area and that as people get a greater sense of the responsibilities of what Freyfogle calls an environmental age, the pendulum can swing back—back to the 18th century.

Robert Wilson is at work on a book about the 19th-century American explorer, scientist, and writer Clarence King.

Read more excerpts from our current issue online, look for the November/December 2003 issue on newsstands, e-mail us to purchase a copy, or subscribe to the magazine.