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24 ELR 10231 | Environmental Law Reporter | copyright © 1994 | All rights reserved Property Rights, Property Roots: Rediscovering the Basis for Legal Protection of the EnvironmentJames M. McElfish Jr. Editors' Summary: Environmental regulation has come under increasing attack from those who argue that governmental limitations on property use violate constitutional restrictions on regulatory takings of property. The author addresses this controversy by focusing on the background limitations on owners' rights that are inherent in property law itself, as opposed to the external controls that government may impose under the doctrines of police power and nuisance. He argues that regulation in support of evolving expectations developed along with--and was upheld to balance--courts' deviation from historically more rigid limits on property use. The author begins by tracing the legal philosophy of property from John Locke, through, among others, Thomas Jefferson, Benjamin Franklin, and Justice Holmes. He concludes that under the modern conception of property, owners' rights are not absolute but are limited by the rights of others. The author next turns to the historical development of property law, beginning with its 12th-century, feudal origins. He reviews property's evolution and modification by statutes and common-law decisions. In the 18th century, the law recognized a form of "absolute" dominion over property whereby each owner had a right to prevent neighbors from using land in a manner that would interfere with that owner's quiet enjoyment. This inherently conservative view of property greatly limited intensive and innovative uses of land and, by the early 19th century, conflicted with the needs of a developing U.S. economy. Courts overturned and modified common-law doctrines to keep pace with evolving expectations about reasonable property use. As they stripped from property law many of the restrictive protections afforded by traditional quiet enjoyment doctrine, courts recognized other, more flexible means for protecting quiet enjoyment and other rights of property owners and the public. These regulatory protections are thus rooted in the inherent limitations on owners' dominion over land. The author next reviews the elements of the property right. He examines the various attributes in the "bundle of sticks" that constitutes property to show that the law's protection of each property interest is tempered by the nature and historical treatment of that interest. Illustrating limitations inherent in the nature of property itself, the author provides examples of exceptions to owners' rights to exclude others, occupy and use property for enterprise, and convey and devise property. In this Article's final section, the author explores two critical points to demonstrate that environmental regulation in support of evolving expectations is based on--rather than inconsistent with--the essential character of property law. The first is that such regulation often serves to promote fair allocation of the burdens and benefits associated with property ownership. Environmental laws limit property owners' ability to impose--in the form of pollution, impairment, or destruction of shared resources--the costs of their activities on others. Such laws also force property owners to share some of the costs incurred by society to preserve and enhance property's overall usefulness. The second of the author's critical points is that just compensation doctrine does not protect every existing, potential, or speculative use to which property might be put. The author argues that takings controversies are most likely to arise when proposals for more intensive land uses occur in rural and less developed areas. Although governmental regulation in response to these conflicts may interfere with owners' investment-backed expectations, the regulations generally represent society's exercise of a preexisting right, rather than the destruction of property. The author briefly discusses Lucas v. South Carolina Coastal Council in this context as the exception that proves the rule. Environmental regulation in support of evolving expectations, the author argues, has been essential to the development of property law and is now a critical part of the relationship between society and the individual that gives property its meaning. The author concludes that an understanding of the limitations inherent in property itself reveals that most regulatory takings claims are attempts to redefine, not preserve, the rights associated with private property. Mr. McElfish is a Senior Attorney at the Environmental Law Institute. He is a graduate of Dickinson College (B.A. 1976), and received his J.D. in 1979 from Yale Law School. This work was supported, in part, by a generous grant from the W. Alton Jones Foundation. The rational study of law is still to a large extent the study of history. History must be a part of the study, because without it we cannot know the precise scope of rules which it is our business to know. --Oliver Wendell Holmes Jr.1 Recently, a great deal has been made of a supposed collision between property rights and environmental protection. This issue has been fostered primarily by property development interests, with important assists from legal scholars and government officials.2 It has attracted the notice and support of numerous grass-roots organizations composed of property owners. The legal formulation cited as the doctrinal basis for this collision is Justice Holmes' justly famous observation that "while property may be regulated to a certain extent, if a regulation goes too far it will be recognized as a taking."3 At least two grounds have been advanced to support the constitutional limits that restrict regulatory takings.4 The first is the argument for governmental regularity--that the federal and state governments must act only in accordance with the powers given or denied them under the U.S. Constitution.5 The second is the argument that protection of property is a preconstitutional interest that itself provides the foundation of the U.S. Constitution.6 Although the latter argument has been challenged on historical grounds, both concerns are widely held and need to be taken seriously in any attempt to address the modern conflict. The current property rights debate has, if nothing else, reinforced the point that legal doctrine does matter. An understanding of the law is essential to reconciling property rights and environmental regulation. This Article examines one aspect of the debate--the nature of the property rights at issue.7 It seeks to identify the many limitations on property rights that arise out of characteristics that "inhere in the title itself."8 Specifically, this Article accepts Justice [24 ELR 10233] Antonin Scalia's invitation in Lucas v. South Carolina Coastal Council to identify "the restrictions that background principles of the State's law of property … already place upon land ownership,"9 and assesses the extent to which these limitations provide a basis for environmental protection. Properly understood, property law sustains environmental regulation.10 This Article first traces the development of legal philosophy concerning property and the practical application of legal doctrines in property cases.11 Next, this Article examines the particular elements of property, demonstrating that the law recognizes limitations on property apart from those extrinsic limits imposed by the doctrines of nuisance and police power. This Article concludes that environmental regulation to support evolving expectations developed as an essential precondition to the property right as we know it, and that property rights and environmental regulation generally are interdependent, rather than conflicting. From a historical perspective, it is clear that environmental regulation has a strong basis in property law and that most takings challenges to such regulation are efforts to modify, not defend, property rights. Legal Philosophy of Property Law In legal philosophy, property begins with possession. The popular maxim "possession is nine-tenths of the law" suggests the importance of personally holding and using property in order to secure recognition of the right. Nevertheless, physical control is not the sine qua non of property. Although physical control may provide the basis for excluding others,12 the fact of possession says nothing about the legal character of the possession.13 Furthermore, property is not merely "a distinction between 'mine' and 'yours.' Such a differentiation can be found in most societies and at a very early stage. Even in our own society that distinction does not uniformly indicate property; at times it indicates mere attachment."14 Even if a claim is greater than attachment, and indeed is commonly recognized by all others, it still is not property without some formal recognition: "property as a legal phenomenon occurs only when an individual's claim to a parcel of land is not dependent on his own strength or on a personal relationship," but "when title is protected by a bureaucratic authority according to set rules."15 The 17th-century English philosopher, John Locke, contributed much to a theory of property that was familiar to the framers of the U.S. Constitution and the Bill of Rights.16 In 1690, Locke wrote: "the state all men are naturally in … [is] a state of perfect freedom to order their actions and dispose of their possessions and persons as they think fit … without asking leave, or depending upon the will of any other man."17 In this hypothetical state of nature, people have property rights in the things with which they mix their labor--for example, by cultivating land, collecting raw materials, and fabricating products.18 People's enjoyment of such things is, however, "constantly exposed to the invasions of others."19 Consequently, Locke argued, "the great and chief end … of men's uniting into commonwealths, and putting themselves under government, is the preservation of their property."20 It is not clear that such a state of nature ever really existed, or that it was, in fact, the basis for civil government,21 but as a philosophy of property law it makes a great deal of sense. Locke's views on property were known in the American colonies and coexisted with the perspectives of others, such as Thomas Jefferson and Benjamin Franklin. Jefferson, who compiled and codified the common law of Virginia for the legislature in the late 1770s, argued that "the earth is given as a common stock for man to labour and live on," and that "for the encouragement of industry we allow it to be appropriated."22 While this reflects an economic view similar to Locke's--that property is protected in order to encourage industry--it suggests further that property did not form the basis for the civil compact, but vice versa. Consequently, Jefferson did not support the view that preservation of property is the primary justification for government. In fact, Jefferson was interested in the social implications of property law. The ambassador to France at the time of the U.S. Constitution's framing, he was appalled at the French system of property rights, which did not allow labor to realize a reasonable share of its own fruits. In a famous letter to James Madison, Jefferson bemoaned the "unequal division of property which occasions the numberless instances of wretchedness" and argued that legislators should invent ways of promoting land reform, including confiscatory taxation, abolition of primogeniture and entail, and land grants.23 "Whenever there is in any country uncultivated lands and unemployed poor, it is clear that the laws of property have been so far extended as to violate … the fundamental right to labour the earth."24 Benjamin Franklin also argued that the right of property depended on society and not vice versa:
Jeremy Bentham, a young contemporary of Franklin and Jefferson's, contended that "property is nothing but a basis of expectation of deriving certain advantages from a thing which we are said to possess, in consequence of the relation in which we stand toward it."26 This theory was consistent with Locke's, but focused on the consequences of the civil compact, rather than positing that property was the basis for the compact's existence. While justifying property rights on a utilitarian basis, Bentham argued that "property and law are born together, and die together. Before laws were made there was no property; take away laws and property ceases."27 The early 19th century was a period of ferment in American property law. The issues largely involved how to reconcile a system of common-law property rights and categories inherited from England with the needs of a booming industrial economy in a land-rich, but thinly populated, country. The American legal writing of the period was primarily technical, rather than theoretical. The theoretical writing tended to focus on issues of federalism and constitutionalism.28 There was little written about property rights as such, except by Bentham in England. Indeed, the next major voice to address the broad issue of property rights was that of Justice Holmes, whose scholarship, intellectual force, and pellucid prose dominated the field from the 1870s through the 1920s. Holmes considered himself a realist--regarding the law as a practical response arising from human activities and conflicts, rather than an elegant set of logical principles. In his painstaking study of the common law, which was first published in 1881, he emphasized the importance of the law's conforming itself to society's expectations. With respect to the common law of property, he wrote, with characteristic vividness:
Holmes attached great importance to the proper understanding of legal "rights" in property. Rights, he observed, do not create the power to exercise physical dominion over a parcel of land or an object; rather, they merely furnish the public's commitment to defend the person exercising dominion from certain intrusions by strangers.30 Holmes [24 ELR 10235] observed that "within the limits prescribed by policy, the owner is allowed to exercise his natural powers over the subject-matter uninterfered with, and is more or less protected in excluding other people from such interference."31 Thus, for Holmes and the other realists, a property owner's ability to use property depended on a variety of practical factors. Property was not absolute, but relative; the state would assist the owner in excluding certain other claimants, but would not protect the owner in undertaking all uses. In 1927, Professor Morris Cohen argued that 17th-and 18th-century philosophers such as Locke had portrayed private property as an absolute because they needed to negate similarly absolutist claims by the aristocracy.32 The claim of absolute dominion, therefore, did not inhere in property itself, but in the context of the social conflict then at center stage. Indeed, Cohen argued, state-imposed limitations on property are necessary to protect the value of property rights. Otherwise, countless, incompatible acts by independent, "absolute" owners would render "property in general valueless."33 While 20th-century lawyers "continue] [ the absolutistic conception of property," they overlook the limits that are essential to the exercise of property rights in society.34 Nearly 20 years earlier, Holmes had written:
In sum, these and other thinkers36 of the early 20th century believed that property is not, and never was, absolute. Cohen wrote:
The classical school of legal theory, which held sway roughly from 1780 to 1910, "asserted that legal liberties were permissions by the sovereign to engage in self-regarding acts," so long as they did not hurt others.38 At the same time, "the legal system imposed duties on others not to interfere with the permitted acts."39 This simple world view, which was based on the experience that conflicts in uses were infrequent, gradually became untenable as such conflicts increased. In contrast, the "modern school," exemplified by Holmes and the realists, recognized that the legal system had many rules that permitted harms. "It became the dominant view that there were limits to the protection granted virtually every legally protected interest."40 Where legal scholars diverged--and diverge even today--was on the nature and extent of those limits. Despite the intellectual ferment of the last half-century,41 the Holmesian view still holds sway among American legislators, lawyers, and judges. It is this view that must be considered in any attempt to address the current property rights-environmental regulation debate.42 Importantly, this concept of property regards with suspicion claims of "rights" and affirms that the exercise of rights by one person [24 ELR 10236] is confined by the rights held by others. And it rejects the notion that it is the law's duty to make persons whole for all genuine or perceived injuries. Historical Origins of Property Law To understand American property law in practice, as opposed to theory, we must look first to the origins of property. These have been traced back to the development of the English common law, beginning in the late 12th century with the gradual acquisition of jurisdiction over feudal tenures by King Henry II's royal courts.43 The activities of these courts brought about the first recognition of juridical property rights in the common law. However, most Americans and their lawyers would have difficulty recognizing the rights so delineated. Feudal relationships involving land were, in fact, the antithesis of property rights. The only recognized rights were those arising from personal duties among fighting men. Properly equipped knights were expensive and scarce.44 Life was short and there were no insurance companies. To deal with these exigencies, a bargain developed--what we might today think of as a bilateral, personal services contract. To be precise, "the feudal relationship involved profound mutual obligations, represented and secured by a precarious grant of land."45 The land grant was the price of the loyal service of the knight.46 But this arrangement was not "ownership." Being personal, the bond dissolved upon the death of the lord, and the lands reverted to the lord's heir until they were regranted. The bond also terminated when the tenant died, subject only to the lord's continuing duties to provide for the tenant's male heir (the eldest son only) and to find marriages for the tenant's widow and daughters. A breach of obligation by the tenant, at any time, could result in loss of the grant. Land could not be sold or willed, and there were no effective means to assure that an heir could succeed to a grant. Indeed, the lord's feudal obligations were not enforceable--although breaches could inspire lack of confidence on the part of other tenants.47 The feudal system began to change with the Compromise of 1153, which resolved a prolonged civil war.48 There was a practical need to reconcile the feudal claims of the followers of competing claimants to the throne. Because these claims were personal in nature and the war ended by compromise, the usual expedient of simply throwing out the claims of the loser's followers and making new grants to the winners was not available. The Compromise of 1153 established both a rule for deciding between the adverse claimants and a mechanism for enforcement in the form of a writ issued by the king's court.49 This modest innovation gradually led to others. The 1176 Assize of Northhampton followed another civil war, in which Henry II prevailed over his eldest son and many of the barons.50 The Assize established supervision by the royal courts over certain future actions of feudal lords that concerned granting feudal tenements upon their tenants' deaths. It did not interfere with the lords' dealings with the tenants themselves, but it created the writ of mort d'ancestor: a remedy in the royal courts to compel lords to recognize the claims of widows, daughters, and minor heirs of deceased tenants.51 The writ thus granted to the dependents of feudal tenants a judicially enforceable set of rights. The assize of novel disseisin developed within the next decade. This procedure allowed feudal tenants themselves to challenge dispossession by their lords. Traditionally, this had been a matter subject only to the lords' own justice. By the end of the 12th century, however, it was a "rule of law" that "no man need answer for his free tenement without a royal writ."52 The common law had thus evolved to accommodate changes in the expectations of the holders of feudal tenements. Property arose when rules enforced by the courts "eradicated the discretionary character of the feudal relationship and thus the precarious quality of the fee."53 Nevertheless, the "freehold" property thus created was fettered in many ways. Among other limitations, it was not freely alienable, it required the continuing performance of feudal obligations, and it could not be disposed of by will.54 In the late 13th century, disputes began to arise when tenants attempted to alienate lands, or to subinfeudate without obtaining the permission of, or paying the fine to, their lords.55 In 1290, the statute Quia Emptores56 resolved both of these issues. The statute granted to each freehold tenant who did not hold directly from the king the right to alienate his freehold without paying a fine to his lord. However, the statute also provided that the new tenant would hold directly from the lord, and not by subinfeudation, thus assuring the lord's ability to enforce the feudal obligations against the actual landholder. Quia Emptores substantially confirmed the 13th century's evolution of feudal tenures into property by making land alienable without regard to the lord's desires. Some of the feudal character remained, however: the lord was still entitled to the services, incidents, and aids required by the freehold.57 A gradual loosening of the lingering tenurial bonds continued in succeeding centuries.58 By the 17th century, most forms of tenurial obligations had been converted to monetary payments, or quitrents.59 Not until 1660, however, were the feudal incidents abolished by Parliament.60 Thus, at the time the United States was colonized, property law possessed attributes associated with both real property and personal obligation.61 The nature of property was thus based on a long history of feudal tenures as modified by legislation and common-law rules. As former obligations disappeared, formal rules of law proliferated. If, by the 18th century, some thinkers regarded private property as "absolute," this idea could claim some support from property's feudal roots. Under feudalism, dominion had been absolute, but ownership was conditional. Social development and the evolution of the common law had gradually removed most of the feudal conditions on ownership. Property was not, however, free from all constraints. It is important to understand what the property right did and did not encompass:
Dominion specifically relied on the enforcement of every property owner's expectation that no other property owner would undertake novel experiments or upset settled expectations. Indeed, "the great English gentry, who had played a central role in shaping the common law conception of land, regarded the right to quiet enjoyment as the basic attribute of dominion over property."63 This was an inherently conservative world view, conducive to such things as preserving open space, preventing pollution, and encouraging community stability.64 The importance of ensuring quiet enjoyment led to substantial land use regulation in the American colonies.65 Boston, Salem, and Charlestown, among other cities, controlled the location of slaughterhouses, distillers, and other uses.66 Pennsylvania required private landowners in Philadelphia and surrounding counties to plant trees on their lands "to the end that the same town may be well shaded from the violence of the sun in the heat of summer and thereby be rendered more healthy."67 The developing economy of early 19th-century America brought challenges to the common-law principles that had been applied to protect the right to quiet enjoyment. Leaving land the way it was or putting it to agricultural use was the common-law norm. "Sic utere tuo ut alienum non laedas"--use your property so as not to harm another's--was a common-law rule of property, not just of tort. However, industrial activities began to infringe on [24 ELR 10238] quiet enjoyment rights. Landowners began to suffer from the effects of water pollution, smoke, noise, slums, loss of subjacent support, and the like. Professor Morton Horwitz identifies two doctrines that were regularly used in the 18th century to resolve conflicts over property use. The first limited property owners to uses that were regarded as "natural," or agrarian.68 For example, agrarian uses of rivers were favored over other uses, such as dams.69 The second doctrine held that priority of development allowed the first developer "to arrest a future conflicting use."70 In the 18th century, this theory of priority was "harnessed to the common antidevelopmental end."71 For example, if a landowner erected a dam or operated a grist mill, subsequent development by others would be enjoined if it interfered with the first use.72 Use of the two doctrines began to diverge in the 19th century. The second was eventually enlisted against the first in support of development. Priority was justified on the new, utilitarian basis that its protection was necessary to induce investors.73 The doctrine of priority was attacked, in turn, by the next wave of development. A new law of property had to be found, for example, to allow the newer and larger mill dams to swamp the old. For riparian purposes, "reasonable use," or balancing, became the law's doctrinal instrument.74 This new doctrine of reasonable use was potentially inconsistent with the 18th-century right to quiet enjoyment. Other legal rules changed, as the "absolute" right of all owners to restrain all other owners became increasingly problematic.75 Other English common-law doctrines were overturned. For example, at English common law, any fundamental alteration by a tenant of the condition of the land was deemed "waste" and would lead to forfeiture of the estate and payment of damages.76 Most American courts rejected the doctrine of waste.77 Likewise, an English common-law rule held that the victim of a breach of warranty of title could recover only the purchase price of the property improperly conveyed, even if the victim had constructed improvements on the property.78 This rule had made sense under the tenurial system because land values were stable and improvements either were not expected or would have constituted waste. Given the different circumstances in 19th-century America, however, statutory and judicial measures to remedy this problem were attempted.79 Eventually, the law was changed.80 Courts were soon called upon to protect the interests of the public against the manipulations and alterations of private property that the law had changed to accommodate. In effect, having stripped from property much of the protection provided by the law of quiet enjoyment in order to foster development of the American continent, the courts found it necessary to restore quiet enjoyment values and other interests of property owners and the public in a different way. The new limitations developed by the courts were not restricted to public and private nuisance law,81 or even to the broader police power.82 The courts also invoked historical understandings of relative property rights and the limited nature of what is held as property to restore the historical balance. This recognition of inherent limitations occurred concurrently with the prodevelopment changes in the common law in the mid-19th century. For example, in Commonwealth v. Alger,83 the Massachusetts Supreme Judicial Court determined that Massachusetts was entitled to block the construction of private wharves. Significantly, the court ruled that the legitimacy of the state's action did not depend on whether the prohibited construction was "a nuisance at common law."84 Instead, the court looked to colonial ordinances of the 1640s to determine that this assertion of [24 ELR 10239] legislative power was not an innovation. The Alger decision thus represents an early instance of a court's use of the preexisting limitations that underlie property rights as a means of limiting development. An even more interesting case is Commonwealth v. Tewksbury,85 in which the court considered a takings challenge to a Massachusetts statute that forbade the removal of stones, gravel, and sand from the beaches of Chelsea. The fee simple owner of property along the beach had been indicted for removing sand and gravel. He defended with the claim that the statute was invalid because it deprived him of property without just compensation in violation of the Massachusetts Declaration of Rights. The court held that there was no compensable taking.86 It did not, however, rely on nuisance law. The court stated that the nuisance power is available when an injury is "plain and palpable," but that the legislature also has the power to interpose when "the things done in particular places, or under a particular state of facts, would be injurious, when, under a change of circumstances, the same would be quite harmless."87 The court upheld the statute because it protected public and private property from potential loss occasioned by incompatible uses of private property.88 The need of 19th-century American courts to rationalize conflicting expectations about property rights explains the divergence of "police power" from "nuisance" law. In practical terms, the law, having deviated from the common law's uniform protection of quiet enjoyment of nonintensive uses, was compelled to restore those values in a new way--through upholding regulatory legislation. Many of the cases that we now describe as instances of the police power are really nothing more than the reinstatement and enforcement of ancient expectations of property rights.89 Indeed, Village of Euclid v. Ambler Realty Co.,90 the famous Supreme Court case upholding general land use regulation, is properly understood in this light--it is a property law case, not a nuisance case.91 This review of history reveals that the "background principles of the State's law of property"92 are fundamentally those of harmonizing conflicting expectations against a historical backdrop of quiet enjoyment of property. Today, the right to quietenjoyment has been relaxed to accommodate more intensive uses than those of Angevin England or even those of 18th-century America. This leaves the legal system in the mode of ad hoc balancing of claimed rights. This balance frequently has been struck in ways that significantly limit property use without requiring the payment of "just compensation." Elements of the Property "Right" Property rights, having arisen customarily, achieved legal status by the interposition of the sovereign--acting through the courts or the legislature. In the United States, the states have been the relevant "sovereign" for property matters, based on the alternate theories that (1) they are successors to the Crown and hence the source of all title, or (2) as the ratifiers of the federal constitution, they are parties to the compact that defines the protected property interest.93 In 1981, Professor Michelman asked whether the property rights recognized in the U.S. Constitution are creatures of state law or whether they have a constitutional dimension independent of state law.94 Both doctrines are evident in our legal history:
It appearsthat both views are partly true--property does have a constitutional dimension, but states have a great deal of latitude to define its form and content. Such latitude is far wider than is frequently recognized.97 Government can change the form of property and curtail its uses. It may, for example, abolish tenures;98 change the law of adverse possession; terminate a lease upon destruction of the premises;99 and call in all gold coinage and cease to allow its use as legal tender.100 A state can abolish "tenancy by the entireties," even if it will expose spousal owners to loss by allowing execution of judgment liens based on individual debts incurred prior to the abolition. A state may abolish or change the spousal share chargeable to an estate. The federal government may make termination of a voluntary pension program subject to an involuntary payment.101 The government may levy taxes and execute tax liens. None of these actions "takes" property in the sense that it deprives the owner of what was his or hers. All of these actions reflect limitations that "inhere" in the nature of property.102 Property is customarily described as comprising a "bundle of sticks" or "strands,"103 which represent particular attributes of the property "right." Each strand itself is not the property right, but is an attribute of property which, together with other attributes, gives property value. The bundle of strands is itself part of the social compact reflected in statutory law and the U.S. Constitution. The importance of this is made clear in Jackman v. Rosenbaum Co.104 Justice Holmes, writing for a unanimous Court, denied a takings claim brought by a property owner who had suffered a permanent, physical invasion of his real property under color of Pennsylvania law. The law allowed a neighbor, over plaintiff's objection, to tear down an existing wall of plaintiff's building and erect a party wall situated half on plaintiff's land and half on the neighbor's land. In addition, plaintiff had lost the use of his building during the construction period. The state courts had relied on the police power to deny plaintiff's claim, but the Supreme Court found it "unnecessary to decide on the adequacy of these grounds."105 Instead, the Court based its decision on the nature of the property interest involved. Although the land had been indisputably invaded, the Court noted that practice and legislation in Pennsylvania had recognized similar invasive rights since the days of William Penn, and that the adoption of the Fourteenth Amendment did not eradicate history. Holmes wrote:
Thus, in takings claims, the expectation that the law will protect a given property interest is tempered by the nature of the interest and its historical treatment. Nuisance law and the police power are not the only relevant inquiries; there is a substantial historical basis for other limitations. These are part and parcel of the property right itself, and their assertion by a legislature and enforcement by a court "takes" nothing from the claimant. The bundle of strands constituting property frequently includes: (1) exclusion of others; (2) occupancy and use for enterprise; (3) conveyance; and (4) devise.107 Limitation or loss of a particular strand does not, under many circumstances, give rise to a claim for compensation.108 Although the power to exclude others is arguably the most important attribute of property, governmental action may limit the power in many ways without causing a compensable taking. Indeed, our legal history has shown a broad range of bases on which the power to exclude is either not part of the bundle of rights attached to a particular parcel, or is quite attenuated. For example, regulatory measures adopted to protect property rights can themselves abrogate the power to exclude. Rules concerning deed recordation may oust the owner of real property who has not recorded his or her interest, in favor of a subsequent bona fide purchaser for value who has recorded the conveyance. While the defrauded owner may have a cause of action for damages against the false grantor, the bona fide purchaser gets to keep the land. The ousted owner--who was the property owner both in law and in fact absent the subsequent conveyance and recordation--has neither the power to exclude the bona fide purchaser nor a cause of action against the state for a taking. Seizures to enforce judgments also act to abrogate the right to exclude--as well as all other rights in property. Successors to the medieval distraint,109 seizures to enforce judgments allow the state to satisfy the personal claims of others who are, in fact, strangers to the title. The sheriff ousts the owner and sells the property for the benefit of creditors. Thus, an owner who does no more than quietly occupy the land without paying taxes can be ousted--not as punishment for an unlawful act, but because the property interest remains subject to the powers of the state, acting through the sheriff. Forfeiture, which is based on the conditional nature of property rights, is also a long-standing feature of the common law. Historically, there were three kinds of forfeiture: (1) deodand, which demanded forfeiture of an object that had caused the death of another;110 (2) forfeiture of lands and goods upon conviction of a felony or treason;111 and (3) statutory forfeiture.112 Forfeiture is an action against the property, not against the person. It overrides the power to exclude, and it does so based on doctrines that do not even implicate Fifth or Fourteenth Amendment takings.113 In effect, because the property owner has violated the terms of the civil compact that gave rise to the property interest, or at least to the expectation that the owner's interest would be protected by the state, the state is merely imposing on the owner the consequences of his or her breach. Even the right to exclude others, not just from entering, but from occupying one's property, has been limited in some circumstances. For example, rent control and condominium conversion statutes can limit an owner's ability to evict a tenant, and landlord-tenant regulation can pose a substantial obstacle to a landlord's access to his or her own property when a tenant has held over or withheld rent.114 In fact, under certain circumstances, physical access by strangers to privately owned land is guaranteed by a substantial number of doctrines that "inhere" in the title to land. These include a broad array of state laws and common-law doctrines, the law of custom, prescriptive easements, civil rights, the public trust doctrine, the federal navigational servitude, and common-law abridgements of prescriptive rights. For example, the Pennsylvania Constitution of 1776 expressly guaranteed the public's right to enter and hunt on unenclosed, privately owned land.115 Colonial Massachusetts had a "great pond" ordinance, which secured the public's right to fish and hunt fowl on ponds larger than 10 acres.116 Minnesota adopted a similar doctrine judicially in 1893, assuring public access to, and use of, navigable lakes surrounded by private land, including access across privately owned dry land.117 Oregon recognizes similar interests in public use of the waters of the state.118 Montana guarantees public access to waters of the state, including rivers and streams, even if they are landlocked by private lands.119 South Carolina recognizes limits on the state's authority to allow private closure of navigable waters to public access.120 New Jersey courts have held that the public must be given access across dry-sand beach owned by municipalities or private associations.121 In the 1969 decision, State ex rel. Thornton v. Hay,122 the Oregon Supreme Court relied on the law of custom123 to hold that private owners of beachfront land along the Oregon coast could not exclude others from the dry-sand portion of their property. "The rule in this case, based upon custom, is salutary in confirming a public right, and at the same time it takes from no man anything which he has had a legitimate reason to regard as exclusively his."124 Consequently, to this day, the general public owns a recreational easement in the privately owned, dry-sand beach along the entire Oregon coast.125 The Thornton doctrine was reaffirmed in 1993 in Stevens v. City of Cannon Beach.126 The Stevens court held that public use of dry-sand beach is a limitation that "inheres in the title itself."127 "When plaintiffs took title to their land, they were on notice that exclusive use of the dry sand areas was not a part of the 'bundle of rights' that they acquired.…"128 Similarly, under the common law of other states, the public may acquire by prescription easements for use of private property.129 In addition, certain individual or societal rights may trump a private owner's power to exclude, or a court may find that the owner has waived that power.130 The public trust doctrine also provides a basis for limiting the power to exclude.131 Its origins are frequently traced back to Illinois Central Railroad Co. v. Illinois,132 in which the U.S. Supreme Court held that the state's grant of waterfront property along Lake Michigan to a railroad company was revocable, as the state held such lands in trust for the benefit of the public.133 Public trust law has been applied mostly in the context of waters and adjacent lands.134 The doctrine is commonly understood to protect, at least, the public's uses of land and water for fisheries, navigation, and recreation.135 The "navigational servitude" is a federal counterpart to many of these state limitations. It is the federal government's paramount right to assure the public's access to, and use of, navigable waters, regardless of the underlying ownership interest. It thus constitutes a limitation on the title to lands submerged by navigable waters.136 Assertion of the navigational servitude power takes from the private landowner nothing that belongs to him or her; it is not a compensable intrusion.137 This remains true when the government's action does not merely prevent the private owner from engaging in activities that obstruct navigation, but invades and destroys other lawful activity of the owner.138 Private owners who place structures in navigable waters may be acting within their powers as owners--that is, not subject to any neighbor's approval--yet the federal government may require removal of the structures without paying compensation.139 In quite a different way, the English common law had protected property owners' access to sunlight and air, especially in urban areas.140 This doctrine, known as "ancient lights," created a legally enforceable property interest in the form of a prescriptive easement.141 However, the ancient lights doctrine was judicially abolished in the United States.142 Thus, this "right" to exclude disappeared. The ability to occupy or use one's property for profit-making activity is an important power in the bundle of sticks. However, it, too, is subject to substantial limitation. Many forms of economic regulation existed in colonial times and thus constitute part of historical property law as it was understood by the framers of the Fifth Amendment.143 Usury laws are among the earliest limitations on the use of property for profit.144 Regulation of rents is a similar, and long-standing, limitation on profitable uses.145 Rate regulation isconsistent with the Fourteenth Amendment so long as a reasonable rate of return is realized.146 Moreover, the government may temporarily prohibit lawful business activities, without owing compensation, during exigencies.147 Perhaps more to the point are the many decisions denying compensation to landowners whose claims were predicated upon the assumption that they would be allowed to manipulate the landscape for profit. The common-law tenet that real property is suited for use in its natural state, and that no one should be presumed to have a protected right to alter it, lives on. Most land use controls--such as lot sizes, density, building heights--are based on this notion, as well as on the power to prevent nuisances.148 For example, one may expect to live on the property one owns, but without a building permit and sewer hookup (or septic tank and leach field permits), much privately owned land is not legally habitable. Laws protecting the natural environment also have been an enduring part of American property law. William Penn, the putative author of the party wall provisions that barred the takings claim in Jackman,149 also required by law that [24 ELR 10244] landowners leave one acre of forest standing for every five cleared.150 Some states have also invoked the public trust doctrine to limit changes in use that would require alteration of either the land or existing land uses.151 The leading case justifying the application of natural use limitations as part of the background principles of property law is Just v. Marinette County.152 Landowners challenged a zoning ordinance that prohibited a person from changing, except by special permit, the natural character of land situated within 1,000 feet of a navigable lake or 300 feet of a navigable river. Prior to the ordinance's passage, plaintiffs had purchased lakefront property, subdivided it, and sold five parcels. They then challenged the ordinance as applied to their plans for further development and construction within the lake protection zone. The Wisconsin Supreme Court upheld the ordinance. "Is the ownership of a parcel of land so absolute that man can change its nature to suit any of his purposes?" asked the court,153 answering its own question as follows:
The reasoning of Just has been expressly applied in New Hampshire155 and New Jersey,156 where courts have made it clear that constitutional limitations were not intended to encourage the speculative acquisition of property which, in its existing condition, is not suited to development.157 Although courts have resolved many takings cases by finding that the plaintiff retained some economically beneficial use of the land,158 many decisions suggest that where the economic use--particularly if it is prospective--depends on landscape manipulation, it is entitled to no protection against governmental action. For example, in Consolidated Rock Products Co. v. Los Angeles,159 zoning prohibited plaintiff's proposed gravel-mining operation. The trial court found that the land had "no appreciable economic value" for any other purpose, but upheld the zoning against a takings claim. The California Supreme Court affirmed, deferring to the legislative decision while observing that "the necessity and propriety of the legislative action in this case is one upon which reasonable minds may differ."160 Although the ability to alienate one's property is often regarded as a fundamental characteristic of property, the power to convey is not necessarily an essential part of the property right. Indeed, the tenures in land recognized by the common law were not legally conveyable for many centuries. A given conveyance still may be invalid if it violates the rule against perpetuities. Licensing requirements and certain regulatory prohibitions on the sale of personal property are not compensable takings.161 Moreover, a state may limit the sale of some resources affected with a public interest without having to pay compensation.162 Powers to convey have been expanded and contracted [24 ELR 10245] throughout our history. For example, it is well-established that a state can prohibit a spouse from alienating marital property without the other spouse's consent.163 The abolition of dower--which increases alienability--is not, however, a taking of the dowager's property.164 At the time the Fifth Amendment was ratified, many states did not permit married women to own or convey property. Any property a woman may have had prior to marriage became subject to the control and disposition of her husband. Similar state laws existed at the time the Fourteenth Amendment was adopted. These measures were not deemed takings of women's property; nor were the laws repealing them compensable takings of men's property.165 A common thread in many of the decisions concerning limitations--or removal of limitations--on the right to convey is the maxim that no one has a vested interest in the continuation of a law or legal interpretation.166 On these grounds, in Ward v. Harding,167 the Kentucky Supreme Court recently upheld a state constitutional amendment that retroactively abolished the "broad form" deed.168 The court rejected a Fourteenth Amendment claim by coal operators who asserted an unconstitutional taking of their right under these deeds to strip mine coal. In addition, the law often rejects limitations on alienability directly attempted by supposedly "absolute" owners. For example, racially restrictive covenants running with the land are unlawful.169 Even the power of a person to choose his or her own purchaser or tenant is limited. Property operates in the context of a social compact. Part of that compact in the United States is that private discrimination in the sale or lease of private property can be constitutionally prohibited without infringing on property rights.170 The power to devise--to dispose of property by last will and testament--is also assumed to be one of the important sticks in the bundle of rights. However, this power is an innovation of comparatively recent origin. For much of history, property either descended by rules of relationship or reverted to the grantor. Wills as to land originated in Tudor England, and the first Statute of Wills was enacted in 1540.171 A compromise measure, it allowed a freeholder to devise by will a fee simple held in socage, and two-thirds of land held by knight service.172 Today, while the power to devise is substantial, it may be limited by taxation--even at confiscatory rates, spousal rights, probate fees, liens enforcing debts of the estate, and formal testamentary rules that, if not precisely followed, operate to compel courts to disregard the testator's known, uncontroverted wishes. Certain common-law rules regarding trusts and estates can also frustrate devises that otherwise make perfect sense and appear to be within an "absolute" property right. These include, for example, the rule against perpetuities and the rule against unvested contingent remainders.173 The legislature can also abolish certain forms of property that control inheritance.174 Governmental power to change the ability to devise property does have some limits, but these are uncertain.175 In sum, powers over property recognized by law have varied over time and over subject matter. History reveals a [24 ELR 10246] plethora of restrictions, limitations, and abridgements that goes beyond the state's power to abate or restrain nuisances, or to provide for specific protections through the police power. States' substantial, albeit not unlimited, power to modify the attributes associated with property are among the background limitations of property that developed along with the property right itself. Basis for Environmental Regulation To characterize the regulation of use as an "invasion" of property rights is to misperceive the very nature of property. Indeed, since the 12th century, regulation in support of evolving expectations has been the central force in creating, defining, and preserving that bundle of rights and obligations that constitutes "property." The expectations to be protected are not limited or defined by investment-backed expectations of landowners. Rather, they include the expectations of all parties to the social compact in which property rights are rooted. In other words, environmental protection is not at odds with property; it is part and parcel of the same relationship between society and the individual that gives property its meaning. The resurrection--or construction--of an absolutist view of property is an attempt to reopen many of the issues previously resolved in the 19th century (nuisance law, the police power, the taxing power) and the 20th century (social regulation, regulation of private enterprise, fees and charges). Advocates of the absolutist view purport to base many of their challenges to regulation on the Fifth and Fourteenth Amendments to the U.S. Constitution. But because those amendments must be read to incorporate the concept of property as it has been defined through years of historic development, the U.S. Constitution does not provide a viable vehicle for such attacks. Preserving each individual's rights, as they affect, and are affected by, the rights of others, requires legislatures and courts to look beyond the "tyranny of small decisions" to protect the usefulness and value of land to the commonwealth.176 Two points are critical here: First, environmental regulation is most likely to be sustained against takings challenges when it promotes fair allocations of the burdens and benefits associated with preserving and enhancing the value of property to individuals and society.177 Second, just compensation doctrine has never protected every use that one might make--or hope to make--of his or her property. Environmental regulation promotes fair allocations of property's burdens and benefits, in part, by internalizing to given parcels the externalities that would otherwise be imposed on others.178 The concept of eliminating the free rider goes far back to the common-law concepts of nuisance and quiet enjoyment. While, in the past, a property owner or user was required to find some unobtrusive place to carry out an activity that affected his neighbors,179 increases in population and property ownership have limited the availability of such places. Environmental regulation helps rationalize this conflict by preventing manipulations of land that allow one owner to reap benefits while producing detriments to others.180 This is true not only for cases involving public or private nuisance, such as air or water pollution that injures a neighbor, but also for cases that involve the conversion of natural resources to developed uses. An owner's draining of his or her wetland for profit might, through cumulative effects, promote additional flood damage to another's property, or it may bankrupt a Canada goose hunting guide business miles away. Such injuries are difficult to redress at common law--due, for example, to historical conceptions of foreseeability and practical problems of proof--but may be more appropriately avoided through regulatory legislation. Regulation that internalizes externalities does not require payment of compensation, because--consistent with common-law concepts--it is designed merely to reconcile conflicting individual interests. Such governmental actions are fundamentally protective of the general value of all private property. Claimants who seek to be paid for their cessation of pollution or for forgoing alteration of lands are, in effect, seeking payment for the limitation of options that, as a matter of law, they exercised only with the acquiescence of others, not as an attribute of their property. There is no compensable interest in the market's continued failure to internalize externalities.181 Property rights are exercised within the context of a society which, at times, bears some of the burdens of property owners' activities and, at other times, takes steps to enhance the value of property to owners. One role of environmental regulation is to adjust these burdens and benefits. But such adjustments necessarily must be general in nature. For example, nearly 90 years ago, the Supreme Court considered a railroad company's challenge to a lien assessed against its property for the paving of an adjacent road.182 Given the company's use of its property, the paving provided no reciprocal benefit in return for the assessment. In an opinion by Justice Holmes, the Supreme Court rejected the challenge, holding that the legislature need not determine the assessed improvement's effect on each property, nor must every property actually benefit.183 The fact that some property owners may experience adverse effects as a result of a governmental action does not necessarily trump the positive effects it may produce, nor is compensation owed to those who feel they experience only the cost but little of the benefit.184 Arguments that just compensation doctrine should protect all uses of property--whether such uses are changed, speculative, or preexisting--are inconsistent with the underlying common law of property. Indeed, courts generally reject the idea that landowners should be compensated for governmental limitationson prospective uses that depend on manipulating land. There is a significant theme in many of the regulatory-takings cases against protecting speculative uses of property. The Supreme Court of New Hampshire clearly articulated this point in Claridge v. New Hampshire Wetlands Board.185 The court upheld the denial of a wetland development permit against a takings claim and stated that "the State cannot be guarantor, via inverse condemnation proceedings, of the investment risks which people choose to take in the face of statutory or regulatory impediments."186 Likewise, in Graham v. Estuary Properties, Inc.,187 the Florida Supreme Court found no taking in an inverse condemnation case brought by a developer who had been denied approval to build a residential and commercial center in a mangrove swamp. The state regulatory agency had found that the proposed development would have added to the cumulative impact of other activities that were already degrading the water quality of adjacent bays. The court observed that the developer had purchased the land "with full knowledge that part of it was totally unsuitable for development" without substantial alteration--that is, the addition of fill.188 The court held that there was no property right to "change the essential natural character" of the property in order to profit from it.189 For the same reason that compensation would essentially make the government the guarantor of speculative enterprises, courts have rejected a number of creative arguments attempting to recast a "diminution in value" as a "taking" of a property owner's right to a "reasonable return on investment."190 Courts reject takings claims consistently when they concern land that was acquired with knowledge of existing or pending regulatory limitations.191 Moreover, when some use of the land in its existing condition is possible, the plans or dreams of a speculator generally are afforded no deference, let alone compensation.192 It is almost never a taking to deny a landowner a particular use of property, since landowners have never had a legally supported expectation that they could use their property in different or more intensive ways. Thus, a federal district court recently dismissed a regulatory takings claim with the following language:
For similar reasons, courts sometimes avoid deciding takings claims on grounds that the claims are not ripe for decision when plaintiffs may, but have not yet attempted to, make alternative uses of their property.194 Denial of a permit application for one proposed use does not preclude the grant of a permit for another use or uses.195 Indeed, the interplay between landowner proposals and governmental decisions merely represents the process of rationalizing potential intensive uses of property with underlying public rights and limitations. The principles noted above are rooted in the fact that the property right has never extended even to everything that one is already accustomed to doing with one's property. For example, the fact that owners could drain wetlands for decades without interference from the government--indeed, may have done so with governmental support--does not mean that a different governmental policy "takes" a vested property right.196 The owners may have relied on their natural powers and the forbearance of their neighbors to engage in this particular use. But as Holmes pointed out, "such words as 'right' are a constant solicitation to fallacy."197 Governmental response to private actions that have cumulative impacts may be justified as the assertion of an authority that the government always had, even if the significance of the cumulative impacts at issue is newly understood. Similarly, the government has the authority to change its administration of public resources, even when such changes affect private uses of those resources.198 Modern conflicts between property rights and environmental protection arise in a limited array of cases--primarily when proposals for intensive land uses meet rural or less-developed lands.199 These conflicts chiefly unfold in the areas of wetlands,200 mining,201 coastal development,202 [24 ELR 10249] floodplains,203 and open space and historic preservation.204 Challenges to state land use laws,205 forest management laws,206 and laws protecting endangered species207 are also likely to escalate. In contrast, the claims generally have not involved straightforward pollution control emissions limits or effluent guidelines.208 As population density increases, so do the intensity of, and conflicts over, land uses in rural and less-developed areas. Regulations to preserve limited resources, long recognized as part of the background of title in urban areas, are seen as innovations here. But they are not. In fact, in these areas, background principles of property law recognize that undeveloped lands have value without manipulation. While the common law of property protects productive uses, it even more strongly protects existing uses, including non-intensive uses such as recreation, agriculture, and preservation for aesthetic, historic, or other purposes.209 Lucas210 may be the exception that proves this rule. Lucas sought to build a house on two beachfront lots situated between other houses in a highly developed resort. As a result, the denial of permission to develop the property did not occur in a rural-urban interface where the undeveloped land retained value. Indeed, it was in an area where the claimant's expectations of being able to build were strong and consistent with the expectations of surrounding land users. The general public's expectations as to this particular piece of property, as expressed in a law of general applicability,211 were much weaker. Contrast the situation where a lot owner seeks to build the first house on a pristine beach; there, the relative strength of the relevant expectations and the background principles of property law governing alteration of natural land would dictate a contrary result.212 Apart from competing claims of right, it is clear that, as John Maynard Keynes reputedly said, "in the long run, we all are dead." In the context of environmental regulation, Stewart Udall, Secretary of the Interior under Presidents John F. Kennedy and Lyndon B. Johnson, put it a bit more poetically: "Despite our fee titles and claims of ownership, we are all brief tenants on this planet. By choice, or by default, we will carve out a land legacy for our heirs."213 A solid understanding of our legal heritage makes it clear that the roots of private property also form the basis of our laws protecting the environment. Environmental protection and respect for property rights are interdependent, not inconsistent. Environmental laws maintain the value of property, and protect its present and future use and enjoyment. Along with traditional concepts of nuisance and police power, environmentally based limitations on property use enabled the concept of property rights to develop in its current form. Thus, there is no inherent conflict between environmental protection and property law; they are two sides of the same coin. Against this background, most regulatory takings claims are best understood as attempts to redefine, rather than to preserve, the rights associated with private property. Disconnected from property's roots, such claims lack vitality and--in most cases--must fail. 1. The Path of the Law, in COLLECTED LEGAL PAPERS 167, 186 (1920). 2. For example, an executive order entitled "Government Actions and Interference With Constitutionally Protected Property Rights" requires federal agencies to conduct takings implications assessments for, and imposes limitations on, governmental actions that may affect private property interests. Exec. Order No. 12630, 3 C.F.R. 554, ELR ADMIN. MATERIALS 45037 (1988). Former Solicitor General Charles Fried provided one of the most candid assessments of the resurgence of interest in property rights:
CHARLES FRIED, ORDER AND LAW: ARGUING THE REAGAN REVOLUTION--A FIRSTHAND ACCOUNT 183 (1991). 3. Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 415 (1922). 4. See U.S. CONST. amends. V and XIV. 5. See, e.g., LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW § 9-7, at 608 (2d ed. 1988) (discussing the need to respect settled expectations of regularity, autonomy, and equality). 6. See, e.g., RICHARD EPSTEIN, TAKINGS: PRIVATE PROPERTY AND THE POWER OF EMINENT DOMAIN (1985). Epstein argues that because the underlying purpose of the government is "to protect liberty and property," government is required to "preserve the relative entitlements among the members of the group." Id. at 3-5. Compare Charles A. Reich, The New Property, 73 YALE L.J. 733 (1964):
Id. at 771-72. In the next paragraph, however, Reich goes on to say that "property is not a natural right but a deliberate construction by society." Id. at 772. 7. This Article does not cover the well-plowed ground of how those rights may be limited or invaded without constitutional injury by established doctrines such as public nuisance or the states' police power. See, e.g., John A. Humbach, Evolving Thresholds of Nuisance and the Takings Clause, 18 COLUM. J. ENVTL. L. 1 (1993); Miller v. Schoene, 276 U.S. 272 (1928) (police power). Nor does it attempt to scrutinize the Supreme Court's recent takings decisions, another subject of more-than-ample commentary. Such decisions include, inter alia, Lucas v. South Carolina Coastal Council, 112 S. Ct. 2886, 22 ELR 21104 (1992) and Nollan v. California Coastal Comm'n, 483 U.S. 825, 17 ELR 20918 (1987). Hundreds of articles, case notes, bar journal articles, and student notes have explored virtually every aspect of these decisions. One of the most interesting pieces examines how courts are applying Lucas' uncertain teachings. See Glenn Sugameli, Takings Issues in Light of Lucas v. South Carolina Coastal Council; A Decision Full of Sound and Fury Signifying Nothing, 12 VA. ENVTL. L.J. 439 (1993). 8. Lucas, 112 S. Ct. at 2900, 22 ELR at 21111. 9. Id. The U.S. Supreme Court observed that such restrictions, or regulations based on such restrictions, cannot give rise to a valid takings claim, even where the claimant experiences a total loss of economic value. Id., 112 S. Ct. at 2899, 22 ELR at 21110. 10. Property-based arguments are most useful in upholding regulatory requirements affecting land use. They are less useful in situations involving "exactions"--required conveyances of property to a governmental body to mitigate the projected cumulative impacts of proposed development. See, e.g., Nollan, 483 U.S. 825, 17 ELR 20918 (1987) (finding building-permit condition requiring grant of easement for public access across privately owned beach to be a taking); Dolan v. City of Tigard, 854 P.2d 437, 24 ELR 20151 (Or. 1993) (upholding against a takings claim land dedication requirements for storm drainage improvement and a pedestrian/bicycle path as conditions for issuing a building permit), cert. granted, 62 U.S.L.W. 3368 (U.S. Nov. 29, 1993) (No. 93-518). Background principles of property law provide more support for direct limitations on proposed activities. 11. It is critical to recognize that the history of legal philosophy and the history of legal practice regarding property are both the history of ideas. In the latter case, the ideas have legal force; in the former, social force, which may be translated later into legal force. But property itself--even real property--is in this sense "intangible." It consists of that set of facts and ideas that the government, through its courts, has seen fit to recognize, with due regard to principles of regularity and liberty. Property is not a "thing" in the same sense as is a physical wound, a building, or a tree. A "tract" of land is only a tract because the law says it is; otherwise it is simply land--on which there may be buildings or other physical objects. Some of these objects may help to define that which the law recognizes--for example, a fence or a "no trespassing" sign--but these do not themselves constitute property. Even a building is only property by virtue of a legal relationship. The building itself is only a building. We cannot tell by looking at it who is its owner. Indeed, even if there is a name emblazoned on it, the owner may well be someone else. 12. The right to exclude others is one of the attributes of property discussed infra. 13. Indeed, the possession of an object or a parcel of land may be a usufructuary interest in something that actually belongs to the community as a whole, but that is used by an individual with the community's consent. Alternatively, the possession may be in the character of a bailment--one holding for the benefit of another, or it may be wrongful--as in the case of theft. We do not say that a thief "owns" that which the thief has stolen. Therefore, though important, possession is not itself the basis of property. However, possession does sometimes give rise to "property," as when land is acquired by adverse possession. 14. Robert C. Palmer, The Origins of Property in England, 3 LAW & HIST. REV. 1, 7 (1985). For example, I may call land "my hometown," and the house in which I happen to live, "my house," though I have no legal interest in either. Similarly, a football uniform may be "my uniform," though the owner is, in fact, the school that paid for it and to which it must be surrendered at the end of the season. 15. Id. 16. Some modern commentators regard Locke as the proponent of a theory of absolute property rights. See, e.g., EPSTEIN, supra note 6, at 30-31. But see Thomas C. Grey, The Malthusian Constitution, 41 U. MIAMI L. REV. 21 (1986) (dissecting Epstein's argument as flawed history). 17. JOHN LOCKE, THE SECOND TREATISE OF CIVIL GOVERNMENT § 4 (1690). 18. Id. at § 27. 19. Id. at § 23. 20. Id. at § 123. 21. Indeed, anthropological studies of some primitive societies suggest more relational bases for government, such as blood relationships and taboos, and minimal regard for "property." See, e.g., BRONISLAW K. MALINOWSKI, ARGONAUTS OF THE WESTERN PACIFIC (1922). Similarly, even the highly organized civil societies of medieval Europe may have owed a great deal more to the requirements of mutual defense of the person and to some extent, the collective pursuit of gain, than to the preservation of interests in property. See discussion infra regarding feudalism. 22. Letter from Thomas Jefferson to James Madison (Oct. 28, 1785), in 8 THE PAPERS OF THOMAS JEFFERSON 681, 682 (Julian Boyd ed., 1953). 23. Id. at 681. 24. Id. at 682. 25. Benjamin Franklin, Queries and Remarks Respecting Alterations in the Constitution of Pennsylvania, in 10 THE WRITINGS OF BENJAMIN FRANKLIN 54, 59 (A. Smyth ed., 1907), quoted in Jerry L. Anderson, Takings and Expectations: Toward a "Broader Vision" of Property Rights, 37 KAN. L. REV. 529, 533 (1989) (capitalization modified). While there is no reason to believe that Franklin viewed property as deserving little protection from the state, it is clear that he felt that the state's claim on its citizens' property--in the form of taxation, for example--was justified. 26. JEREMY BENTHAM, A THEORY OF LEGISLATION 111 (4th ed. 1882). 27. Id. at 113. 28. See, e.g., THOMAS P. COOLEY, A TREATISE ON THE CONSTITUTIONAL LIMITATIONS WHICH REST UPON THE LEGISLATIVE POWER OF THE STATES OF THE AMERICAN UNION (3d ed. 1874). 29. OLIVER W. HOLMES JR., THE COMMON LAW 213 (35th prtg. 1943). Consistent with his view of law as protecting underlying interests, Holmes had no chapter entitled "property" in the book. Property is a mere legal category--a class of related legal theories. The above-quoted observation is taken from the section entitled "possession and ownership," which Holmes identified as the real set of interests that the common law sought to protect. 30. By way of illustration, Holmes wrote:
Id. at 220. Compare Morris R. Cohen, Property and Sovereignty, 13 CORNELL L.Q. 8 (1927). Professor Cohen, who otherwise held substantially different views from Holmes, described property rights in words similar to those used by Holmes: "Whatever technical definition of property we may prefer, we must recognize that a property right is a relation not between an owner and a thing, but between the owner and other individuals in reference to things. A right is always against one or more individuals." Id. at 12. 31. HOLMES, supra note 29, at 246. 32. Cohen, supra note 30, at 21. These claims were based on such things as hereditary status, divine right, feudal privileges, and legal immunities. 33. Id. 34. Id. at 22. 35. Hudson County Water Co. v. McCarter, 209 U.S. 349, 355 (1908). Holmes went on to identify the limits of property law as the "police power of the State." Cohen identified limitations in addition to the police power. See infra note 37. 36. For example, Professor Richard Ely wrote:
RICHARD T. ELY, PROPERTY AND CONTRACT IN THEIR RELATION TO THE DISTRIBUTION OF WEALTH (1914), at 136-37, reprinted in READINGS IN JURISPRUDENCE AND LEGAL PHILOSOPHY 10-17 (Morris R. Cohen & Felix Cohen eds., 1951). 37. Cohen, supra note 30, at 22-23. Cohen cited long-standing limitations inconsistent with an absolutist view of property, such as the 16th-century advent of the right of testamentary disposition of realty, the Rule Against Perpetuities, the nuisance and police powers, the condemnation power, and various lawful expropriations without compensation. Compare Walton H. Hamilton, Property--According to Locke, 41 YALE L.J. 864 (1932) (arguing that changed circumstances deprived Locke's argument of any force it might have had). "The property which Locke justified by natural right was an isolated possession of personal origin; the property which is the concern of constitutional law is an aggregate of rights inseparable from the giant collectivism of business." Id. at 879. 38. Joseph W. Singer, The Legal Rights Debate in Analytical Jurisprudence From Bentham to Hohfeld, WIS. L. REV. 975, 984 (1982). 39. Id. 40. Id. at 985. 41. Legal scholars during the period since Holmes have explored a broad range of ideas to reconcile property rights with conflicting rights. First came "legal process" scholarship, a branch of legal realism that sought to explain substantive law by understanding the legal procedures that enforced it. See WILLIAM TWINING, KARL LLEWELLYN AND THE REALIST MOVEMENT (1973). In 1964, Professor Charles Reich enlisted newly defined property rights in the service of social welfare. See Reich, supra note 6. Reich argued that government largess should be treated as private property with similar substantive and procedural protection. Only the procedural argument achieved success in the courts, however. See Goldberg v. Kelly, 397 U.S. 254 (1970). In the 1970s, the "law and economics" school attempted to apply neo-classical economics to the conflict, arguing that economic efficiency might hold the key to resolving legal disputes concerning property and constitutional limits. See, e.g., RICHARD A. POSNER, ECONOMIC ANALYSIS OF LAW (1973). Critical legal studies advocates challenged these efforts and argued that purported legal rules of decision are chiefly instruments for maintaining existing distributions of power. See ROBERTO M. UNGER, THE CRITICAL LEGAL STUDIES MOVEMENT (1986). Recently, a communitarian legal theory has emerged. Drawing from a rediscovered Jeffersonian tradition, this perspective regards the legitimacy of property rights and their entitlement to legal protection as primarily dependent on whether this protection tends to sustain the vitality of the community in which the rights are exercised. See, e.g., Anderson, supra note 25; DANIEL KEMMIS, COMMUNITY AND THE POLITICS OF PLACE (1992). Some of these trends are discussed and criticized in William W. Fisher III, The Development of Modern American Legal Theory and the Judicial Interpretation of the Bill of Rights, in A CULTURE OF RIGHTS: THE BILL OF RIGHTS IN PHILOSOPHY, POLITICS, AND LAW--1791 and 1991, at 307-18 (Michael J. Lacy & Knud Haakonssen eds., 1991). 42. See Lucas v. South Carolina Coastal Comm'n, 112 S. Ct. 2886, 2892-93, 22 ELR 21104, 21107 (1992) (majority); id., 112 S. Ct. at 2904, 22 ELR at 21112 (Kennedy, J., concurring); id., 112 S. Ct. at 2918, 22 ELR at 21120 (Stevens, J., dissenting) (each quoting from Holmes' opinion in Pennsylvania Coal v. Mahon, 260 U.S. 393 (1922)). 43. See generally S.F.C. MILSOM, HISTORICAL FOUNDATIONS OF THE COMMON LAW (2d ed. 1981). 44. CARL STEPHENSON, MEDIEVAL FEUDALISM 41-43 (1942). 45. Palmer, supra note 14, at 4. In addition to homage and fealty (ceremonial expressions of the personal bond), and military service (usually 40 days per year in Angevin England), the customary obligations consisted of the feudal incidents and aids. The incidents were: wardship (the lord's entitlement to the estate and its revenues during the minority of the tenant's heir); relief (payment to the lord upon the re-grant of land to an heir); and the requirement to obtain the lord's consent to marriage of the tenant's daughters. The aids were occasions on which the tenant was obliged to pay the lord a monetary contribution. In Angevin England, these occasions were: the knighting of the lord's eldest son; the marriage of the lord's eldest daughter; and the ransom of the lord from capture. The tenant also had a continuing obligation to provide hospitality to the lord and his entourage. STEPHENSON, supra note 44, at 24-30. 46. "The fee, the price of the man, was maintenance for life and provision for survivors: both his heir and his widow." Palmer, supra note 14, at 5. Hints of these origins survive in the terminology still used unthinkingly by modern property lawyers. 47. See generally MILSOM, supra note 43. 48. See Palmer, supra note 14, at 8-13. 49. Under the Compromise of 1153, a tenant in possession could remain a tenant for life, provided that he did not thereafter commit an offense warranting disseisin. Upon the incumbent's death, however, an outside claimant whose ancestor had been the tenant prior to the start of the war would be enfeoffed, rather than the incumbent's heir. The "writ of right patent" was the instrument with which the king could enforce the compromise against a reluctant lord. See id. at 9-11. 50. See 1 SOURCES OF ENGLISH CONSTITUTIONAL HISTORY 80-82 (Carl Stephenson & Frederick Marcham eds., rev. ed. 1972). 51. Essentially, this innovation limited the lords' ability to dispossess their deceased tenants' survivors in order to make grants to outsiders who might enhance the lords' military capacities--and thus their potential for belligerency against the king. See Palmer, supra note 14, at 13-17. 52. Id. at 19. The writs were purchased by claimants--sort of an expensive filing fee that enriched the king's treasury in addition to supporting the judicial establishment. The first "form book" appeared around 1188. See THE TREATISE ON THE LAWS AND CUSTOMS OF THE REALM OF ENGLAND COMMONLY CALLED GLANVILL (G.D.G. Hall ed., 1965). 53. Palmer, supra note 14, at 8. See also S.F.C. MILSOM, THE LEGAL FRAMEWORK OF ENGLISH FEUDALISM 155, 171 (1976). 54. During the 13th century, the categories recognized by the common law evolved into four free tenures, which remained subject to grant by the lord and to faithful performance of the tenant's obligations. See CORNELIUS J. MOYNIHAN, INTRODUCTION TO THE LAW OF REAL PROPERTY 9-12 (2d ed. 1988). The free tenures were: tenure by knight service (requiring military service and the feudal incidents and aids); serjeanty (requiring personal service to the lord); frankalmoin (involving lands granted to religious establishments who were then obliged to say masses or prayers); and free and common socage (fixed rental of lands). There were also unfree tenures, called copyhold tenures, which were customary lands held at the will of the lord and subject only to the lord's court. Copyhold tenures involved economic, but not feudal, obligations. They remained the lord's lands, but were worked by the tenant. As such, they could not be transferred without obtaining the lord's consent ("surrender and admittance") and compensating the lord (a "fine"). Id. at 14. 55. 1 GEORGE W. THOMPSON, COMMENTARIES ON THE MODERN LAW OF REAL PROPERTY § 34, at 152 (1964). 56. 18 Edw. I, ch. 1, reprinted in 1 SOURCES OF ENGLISH CONSTITUTIONAL HISTORY, supra note 50, at 175. 57. MOYNIHAN, supra note 54, at 18; THOMPSON, supra note 55, § 34, at 153. 58. In the early 14th century, for example, the Court of Chancery began to enforce uses--a form of secret trust that allowed one party to obtain the economic benefit of the estate, while another held the nominal title. This practice frequently evaded the lord's rights. In 1535, the Statute of Uses, 27 Hen. VIII, c. 10, abolished uses by effectively uniting title and use in the cestui que use--the beneficiary of the trust. 59. MOYNIHAN, supra note 54, at 20-21. 60. Statute 12, Charles II, ch. 24 (1660), cited in THOMPSON, supra note 55, § 35, at 154-55. In fact, other tenurial remnants survived until 1926. See id. § 36. See also MOYNIHAN, supra note 54, at 20-21. The 1922 Law of Property Act, 12 & 13 Geo. V, ch. 16, and the Property Act of 1925, 15 & 16 Geo. V., ch. 20, both effective in 1926, ended tenurial landholding. These acts abolished both the copyhold tenure and the remaining tenurial obligations attached to freeholdings. 61. "We have thus traced two competing and mutually inconsistent principles into our law. On the one hand is the conception of succession or privity; on the other, that of rights inhering in a thing." HOLMES, supra note 29, at 386. 62. MORTON J. HORWITZ, THE TRANSFORMATION OF AMERICAN LAW, 1780-1860, at 31 (1977). 63. Id. at 36. 64. Similarly, the law of servitudes--under which certain estates in land are burdened for the benefit of other estates--was designed to serve the ends of quiet enjoyment. English common law recognized four negative easements that could arise by prescription: the right to sunlight, flow of air, support to buildings, and noninterference with the flow of water in an artificial stream. Susan F. French, Towards a Modern Law of Servitudes: Reweaving the Ancient Strands, 55 S. CAL. L. REV. 1261 (1982). Although the English list was closed to further additions by the end of the 18th century, its flexibility was preserved in the United States. JESSE DUKEMINIER & JAMES KRIER, PROPERTY 872-75 (2d ed. 1988). American courts have not, for example, adopted the sunlight easement--the "ancient lights" doctrine, discussed infra notes 140-42 and accompanying text, but they have recognized others not among the four English negative easements. U.S. courts have also expanded the concept of equitable servitudes--express covenants imposing burdens on the estate, which apply to successive holders with notice, whether or not there is privity. See Uriel Reichman, Towards a Unified Concept of Servitudes, 55 S. CAL. L. REV. 1179, 1180 (1982). 65. See, e.g., JAMES W. ELY JR., THE GUARDIAN OF EVERY OTHER RIGHT: A CONSTITUTIONAL HISTORY OF PROPERTY RIGHTS 19-22 (1922). 66. See, e.g., Acts and Resolves of the Province of Massachusetts Bay 1692-93, ch. 23, reprinted in LAND USE 8-9 (Jacob Beuscher et al. eds., 2d ed. 1976). See also RATHKOPF'S THE LAW OF ZONING AND PLANNING § 101[2], at 1-7 (Edward Ziegler ed., 1992). 67. 2 PA. STAT. § 66, ch. 53, cited in DAVID L. CALLIES & ROBERT H. FREILICH, CASES AND MATERIALS ON LAND USE 3 (1986). 68. HORWITZ, supra note 62, at 32. 69. Exploitation of property interests that significantly interfered with the natural flow of water was actionable. See Merritt v. Parker, 1 Coxe L. Rep. 460, 463 (N.J. 1795) ("When a man purchases a piece of land through which a natural water-course flows, he has a right to make use of it in its natural state, but not to stop or divert it to the prejudice of another."). The emphasis on natural uses of land was bolstered by strict liability in tort for activities constituting a nuisance:
3 WILLIAM BLACKSTONE, COMMENTARIES *218 (1768). See also HORWITZ, supra note 62, at 32 ("Only the lowest common denominator of noninjurious activity could avoid a suit for damages."). 70. HORWITZ, supra note 62, at 32. 71. Id. 72. See, e.g., Cary v. Daniels, 49 Mass. (8 Met.) 466, 477 (1844) (The "proprietor who first erects his dam for such a purpose has a right to maintain it, as against the proprietors above and below; and to this extent, prior occupancy gives a prior title to such use."). 73. HORWITZ, supra note 62, at 33. 74. Id. at 35. 75. See ELY, supra note 65, at 6 (depicting the shifting nature of property rights to service the development of the United States). 76. See, e.g., Jackson v. Brownson, 7 Johns. 227, 232 (N.Y. 1810) (holding tenant farmer who cut down woods committed waste and forfeited estate). 77. 3 N. DANE, A GENERAL ABRIDGEMENT AND DIGEST OF AMERICAN LAW 214 (1824), cited in HORWITZ, supra note 62, at 55 n.115. The dissent in Jackson v. Brownson had argued that the law of waste was an anachronism not suited to the United States. 7 Johns. at 236. 78. HORWITZ, supra note 62, at 59. 79. See, e.g., Green v. Biddle, 21 U.S. (8 Wheat.) 1 (1823) (invalidating Kentucky legislature's remedial attempt as interfering with the obligation of contract). 80. By 1836, most states allowed purchasers to recover the cost of improvements they had made in good faith. Horwitz, supra note 62, at 62. 81. See generally Humbach, supra note 7 (nuisance law limitations on property rights); William L. Prosser, Private Action for Public Nuisance, 52 VA. L. REV. 997 (1966) (suits by individuals for public harms that result in particular damage). 82. See, e.g., Munn v. Illinois, 94 U.S. 113 (1877); Mugler v. Kansas, 123 U.S. 623 (1887); Hudson County Water Co. v. McCarter, 209 U.S. 349, 355 (1908). The police power is the inherent power of the state to act for the protection of the public welfare, and its reach is greater than the power to abate a nuisance. "The common law of nuisance is too narrow a confine for the exercise of regulatory power in a complex and interdependent society." Lucas v. South Carolina Coastal Council, 112 S. Ct. 2886, 2903, 22 ELR 21104, 21112 (1992) (Kennedy, J., concurring) (citing Goldblatt v. Town of Hempstead, 369 U.S. 590, 593 (1962)). 83. 61 Mass. (7 Cush.) 53 (1851). 84. Id. at 104. 85. 52 Mass. (11 Met.) 55 (1846). 86. Rather, Chief Justice Shaw wrote, the statute constituted:
87. Id. 88. The object of the statute was "to protect the harbor of Boston, by preserving the integrity of the beaches, and the natural embankments of sand and gravel by which it is bordered." Id. at 56. By way of illustration, the court wrote:
89. "The concept of the public welfare is broad and inconclusive.… The values it represents are spiritual as well as physical, aesthetic as well as monetary. It is within the power of the legislature to determine that the community should be beautiful as well as healthy, spacious as well as clean, well-balanced as well as carefully patrolled." Berman v. Parker, 348 U.S. 26, 33 (1954). 90. 272 U.S. 365 (1926). 91. "The law of nuisances … may be consulted, not for the purpose of controlling, but for the helpful aid of its analogies in the process of ascertaining the scope of the power." Id. at 387-88. 92. See supra note 9 and accompanying text. 93. THOMPSON, supra note 55, § 40, at 167-68. 94. Frank I. Michelman, Property as a Constitutional Right, 38 WASH. & LEE L. REV. 1097 (1981). 95. Id. at 1101 (quoting Board of Regents v. Roth, 408 U.S. 564, 577 (1972) (emphasis added)). 96. Id. (citation omitted). See also Hughes v. Washington, 389 U.S. 290, 296-97 (1967) (Stewart, J., concurring) ("For a State cannot be permitted to defeat the constitutional prohibition against taking property … by the simple device of asserting retroactively that the property it has taken never existed at all."). Michelman attempts to resolve the dilemma by suggesting that property does have a constitutional dimension. He argues that property should be seen as a "political right" connected in some way to settled expectations about one's "fair and effective participation in the constituted order." Michelman, supra note 94, at 1111-12. Compare JEREMY WALDRON, THE RIGHT TO PRIVATE PROPERTY (1988) (contending that private property derives from the right to autonomy, mastery, and full humanity). Neither scholar addresses the applicability of these rationales to property held by entities other than individuals. 97. See Joseph L. Sax, Property Rights and the Economy of Nature: Understanding Lucas v. South Carolina Coastal Council, 45 STAN. L. REV. 1433, 1448 (1993) (citing changes in 18th-and 19th-century property law). 98. See Cohen, supra note 30, at 9-10. 99. The common law viewed a lease as a conveyance of an estate in land, and hence the destruction of premises by fire did not extinguish the tenant's obligation to pay rent. See, e.g., Fowler v. Bott, 6 Mass. 63 (1809). The modern view, however, which is reflected in many statutes, is to excuse the tenant in some circumstances. See 3A GEORGE W. THOMPSON, COMMENTARIES ON THE MODERN LAW OF REAL PROPERTY § 1299, at 455-56 (1964). Of course, the lease itself may specify these contingencies so long as it is consistent with regulatory statutes. 100. See, e.g., Mathes v. Commissioner, 576 F.2d 70 (5th Cir. 1978), cert. denied, 440 U.S. 911 (1979). 101. See Connolly v. Pension Benefit Guar. Corp., 475 U.S. 211 (1986) (holding required payments upon withdrawal from pension plan not takings; pervasive regulation part of expectation). Accord Concrete Pipe & Prods. of Cal. v. Construction Laborers Pension Trust for S. Cal., 113 S. Ct. 2264 (1993). 102. As noted by Holmes, private owners may exercise their "natural powers" over property with protection from interference by others under most, but not all, circumstances. HOLMES, supra note 29, at 246. 103. See, e.g., Loretto, 458 U.S. 419, 435 (1982) ("The government does not simply take a single 'strand' from the 'bundle' of property rights; it chops through the bundle, taking a slice of every strand."). 104. 260 U.S. 22 (1922). Jackman was decided during the same term as Pennsylvania Coal v. Mahon, 260 U.S. 393 (1922). 105. Id. at 30. 106. Id. at 31 (citations omitted). Compare Loretto, 458 U.S. 419, 435 (1982) (finding New York law that required landlords to permit the installation of cable-television boxes on their property constituted a physical taking of the landlords' property). 107. "Property is more than the mere thing which a person owns. It is elementary that it includes the right to acquire, use, and dispose of it." Buchanan v. Warley, 245 U.S. 60, 74 (1917) (striking down Louisville segregation ordinance). 108. Justice Holmes wrote in Pennsylvania Coal that "government could hardly go on if to some extent values incident to property could not be diminished without paying for every … change in the general law." 260 U.S. 393, 413 (1922). 109. Distraint was the pledge of property in exchange for performance of an obligation, such as the duty to appear in an action. 3 WILLIAM BLACKSTONE, COMMENTARIES *231. 110. 1 WILLIAM BLACKSTONE, COMMENTARIES *300. See also Austin v. United States, 113 S. Ct. 2801 (1993). 111. This forfeiture of an estate was justified on the ground that property is a right derived from society that one loses by violating society's law. See 1 WILLIAM BLACKSTONE, COMMENTARIES *229; 4 WILLIAM BLACKSTONE, COMMENTARIES *382. See also Austin v. United States, 113 S. Ct. 2801 (1993). 112. The United States recognizes only statutory forfeiture. Statutory forfeitures are either punitive or remedial. Punitive forfeitures are intended to punish the wrongdoer and include such things as the seizure of premises on which illegal activity has occurred. Remedial forfeitures are meant to seize the instrumentalities of crime--guns, for example. See, e.g., United States v. One Assortment of 89 Firearms, 465 U.S. 354, 364 (1984). 113. The power is, however, subject to due process and Eighth Amendment limitations. See, e.g., United States v. James Daniel Good Real Property, 114 S. Ct. 492 (1993) (reversing ex-parte seizure of home under drug forfeiture laws on due process grounds); Austin, 113 S. Ct. at 2801 (1993) (Eighth Amendment). 114. See, e.g., Yee v. City of Escondido, 112 S. Ct. 1522 (1992) (holding rent-control law governing mobile homes does not physically take landlord's property); Block v. Hirsh, 256 U.S. 135 (1921) (Holmes, J.) (upholding statute that allowed holdover by tenant, except if landlord wanted to occupy the dwelling, as a temporary measure not requiring compensation). 115. ELY, supra note 65, at 33. 116. Massachusetts Bay Colony Ordinance, Body of Liberties (1641), cited in Lamprey v. Metcalf, 53 N.W. 1139, 1141 (Minn. 1893). 117. See Lamprey, 53 N.W. 1139 (Minn. 1893) (Owner of lakeshore property on nonnavigable lake owns submerged lands to the center of the lake; on navigable lake, the state holds waters and lake bed in its sovereign capacity "as trustee of the people, for public use."). 118. See, e.g., Luscher v. Reynolds, 56 P.2d 1158 (1936) (public has the right to use navigable inland lakes for boating, regardless of lake-bed ownership). 119. See Montana Coalition for Stream Access v. Curran, 682 P.2d 163 (Mont. 1984) (finding no taking even though public access includes limited and necessary use of private lands). "Under the public trust doctrine and the 1972 Montana Constitution, any surface waters that are capable of recreational use may be so used by the public without regard to streambed ownership or navigability for nonrecreational purposes." Id. at 171. However, the public's right to use privately owned dry land above high water marks is limited to portages. Id. at 172. Accord, Montana Coalition for Stream Access v. Hildreth, 684 P.2d 1088 (Mont. 1984). See also Galt v. Montana Dep't of Fish, Wildlife & Parks, 731 P.2d 912 (Mont. 1987) (identifying limits to the public right and invalidating legislation that guaranteed some nonessential uses). 120. State v. South Carolina Coastal Council, 346 S.E.2d 716, 16 ELR 21004 (1986) (finding Council's permit for a 660-acre impoundment project for private hunting ground, involving loss of 50 acres of wetlands, could not block off navigable waterway in absence of overriding public interest). 121. Borough of Neptune City v. Borough of Avon-by-the-Sea, 294 A.2d 47, 2 ELR 20519 (N.J. 1972) (municipally owned); Matthews v. Bay Head Improvement Ass'n, 471 A.2d 355 (N.J. 1984) (privately owned). But cf. Bell v. Town of Wells, 557 A.2d 168 (Me. 1989) (upholding challenge to state law giving the public the right to use intertidal private lands). 122. 462 P.2d 671 (Or. 1969). 123. The law of custom provides a basis for a community to enjoy access to private lands based on historical practice. Custom is akin to a prescriptive right under the common law, but it is a community right--not a personal right. See, e.g., Knowles v. Dow, 22 N.H. 387, 55 Am. Dec. 163 (1851) (upholding custom of hauling seaweed on another's private land and storing it there until use or sale). "Nor is [custom] unreasonable because it is prejudicial to the interests of a private man, if it be for the benefit of the commonwealth.…" Id. 22 N.H. at 404, 55 Am. Dec. at 165. See also Abbott v. Weekly, 83 Eng. Rep. 357 (K.B. 1665) (upholding custom to have public dance on plaintiff's property); Fitch v. Rawling, 126 Eng. Rep. 614 (C.P. 1795) (holding lawful games, sports, and pastimes by villagers in plaintiff's close a custom; finding "recreation" a public necessity for villagers). While American courts do not, the English courts require the customary access to be confined to a limited number of people, or residents of a given area. See Lew E. Delo, The English Doctrine of Custom in Oregon Property Law: State ex rel. Thornton v. Hay, 4 ENVTL. L. 383 (Spring 1974). 124. Thornton v. Hay, 462 P.2d 678. The court cited seven requirements necessary to establish a customary right: (1) antiquity; (2) continuity; (3) freedom from dispute; (4) reasonableness; (5) certainty; (6) obligation; and (7) consistency with other law. Id. at 677 (citing WILLIAM BLACKSTONE, COMMENTARIES *75-*78). 125. In Hay v. Bruno, 344 F. Supp. 286, 2 ELR 20383 (D. Or. 1972) a district court held that the Thornton decision did not violate the Fifth and Fourteenth Amendments, distinguishing Hughes v. Washington, 389 U.S. 290 (1967), supra note 96. In McDonald v. Halvorson, 780 P.2d 714 (Or. 1989), the Oregon Supreme Court held that the Thornton doctrine did not apply to a coastal freshwater pool that was not part of the dry-sand beach appurtenant to the ocean. 126. 854 P.2d 449 (Or. 1993), cert. denied, 62 U.S.L.W. 3621 (U.S. Mar. 21, 1994) (No. 93-496). 127. Id. at 456, citing Lucas v. South Carolina Coastal Council, 112 S. Ct. 2886, 2900, 22 ELR 21104, 21111 (1992). The lower court had distinguished Lucas: "[The Thornton doctrine] is an expression of state law that the purportedly taken property interest was not part of plaintiffs' estate to begin with. Accordingly, there was no taking within the meaning of the Oregon or United States Constitutions." Stevens v. City of Cannon Beach, 835 P.2d 942 (Or. Ct. App. 1992). 128. Stevens v. City of Cannon Beach, 854 P.2d 456 (Or. 1993). The court also held that the administrative rules and actions implementing the public right did not destroy all economic use of the property. Id. at 459-60. 129. See, e.g., City of Daytona Beach v. Tona-Rama, Inc., 294 So. 2d 73, 75-76 (Fla. 1974) (holding easement for public access over dry-sand beach may be acquired by prescription). 130. See, e.g., State v. Shack, 277 A.2d 369, 375 (1971) (upholding authority to "trespass" on private property for the purpose of providing legal services to residents of migrant camp as "invading no possessory right of the farmer-employer"); Prune Yard Shopping Center v. Robins, 447 U.S. 74, 82 (1980) (holding California constitutional provision that prevented shopping mall from excluding students collecting petition signatures not a Fourteenth Amendment "taking," even though the power to exclude others is "one of the essential sticks in the bundle of property rights"). These state law, property-rights cases are different from access cases litigated under the First Amendment, which have had varied results. See, e.g., Marsh v. Alabama, 326 U.S. 501 (1946) (upholding Jehovah's Witness' right to distribute literature in company town); Food Employees Local 590 v. Logan Valley Plaza, 391 U.S. 308 (1968) (upholding picketers' access to mall property), overruled by Hudgens v. NLRB, 424 U.S. 507 (1976) (holding that labor protesters could be excluded from shopping center); Lloyd Corp. v. Tanner, 407 U.S. 551 (1972) (holding that shopping mall need not allow war protesters to distribute information). 131. For the seminal article articulating the public trust doctrine, see Joseph L. Sax, The Public Trust Doctrine in Natural Resource Law: Effective Judicial Intervention, 68 MICH. L. REV. 471 (1970). See also The Public Trust Doctrine in Natural Resources Law and Management: A Symposium, 14 U.C. DAVIS L. REV. 181 (1980). For an excellent discussion of the doctrine and summary of the cases applying it, see David B. Hunter, An Ecological Perspective on Property: A Call for Judicial Protection of the Public's Interest in Environmentally Critical Resources, 12 HARV. ENVTL. L. REV. 311, 367-78 (1988). 132. 146 U.S. 387 (1892). 133. Justice Field wrote that the title to such lands was held in trust for the public so "that they may enjoy the navigation of the waters, carry on commerce over them, and have liberty of fishing therein freed from the obstruction or interferences of private parties." Id. at 452. This was no innovation, but a careful reading of the common law. Justice Field was no redistributionist. In Pollack v. Farmer's Loan & Trust Co., 157 U.S. 429, reh'g 158 U.S. 601 (1895) (striking down federal income tax), his concurring opinion characterized the income tax as an "assault on capital" and a "war of the poor against the rich." Id., 158 U.S. at 607. 134. See Ralph Johnson, Public Trust Protection for Stream Flows and Lake Levels, 14 U.C. DAVIS L. REV. 233, 244 (1980) (noting virtually exclusive use of the doctrine "to protect in-place uses of water"). 135. See, e.g., 1000 Friends of Oregon v. Division of State Lands, 611 P.2d 1177 (Or. 1980) (invalidating after-the-fact permit for dike across tidal slough as contrary to public interest in fisheries, navigation, and recreation); Arnold v. Mundy, 6 N.J.L. 1 (1821) (rejecting privatization of oyster beds and dismissing action in trespass where shoreline owner had planted oyster bed and another took the oysters). But see Commonwealth v. City of Newport News, 164 S.E. 689 (1932), in which Virginia brought a common-law action against a city to restrain destruction of a public oyster fishery by the city's discharge of untreated sewage. The Virginia Supreme Court held that legislative silence implied state acquiescence in the city's use of the waterway for disposal, and that such acquiescence did not violate public rights. Fishing, the court stated, is not part of the jus publicum, in contrast with the right to move goods and the right of navigation. Id. at 698. See also Darling v. City of Newport News, 96 S.E. 307 (1918) (holding sewage disposal a public right superior to oystering), aff'd, 249 U.S. 540 (1919). 136. Scranton v. Wheeler, 179 U.S. 141 (1900) (navigational servitude a preexisting limitation on private title). The navigational servitude is sometimes attributed to the interstate commerce clause of the U.S. Constitution, but it is more frequently interpreted with reference to English common-law doctrines. 137. The Federal Government [has] a dominant servitude which
United States v. Cherokee Nation of Okla., 480 U.S. 700, 704 (1987) (internal quotations and citations omitted). See also Zabel v. Tabb, 430 F.2d 199 (5th Cir. 1970) (holding navigational servitude bar to takings claim based on denial of permit), cert. denied, 401 U.S. 910 (1971). But cf., Kaiser Aetna v. United States, 444 U.S. 164, 10 ELR 20042 (1979) (private owner's reliance on federal government's expressed position when converting private waters to navigable waters renders post hoc federal assertion of navigational servitude a compensable taking). 138. See, e.g., Lewis Blue Point Oyster Cultivation Co. v. Briggs, 229 U.S. 82 (1913) (finding no taking where U.S. dredging activities destroyed oysters cultivated on privately held submerged lands in New York). See also Cherokee Nation of Okla., 480 U.S. at 700 (1987) (rejecting claim for destruction of Arkansas River gravel beds owned in fee simple by Cherokee Nation). 139. United States v. Sasser, 967 F.2d 993, 22 ELR 21188 (4th Cir. 1992) (upholding U.S. Army Corps of Engineers' order to remove barriers blocking boat access to old rice canals on South Carolina plantation), cert. denied, 113 S. Ct. 1644 (1993). See also Donnell v. United States, 834 F. Supp. 19 (D. Me. 1993) (finding no taking in Corps' revocation of plaintiffs' nationwide permit, which required plaintiffs to dismantle a portion of their wharf). 140. These were features of ownership that they had come to expect as a part of their quiet enjoyment of property. See discussion supra. 141. Ancient lights were acquired by prescription and are described in 3 WILLIAM BLACKSTONE, COMMENTARIES *217. See also Story v. Odin, 12 Mass. 157 (1815). 142. In Parker v. Foote, 19 Wend. 309 (N.Y. Sup. Ct. 1838), New York rejected the doctrine as inapplicable in the new and growing nation, finding the country too young, and its development too incomplete, for such prescriptive rights. See also Fountainebleau Hotel Corp. v. Forty-Five Twenty-Five, Inc., 114 So. 2d 357 (Fla. 1959) (recognizing no common-law easement of light and air). Interestingly, however, a substantial number of states have enacted, or adopted by common-law modification, prohibitions on "spite fences." Thus, although a neighbor has no right to have light and air unobstructed, construction of a fence for no reasonable purpose, or at an unreasonable height, may be enjoined as a nuisance. See generally 1A GEORGE W. THOMPSON, COMMENTARIES ON THE MODERN LAW OF REAL PROPERTY § 239, at 263-65 (1964). 143. See ELY, supra note 65, at 19-22. 144. Id. at 21 (citing colonial North Carolina law limiting interest charges to 6 percent). There are limitations, however, on the government's ability to capture interest accruing on private funds. See Webb's Fabulous Pharmacies, Inc. v. Beckwith, 449 U.S. 155 (1980) (holding as an unconstitutional taking a Florida statute declaring interest on funds deposited with a court in an interpleader to be public property). But cf., Washington Legal Found. v. Massachusetts Bar Found., 993 F.2d 962 (1st Cir. 1993) (rejecting takings challenge to state law requiring deposit of client trust funds into interest-bearing accounts and capturing the interest for public purposes). 145. The Supreme Court has held that rent control is valid if it allows fair and reasonable return on investment. Pennell v. City of San Jose, 485 U.S. 1 (1988). The rent-control scheme at issue in Pennell "represented a rational attempt to accommodate the conflicting interests of protecting tenants from burdensome rent increases while at the same time ensuring that landlords are guaranteed a fair return on their investment." Id. at 13. 146. See Munn v. Illinois, 94 U.S. 113 (1877) (upholding, against due process and commerce clause challenges, state regulation of rates chargeable by Chicago grain elevators). 147. See United States v. Central Eureka Mining Co., 357 U.S. 155 (1958) (holding wartime closure of privately owned and operated gold mines not a compensable taking). 148. See Welch v. Swasey, 214 U.S. 91 (1909) (upholding Boston building height ordinance); Village of Euclid v. Ambler Realty Co., 272 U.S. 365 (1926) (upholding general land use regulation). 149. See supra notes 104-06 and accompanying text. 150. SAMUEL T. DANA & SALLY K. FAIRFAX, FOREST AND RANGE POLICY: ITS DEVELOPMENT IN THE UNITED STATES 350 (2d ed. 1980) (citing 1681 law). 151. See, e.g., Marks v. Whitney, 491 P.2d 374, 2 ELR 20049 (Cal. 1971) (public trust burdens private title to tidelands); National Audubon Society v. Superior Court of Alpine County, 658 P.2d 709, 13 ELR 20272 (Cal. 1983) (Mono Lake) (public trust includes ecological values and landowners who purchase property subject to public trust cannot state takings claim), cert. denied, 464 U.S. 977 (1983). 152. 201 N.W.2d 761, 3 ELR 20167 (Wis. 1972). 153. Id., at 768, 3 ELR at 20168. 154. Id., at 768, 770, 3 ELR at 20168, 20169. 155. See Rowe v. Town of North Hampton, 553 A.2d 1331, 1335 (N.H. 1989) (denying takings claim for wetland; no taking occurs when the public policy advanced by a regulation is particularly important and the landowner's action would substantially change "the essential natural character of [the] land so as to use it for a purpose for which it was unsuited in its natural state and which injures the rights of others.") (quoting Just, 201 N.W.2d at 768); Sibson v. State, 336 A.2d 239, 5 ELR 20300 (N.H. 1975), overruled on other grounds by Burrows v. City of Keene, 432 A.2d 15, 21 (1981) (upholding denial of permit to fill four acres of salt marsh when owner had already profited from filling, developing, and selling two acres). 156. See Usdin v. New Jersey Dep't of Envtl. Protection, 414 A.2d 280 (N.J. Super. Ct. Law Div. 1980), aff'd, 430 A.2d 949 (N.J. Super. Ct. App. Div. 1981) (denying takings claim for wetlands and quoting Just). 157. See Rowe, 553 A.2d at 1336 (stating wetland permit denial "did not prevent the plaintiff from maintaining current uses of the property, but rather prevented a major change in the wetland for speculative benefit"). See also Sibson, 336 A.2d at 243 (stating denial of permit to fill salt marsh foreclosed only an opportunity to seek a "speculative profit," but not a protected interest under the Fourteenth Amendment). 158. See, e.g., Rogin v. Bensalem Township, 616 F.2d 680 (3d Cir. 1980) (affirming dismissal of developer's takings claim where township down-zoned site from 557 to 200 units after developer had constructed 106 units and completed common improvements for the entire development), cert. denied, 450 U.S. 1029 (1981). 159. 370 P.2d 342 (Cal. 1962). 160. Id. at 352. 161. See, e.g., Andrus v. Allard, 444 U.S. 51, 9 ELR 20791 (1979) (finding no taking, even though prohibition on sale of eagle parts and feathers stripped personalty of most economic value, because possession and other important rights retained). 162. See, e.g., Hudson County Water Co. v. McCarter, 209 U.S. 349 (1908) (Holmes, J.) (upholding a New Jersey law prohibiting diversion of water from Passaic River for sale out-of-state). The Supreme Court found the public interest in availability of the water trumped any claim by the water company of an absolute property right as riparian owner:
Id. at 356. In Sporhase v. Nebraska, 458 U.S. 941, 950-51, 12 ELR 20749 (1982) (invalidating on commerce clause grounds a Nebraska statute that conditioned approval of permits for the interstate transport of groundwater on reciprocity with the destination state), the Supreme Court distinguished and declined to follow Hudson County Water Co. with respect to its resolution of the interstate commerce issue. However, the state's authority to restrict conveyances for public purposes was not at issue. 163. "Land and family interest have been too closely connected to sacrifice the former completely to pure individualism." Cohen, supra note 30, at 23. 164. Randall v. Krieger, 90 U.S. 137, 148 (1874). 165. See LAWRENCE M. FRIEDMAN, A HISTORY OF AMERICAN LAW 186 (1973); MARYLYNN SALMON, WOMEN AND THE LAW OF PROPERTY IN EARLY AMERICA (1986). Mississippi passed the first remedial law, commonly known as "Married Women's Property Acts," in 1839. The Supreme Court held that the acts did not result in a taking of the husband's property. Warburton v. White, 176 U.S. 484 (1899). 166. 16A AM. JUR. 2D ConstitutionalLaw § 703 (1979). 167. 860 S.W.2d 280 (Ky. 1993), cert. denied sub nom., Harding v. Ward, 62 U.S.L.W. 3588 (U.S. Mar. 7, 1994) (No. 93-1049). 168. This instrument conveyed the coal beneath a tract of land. Kentucky courts had construed general words of conveyance and waivers of damages contained in such deeds as including the right to extract the coal by strip mining the land--even if the deed had been executed prior to the advent of strip mining. This typically destroyed the value of the surface estate. See Akers v. Baldwin, 736 S.W.2d 294 (Ky. 1987). 169. Shelley v. Kraemer, 334 U.S. 1 (1948); Hurd v. Hodge, 334 U.S. 24 (1948) (companion case to Shelley); Evans v. Abney, 396 U.S. 435 (1970) (invalidating racially restrictive trust for park land). 170. A state constitutional provision that prohibited state or local laws from interfering with "the right of any person to decline to sell, lease or rent [real] property to such person or persons as he, in his absolute discretion chooses" was struck down by the Supreme Court in Reitman v. Mulkey, 387 U.S. 369, 371 (1967). See also Jones v. Mayer, 392 U.S. 409 (1968) (holding Civil Rights Act bar to private acts of housing discrimination). State fair housing laws--and decisions upholding their validity--provide a profound illustration of the limitations that can be placed on private owners' refusal to sell or lease their property. See, e.g., Beech Grove Inv. Co. v. Civil Rights Comm., 157 N.W.2d 213, 228 (Mich. 1968) ("There is a civil right to private housing both at common law and under the 1963 Michigan Constitution."); Burks v. Poppy Constr. Co., 370 P.2d 313, 317 (Cal. 1962) ("under the police power reasonable restrictions may be placed upon … the use of any property"); Colorado Anti-Discrimination Comm. v. Case, 380 P.2d 34, 41 (Colo. 1963) (While "there are 'essential attributes of property which cannot be unreasonably infringed upon by legislative action … there are no absolutes in these rights … [and they] are subject to regulation by a proper exercise of the police power of the state."). The Case court also ruled that the law at issue did not effect an uncompensated taking in violation of the Fourteenth Amendment, because the seller remained free to withdraw the property for sale from the market. Id. at 42. See also Jones v. Haridor Realty Corp., 181 A.2d 481, 484 (N.J. 1962) (While "the right to acquire, own and dispose of real property" is protected by the Constitution, "the private right is not absolute … [and] is subject to the reasonable exercise of the police power."). 171. 32 Hen. VIII, c. 1. 172. See MOYNIHAN, supra note 54. 173. At common law, a freehold contingent remainder that did not vest at, or before the termination of, the previous freehold estate was destroyed. See id. at 133-34. For example: A to B for life, then to the heirs of C. If B dies before C has heirs, the land reverts to A in fee simple, even if C later has heirs. 174. For example, at the urging of Thomas Jefferson, Virginia abolished the estate in fee tail--a freehold estate inheritable by the landholder's issue and their descendants--during its 1776 legislative session. In 1285, the Statute De Donis Conditionalibus, 13 Edw. I, c. 1, had created the estate in fee tail, which then became a fixture of English property law and an impediment to alienability and devise by will. The 1285 Statute was itself intended to be remedial--it overruled a common-law doctrine that converted a gift to "A and his heirs" to a fee simple interest in A upon the birth of heirs. 175. See, e.g., Hodel v. Irving, 481 U.S. 704 (1987). The U.S. Supreme Court considered a takings challenge under a 1983 law that abolished descent or devise of fractional interests in certain Indian lands, requiring their reversion to the tribe. In a murky decision involving due process and takings analysis, the Court struck down the law as over-inclusive, since it would prevent some inheritances that did not conflict with the law's underlying purpose of consolidating ownership of Indian lands. The Court found, moreover, that the law was not saved by the fact that the property retained value during the life of the owner and could be conveyed inter vivos. 176. Alison Reiser, Ecological Preservation as a Public Property Right: An Emerging Doctrine in Search of a Theory, 15 HARV. ENVTL. L. REV. 393, 424 (1991). 177. See Andrea L. Peterson, The Takings Clause: In Search of Underlying Principles--Part I--A Critique of Current Takings Clause Doctrine, 77 CAL. L. REV. 1301, 1306-07 (1989). "The underlying consistency of the [Supreme] Court's holdings suggests that the Justices are ultimately deciding takings cases by relying on their sense of when fairness requires the payment of compensation, even though the Court's current takings tests do not directly address the fairness issue." Id. at 1342. See also Penn Cent. Transp. Co. v. City of New York, 438 U.S. 104, 124, 8 ELR 20528, 20533 (1978) (court must determine "when 'justice and fairness' require that economic injuries caused by public action be compensated by the government"). 178. See Lynda Butler, State Environmental Programs: A Study in Political Influence and Regulatory Failure, 31 WM. & MARY L. REV. 823, 842-44 (1990).
Id. at 843. Butler further notes that in the environmental area, private parties may not even be aware of the external costs of their uses. "This imperfect information may explain their continued adherence to the absolutist view, which seems to assume that private uses have few, if any, spillover effects on third parties." Id. 179. See, e.g., 3 WILLIAM BLACKSTONE, COMMENTARIES *217 ("It is incumbent upon him to find some other place to do that act, where it will be less offensive."). 180. Contrary to the "communitarian" approach to property rights issues, see supra note 41, a property-based "libertarian" analysis may be more useful. Environmentalists arguably may be the true libertarians, for they demand that every property owner bear both the costs and benefits of his or her own actions. 181. "Through land use regulation, government has the opportunity to correct some of the imperfections of the marketplace in the environmental area.… In evaluating takings challenges, then, the courts need to recognize the existence of the market failure and the desirability of corrective government action." Butler, supra note 178, at 843-44. 182. Louisville & Nashville R.R. Co. v. Barber Asphalt Paving Co., 197 U.S. 430 (1905). 183. It is important for this court to avoid extracting from
184. See Penn Cent. Transp. Co. v. City of New York, 438 U.S. 104, 8 ELR 20528 (1978). "It is, of course, true that the Landmarks Law has a more severe impact on some landowners than on others, but that in itself does not mean that the law effects a 'taking.' Legislation designed to promote the general welfare commonly burdens some more than others." Id., 438 U.S. at 133, 8 ELR at 20535. See also Florida Rock Indus. v. United States, No. 91-5156, slip op. at 25 (Fed. Cir. Mar. 11, 1994): "When government acts as the intermediary between private interests to provide a mutually beneficial environment from which all benefit and in which all can thrive, the shared diminution of free choice that results may not rise to the level of constitutionally required compensation." 185. 485 A.2d 287 (N.H. 1984). 186. Id. at 291. The affected land had been purchased after the restrictive statute's enactment. Id. at 292. 187. 399 So. 2d 1374, 11 ELR 20992 (Fla. 1981), cert. denied, 454 U.S. 1083 (1982). 188. Id., 399 So. 2d at 1382, 11 ELR at 20995. 189. Id. See also Deltona Corp. v United States, 657 F.2d 1184, 1193 (Ct. Cl. 1981) (noting that return on real estate investment is speculative and may be affected by government regulation, which can be anticipated), cert. denied, 455 U.S. 1017 (1982); Rivervale Realty Co. v. Town of Orangetown, 816 F. Supp. 937, 947-48 (S.D.N.Y. 1993) (holding down-zoning from one-acre to two-acre minimum lot size not a taking and noting that the judicial system is not intended "to shield litigants from the risks of doing business"). 190. "[A] focus on reasonable return would distinguish between property owners on the basis of the amount of their investments in similar properties … favoring those who paid more over those who paid less for the investments.… Neither the case law nor common sense supports [this approach]." Park Ave. Tower Assocs. v. New York, 746 F.2d 135, 140 (2d Cir. 1984) (rejecting claim based on down-zoning of urban land), cert. denied, 470 U.S. 1087 (1984). See also Haas v. San Francisco, 605 F.2d 1117, 1121 (9th Cir. 1979) (stating that plaintiff cannot "transform a regulation into a taking by recharacterizing the diminution of the value of its property as an inability to obtain a favorable return on its investment"), cert. denied, 445 U.S. 928 (1980). 191. See, e.g., Maine Land Use Regulation Comm'n v. White, 521 A.2d 710, 17 ELR 20691 (Me. 1987) (denying claim where property designated as deer yard was undevelopable and plaintiffs had purchased with notice of this status). See also Claridge v. New Hampshire Wetlands Board, 485 A.2d 287, 292 (N.H. 1984) (denying claim of plaintiff who took with notice that "the property was subject to state wetlands statutes"); M&J Coal Co. v. United States, No. 92-266 L, slip op. at 11 (Cl. Ct. Jan. 28, 1994) (denying claim where "an existing law or regulation" restricted mining subsidence "at the time the claimant took [title to the] property"). 192. See, e.g., Lovequist v. Conservation Comm'n, 393 N.E.2d 858, 9 ELR 20730 (Mass. 1979) (finding no taking where landowner denied permit for road on 26-acre island for housing development and existing causeway allowed one house on island and without risk of saltwater intrusion posed by landowner's plan). Cf., Gil v. Inland Wetlands and Watercourses Agency, 593 A.2d 1368 (Conn. 1991) (denying takings claim because plaintiff's plans were entitled to no particular deference and other value remained). The court in Gil rejected the state's contention that one who purchases property with "a reasonable expectation of residential or commercial development" suffers no taking where a regulation "allow[s] him to use his land only in its natural state without any economically viable alternative use," id. at 1373-74, essentially declining to follow the analysis in Just v. Marinette County, 201 N.W.2d 761, 3 ELR 20167 (Wis. 1972). See supra notes 152-57 and accompanying text. Nevertheless, the court denied compensation to the plaintiff, who wanted to build a mansion on a wetland, describing plaintiff's plans as "exceedingly grandiose." Gil, 593 A.2d at 1375. 193. DeFeo v. Sill, 810 F. Supp. 648, 657 (E.D. Pa. 1993) (dismissing complaint by sewage treatment operator denied new customer hook-ups and expansion of operation). 194. See, e.g., Southview Assocs., Ltd. v. Bongartz, 980 F.2d 84, 23 ELR 20132 (2d Cir. 1992), cert. denied sub nom., Southview Assocs., Ltd. v. Individual Members of Vt. Envtl. Bd., 113 S. Ct. 1586 (1993). A land developer purchased 88 acres of undeveloped land in Vermont for $ 225,000 to build a 78-lot residential development with roads and a sewage system. The developer later redesigned the development to include 33 units on 23 acres, with the remaining land to be designated open space due to limited sewage disposal capacity. The developer applied for a land use permit pursuant to Vermont Act 250. The permit was denied because a sizeable portion of the parcel contained a deer yard--necessary winter habitat for white-tail deer. After the Vermont Supreme Court affirmed the permit denial, the developer filed suit in federal court. The U.S. Court of Appeals for the Second Circuit found no physical taking, and held the developer's other claims unripe. "The Board's rejection of Southview's 33-unit subdivision proposal in no way precludes Southview from submitting another proposal, and it is 'not clear whether the [Board will] deny approval for all uses that would enable the plaintiffs to derive economic benefit from the property.'" Id., 980 F.2d at 98, 23 ELR at 20139 (quoting Williamson County Regional Planning Comm'n v. Hamilton Bank, 473 U.S. 172, 187 (1985)). 195. See Mock v. Department of Envtl. Resources, 623 A.2d 940, 23 ELR 21290 (Pa. Commw. Ct. 1993) (holding denial of wetland fill permit for garage not a taking, because permit might be granted for other conceivable uses). See also Plantation Landing Resort, Inc. v. United States, 30 Cl. Ct. 63 (1993) (holding that the mere failure of plaintiff and U.S. Army Corps of Engineers to agree on a particular level of wetland mitigation as a condition of issuing a permit not a denial of all economically beneficial or productive use of the land). 196. For example, the federal government's closure of areas of Florida Bay that had always been open to commercial fishing was readily upheld against a Fifth Amendment takings claim by the fishermen whose livelihood depended on the Bay. The courts carefully examined and rejected the claimed property rights. Organized Fishermen of Fla. v. Watt, 590 F. Supp. 805, 14 ELR 20917 (S.D. Fla. 1984), aff'd sub nom., Organized Fishermen of Fla. v. Hodel, 775 F.2d 1544, 16 ELR 20053 (11th Cir. 1985), cert. denied, 476 U.S. 1169 (1986). 197. See supra note 106 and accompanying text. 198. See, e.g., United States v. Willow River Power Co., 324 U.S. 499 (1945) (denying compensation to power company where government dam raised the water level of a navigable stream, reducing the operating head of hydroelectric plant by three feet). 199. Conflicts involving historic preservation are an exception, but they share with the rural land use conflicts the characteristic that the governmental action at issue has been taken to restrain innovation--that is, to keep things the way they are. 200. See, e.g., United States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 16 ELR 20086 (1985) (rejecting facial takings challenge to U.S. Army Corps of Engineers' jurisdiction over wetlands); Deltona Corp. v. United States, 657 F.2d 1184, 11 ELR 20905 (Ct. Cl. 1981) (rejecting takings claim based on permit denial), cert. denied, 455 U.S. 1017 (1982); Loveladies Harbor, Inc. v. United States, 21 Cl. Ct. 153, 20 ELR 21207 (1990) (holding wetlands permit denial a taking), appeal docketed, No. 91-5050 (Fed. Cir. Feb. 15, 1991); Tabb Lakes, Inc. v. United States, 26 Cl. Ct. 13344, 23 ELR 20104 (1992) (permit denial not a taking), aff'd, 10 F.3d 796, 24 ELR 20169 (Fed. Cir. 1993); Mock v. Department of Envtl. Resources, 623 A.2d 940, 23 ELR 21290 (Pa. Commw. Ct. 1993) (permit denial not a taking). 201. See, e.g., Keystone Bituminous Coal Ass'n v. De Benedictus, 480 U.S. 470, 17 ELR 20440 (1987) (rejecting takings claim based on Pennsylvania law restricting coal mining subsidence); Hodel v. Virginia Surface Mining & Reclamation Ass'n, 452 U.S. 264, 11 ELR 20569 (1981) (rejecting facial Fifth Amendment challenge to Surface Mining Control and Reclamation Act (SMCRA)); Goldblatt v. Town of Hempstead, 369 U.S. 590 (1962) (rejecting takings claim to ordinance limiting excavation of gravel pit); Pennsylvania Coal v. Mahon, 260 U.S. 393 (1922) (finding taking in facial challenge to Pennsylvania law restricting coal mining subsidence); Whitney Benefits, Inc. v. United States, 926 F.2d 1169, 21 ELR 20806 (Fed. Cir. 1991) (finding statutory taking of coal mining property by enactment of SMCRA), cert. denied, 498 U.S. 962 (1991); M&J Coal Co. v. United States, No. 92-266 L (Cl. Ct. Jan. 28, 1994) (upholding against a takings claim orders requiring protection of structures from subsidence); Florida Rock Indus. v. United States, 21 Cl. Ct. 161, 20 ELR 21201 (1990) (finding taking in claim based on denial of wetland permit for mining), vacated and remanded, No. 91-5156 (Fed. Cir. Mar. 11, 1994); Bernardsville Quarry, Inc. v. Borough of Bernardsville, 608 A.2d 1377 (N.J. 1992) (rejecting takings claim to ordinance limiting depth of quarry operation); Consolidated Rock Prods. Co. v. Los Angeles, 370 P.2d 342 (Cal. 1962) (rejecting takings challenge to zoning that prohibited gravel mining). 202. See, e.g., Nollan v. California Coastal Comm'n, 483 U.S. 825, 17 ELR 20918 (1987) (invalidating condition on building permit as a taking); Lucas v. South Carolina Coastal Council, 112 S. Ct. 2886, 22 ELR 21104 (1992) (remanding for consideration of takings impact of South Carolina's Beachfront Management Act); Esposito v. South Carolina Coastal Council, 939 F.2d 165, 21 ELR 21249 (4th Cir. 1991) (rejecting facial takings challenge to South Carolina's Beachfront Management Act), cert. denied, 112 S. Ct. 3027 (1992). 203. See, e.g., First English Evangelical Lutheran Church of Glendale v. County of Los Angeles, 482 U.S. 304, 17 ELR 20787 (1987) (finding possible temporary taking in denial of permit to rebuild); Turner v. County of Del Norte, 101 Cal. Rptr. 93 (1972) (upholding rezoning of floodplain that forbade new construction); S. Kemble Fischer Realty Trust v. Board of Appeals, 402 N.E.2d 100 (Mass. 1980) (finding no taking in denial of permits to build on flood plain, because the land could be used to fulfill minimum-acreage zoning requirements for upland lots), cert. denied, 499 U.S. 1011 (1980). 204. See, e.g., Penn Cent. Transp. Co. v. City of New York, 438 U.S. 104, 8 ELR 20528 (1978) (historical designation not a taking); United Artists' Theater Circuit v. City of Philadelphia, 635 A.2d 612 (Pa. 1993) (historical designation not a taking under state constitution). 205. See, e.g., Southview Assoc., Ltd. v. Bongartz, 980 F.2d 84, 23 ELR 20132 (2d Cir. 1992) (rejecting takings challenge as applied to Vermont's land use planning law known as "Act 250"), cert. denied sub nom., Southview Assocs., Ltd. v. Individual Members of Vt. Envtl. Bd., 113 S. Ct. 1586 (1993). The Southview v. Bongartz decision is discussed supra note 194. 206. See, e.g., Perley v. North Carolina, 249 U.S. 510 (1919) (rejecting takings challenge to state law that required supervised burning of timber slash on private land within 400 feet of a public watershed in order to prevent fire); Washington v. Dexter, 202 P.2d 906 (Wash. 1949) (upholding state forest practices act), aff'd mem., 338 U.S. 863 (1949). 207. There are no reported takings decisions on land use restrictions involving the Endangered Species Act, 16 U.S.C. §§ 1531-1544, ELR STAT. ESA §§ 2-12, 15, 17-18. This may result, in part, from fact that many of the Act's provisions apply only to federal activities--except for the prohibition on "taking" listed species, which applies to any person. But see Palila v. Hawaii Dep't of Land and Natural Resources, 639 F.2d 495, 11 ELR 20446 (9th Cir. 1981) (holding state's failure to remove feral sheep and goats from state lands "takes" endangered bird by destroying its habitat). It may also reflect the U.S. Fish & Wildlife Service's somewhat minimal implementation of the habitat-protection measures authorized under the Act. See Oliver Houck, The Endangered Species Act and Its Implementation by the U.S. Departments of Interior and Commerce, 64 U. COLO. L. REV. 277 (1993). The Ninth Circuit has denied compensation to a rancher whose sheep were eaten by a protected grizzly bear. Christy v. Hodel, 857 F.2d 1324, 18 ELR 21430 (9th Cir. 1988), cert. denied sub nom., Christy v. Lujan, 490 U.S. 1114 (1989). The situation in Christy v. Hodel plainly differs from the imposition of land use restrictions, because the rancher was not prevented from grazing sheep or protecting them in ways that did not "take" grizzly bears. See also Moerman v. California, 21 Cal. Rptr. 2d 329 (1993) (holding no right to compensation for crops eaten by Tule elk relocated by state nearby to plaintiff's land), petition for cert. filed, 62 U.S.L.W. 3511 (U.S. Jan. 18, 1994) (No. 93-1171). 208. But see Rybachek v. United States, 23 Cl. Ct. 222 (1991) (denying government motion to dismiss gold miners' claim that Federal Water Pollution Control Act effluent limitations had rendered their gold mine economically valueless). 209. This form of protection differs from nuisance law, which has been used even to enjoin a variety of activities that preceded the residents asserting the claim--for example, the cemetery conflicts of the 19th century, as well as 20th-century conflicts over brickyards, quarries, and slaughterhouses. See, e.g., Coates v. City of New York, 7 Cow. 585 (N.Y. 1827) (upholding ban on continued use of cemetery); Laurel Hill Cemetery v. San Francisco, 216 U.S. 358 (1910) (upholding cemetery ban); Hadacheck v. Sebastian, 239 U.S. 394 (1915) (rejecting takings challenge to closure of brickyard). 210. 112 S. Ct. 2886, 22 ELR 21104 (1992). 211. Beachfront Management Act, S.C. CODE ANN. § 48-39-10 to 48-39-360 (Supp. 1988)., 212. This is why the courts' case-by-case approach, which has so frustrated commentators and litigants alike, may be exactly right. The definition of the property interests at stake varies with the factors affecting the need to maintain property value and to provide for quiet enjoyment of other users. 213. STEWART L. UDALL, THE QUIET CRISIS AND THE NEXT GENERATION xviii (1988). 24 ELR 10231 | Environmental Law Reporter | copyright © 1994 | All rights reserved |