Property Rights, the Market, and Environmental Change in 20th Century America

Eric T. Freyfogle

The author is the Max L. Rowe Professor of Law, University of Illinois.

The economic success of the United States over the past century has prompted observers around the world to look to it for lessons on stimulating growth. Compared with many countries, the United States is plainly doing something right in terms of fostering the energies of its people. One cause of U.S. success has been the fertile land of central North America, and no study can overlook that unearned natural blessing. Still, American culture and its many institutions have played chief roles in the nation's cornucopia. Somewhere in the American story are useful lessons, however hard they might be to find and transport.

One American institution that has rightly drawn attention is the system of private property, particularly the private ownership of land. Economic enterprises commonly take place on land and entail the mixing of labor and capital with land. Much land is used directly to produce food, fiber, and minerals; other lands become sites for enterprises less dependent on a land parcel's particular natural features. In all cases, investment is needed for economic gains to flow. Both economic theory and common sense give guidance on what it takes to stimulate such investments in land. One requirement is that people have secure land tenure. Mine shafts will not be dug, nor office buildings constructed, when entrepreneurs risk losing their investments because of unstable property rights. Another requirement, less necessary but still important, is the ability to transfer property freely. People are more likely to invest when they can exit an enterprise by selling to others. Free transferability also facilitates the shift of assets to their mostly highly valued uses. When property is easily transferred, markets soon develop, and assets in time move to owners able to use them for the greatest gain.

These familiar points sometimes lead observers to conclude that property rights best promote growth when they are (i) legally secure against interference, particularly governmental interference, (ii) clearly defined, so that people know who owns what, and (iii) readily transferable. As some see it, the more that a property-rights regime reflects these principles, the more growth it stimulates. Best of all is a system in which everything is privately owned and transferable. Then, the market's reach is complete and all resources can flow to their highest valued uses.

In this era of transition for so many countries it is pertinent to ask: Do these characteristics describe property rights in the United States, particularly landed property rights? Would a property rights regime based on these principles help foster elsewhere the kind of economic success the United States has enjoyed? And what effects on the environment would such a regime likely produce?

Questions like these are difficult to answer. Elementary economic models produce answers that are clear and simple, but models operate only by reducing and portraying crudely a vast complexity. In the case of landed property rights, it turns out, the American story is far too nuanced and contradictory to capture adequately with this model, or any other simple one. The United States has long embraced a market economy, and that market has had much to do with the nation's economic success. Moreover, the market's reach extends to nature, and property rights are tailored in part to meet market needs. Yet the economic success of the United States has also come from quite different cultural tendencies and pressures. Markets in land and natural resources are checked in many ways, and nonmarket factors play key roles in the definition and allocation of landed property rights. Considered as a whole, the U.S. regime of property rights deviates markedly and increasingly from the simple vision of land as a secure, clearly defined, transferable commodity, vested in a single private owner. At one point in its history (the late 19th century) the United States seemed headed toward this approach. But the shortcomings of this approach soon became apparent, including the environmental degradation it unleashed, and ownership norms were recast considerably in response.

Over the past century, U.S. laws and regulations have increasingly re-embedded property rights in a communal order, aimed in important part at protecting the natural environment. Property law continues to recognize and protect individual rights, as it has for generations, but it recognizes other aims as well, and constraints on the market are pervasive. Aggregate calculations are hard to undertake, yet plentiful evidence suggests that these constraints have served not to contain economic growth, but to help fuel it, both by correcting the market's flaws in pricing and allocation and by fostering the kind of trust, social cohesiveness, and civic stability that any market needs to work well. In the ongoing drama of private property in America, the market is only one of the lead characters.

The thesis of this Dialogue stems from a form of macroanalysis that is engaged in only with trepidation, for it necessarily entails generalizations painted with a broad brush. Generalizations obscure details and inevitably emphasize a few aspects of life at the expense of others. Landed property rights in the United States have always been characterized by contradictory impulses—between individual autonomy and community wants, for instance; between the protection of existing uses and the stimulation of new ones; and between organic, status rules aimed at social cohesion and contract rules aimed at maximizing flexibility. Beset with such tensions, American property law defies easy summary.

[32 ELR 10255]

Yet treacherous though they are, generalizations have their place, if only to qualify simple models that distort even more the complex, unfolding story of landed property rights in the United States. Private property in America has long been a battleground of conflicting interests, a center of power struggles on a variety of social and spatial scales, from the individual family and neighborhood to the watershed, the bioregion, the state economy and polity, and upward to the nation state and global community. Americans might stand united in their fondness for private property over socialist alternatives; but they have argued ceaselessly about what ownership ought to mean. And from these arguments has come a complex set of ownership norms, continually evolving in response to changing values and circumstances.

Nineteenth-Century Trends

To understand landed property rights at the beginning of the 21st century it is useful to back up, and review briefly some of the experiences and trends that led the United States a century ago to increase constraints on the market's operation.

Expanding the Market

Many of the trends affecting landed property rights during the 19th century were ones with broad social and economic impacts. One dominant trend, permeating many aspects of life, was the continued expansion of the market's domain. Labor was increasingly performed and goods increasingly produced not for direct use and consumption, but for sale in the market. Agricultural production became more specialized, increasingly focusing on staple crops and responding to market prices. Particularly in settled areas and cities, transactions more often took the form of monetary deals rather than exchanges or gifts. As the market expanded, local economies became linked into ever larger ones, and transactions commonly occurred among people who knew each other only in the market.

As the market waxed in importance, it both reflected and propelled the evolving ways that people perceived the natural world and valued it. Nature became, more than ever, a fragmented collection of market commodities rather than an organic whole. Valuation increasingly was set by market forces, with an item gaining value because a person could sell it for cash or use it to produce marketable things. This sense of value was hardly new, but it gained strength during the era, pushing to the side older notions of value that paid attention to the land's direct usefulness to the owner and to the status and political relationships centered on land. With this accentuated market emphasis, land was increasingly viewed as an income-generating asset—something that helped an owner succeed in the market—rather than a source of independence that allowed an owner to live apart from the communal order. By no means completely but nonetheless perceptibly, land became a source for generating wealth and it was the generated wealth itself, not the land, that provided independence and perpetuated a family's fortune.

Trends in landed property rights were part and parcel of the nation's waxing enthusiasm for economic development—for plowing fields, sinking mines, building factories, and constructing various means of transport, communication, and trade. In several critical ways, law and government affirmatively aided this enthusiastic transformation of the landscape: by vesting broad legal powers in corporations and other large-scale organizations; by overtly subsidizing costly and risky ventures; and by pruning liability rules and other laws that either added costs to large-scale enterprises or that unduly restricted contractual freedom. In the property realm, land was surveyed as quickly as funding and sectional politics would allow, and land-title recording systems were instituted everywhere to make titles more secure and to enable buyers and sellers to know who owned what—a critical step in the development of land markets. In many small ways, the law struck down long-term restraints on the alienation of land and otherwise cooperated in the push to make nature a more readily marketable commodity.

When the 19th century began, most land not yet in private hands was owned by the federal government. Throughout the century, the government's policy toward that land was guided by a single aim: to get it into the hands of productive users as quickly as possible. Disputes about public lands policy were heated and endless, decade upon decade, particularly when sectional politics intervened. But arguments were chiefly about who would gain from land distributions and by how much, not about disposition as the overall goal. In the case of Native American lands, treaties and reservation policies brought more and more land into the hands of white settlers.

Property Rights and the Intensification of Land Uses

One vital shift in this release of entrepreneurial energy (as historian Willard Hurst would call it) took place in the legal definition of what it meant to own land. This was probably the most important shift that occurred in property law and it requires careful study, not simply because of its importance at the time, but because so much change in the 20th century is best understood as a counterreaction to it.

When the 19th century began, the common law displayed a deep concern for the right of a property holder to remain undisturbed in his quiet possession of the land. State governments, to be sure, occasionally took property without paying for it, and the nation by then already had extensive experience with land use regulation. Still, private property enjoyed a legal protection that befitted its practical and mythical importance in the ways Americans thought about their nation and understood their liberty.

In time, the new class of industrial entrepreneurs would share this enthusiasm for secure property rights, but early in the 19th century, ironically, they often found that secure property stood as a roadblock for their plans.

When courts of the era described what it meant to own land, they typically portrayed the institution in natural terms. The right to use land in the Anglo-American common law was the right to live on it peacefully and to remain undisturbed in its quiet enjoyment. A 19th century English court offered a particularly lyrical rendition of this early understanding of private ownership:

What then is the right of land and its owner or occupier? It is to have all natural incidents and advantages as nature would produce them. There is a right to all the light and heat that would come, to all the rain that would fall, to all the wind that would blow; a right that the rain which [32 ELR 10256] would pass over the land should not be stopped and made to fall on it, a right that the heat from the sun should not be stopped and reflected on it, a right that the wind should not be checked, but should be able to escape freely; and if it were possible that these rights were interfered with by one having no right, no doubt an action would lie.¹

Private land was protected by laws against trespass, which barred all unconsented physical entries, and by nuisance law, which prohibited neighbors from engaging in acts that indirectly harmed an owner's use and enjoyment of land. A landowner could not disturb the land's natural drainage in a way that harmed neighbors. Water in flowing rivers was available for use by a landowner, but except to fulfill elementary needs no owner could use it in a way that diminished its quality or quantity for a downstream user. Under the doctrine of ancient lights, an owner who made extended use of sunlight reaching his land could halt a neighbor's interference with that light, even when caused by an ordinary building or fence.

Property rights were secure enough in this farm-centered legal scheme, but they were defined in ways that industrializing America increasingly deemed unacceptable. Industrial landowners needed to use land more intensively than did their agrarian forebears. Small-scale farmers might enjoy water laws that protected a stream's natural flow, but industries wanted to use water intensively, altering the flow and degrading its quality. They needed the right to emit smoke and odors bothersome to surrounding households, to make noises that scared horses, and even to emit sparks that occasionally set wheat fields on fire. Water wheels necessarily disrupted migratory fish patterns. Tall buildings necessarily blocked sunlight and healthful air. The old law, by protecting an owner's right to the land's "natural incidents," stood as a barrier to industrial-style progress.

Over the course of the 19th century, American lawmakers materially changed the meaning of land ownership to facilitate these newer, intensive land uses. As they did so, sensitive, agrarian landowners suffered because they lost some of their legal rights of protection. The doctrine of ancient lights was one of the first to go; as it did, landowners could no longer complain about the blockage of natural light. Courts continued to talk about a landowner's right to enjoy quietly the "natural incidents" of the land, but that right increasingly was qualified by the neighboring landowner's right to make "ordinary" and "customary" uses of the land—uses that were, increasingly, anything but quiet.

As many courts cast the issue, the key legal question was not whether a neighbor caused harm but whether the neighbor's activities were reasonable under the circumstances, or whether they were conducted in ways typical of the industry or trade that the neighbor conducted. Water law dropped its concern with the river's natural flow and began allowing riparian landowners to make more intensive uses of the river, even a use that drained a river dry or polluted it severely, so long as the use was deemed reasonable under the increasingly pro-development standards of the day. In the western arid states, the riparian rights doctrine was dropped entirely, replaced by the more pro-development prior appropriation system in which downstream landowners had no rights to challenge upstream water uses, no matter how destructive, unless they possessed water rights dated earlier in time.

This shift in property rights took many forms, and while it occurred erratically and incompletely in many states, the overall trend was clear. Sensitive, agrarian land uses no longer enjoyed the protection they once did. Priority in time as a principle for resolving land use disputes—a principle that typically favored the older, less intensive use—was given less and less weight, until some courts began deeming it irrelevant. Nuisance law no longer halted harmful interferences with a landowner's enjoyment of the land; increasingly it protected only against substantial interferences caused by unreasonable or negligent land uses. As many courts saw the issues, mines, factories, stockyards, and the like were reasonable activities in a rapidly expanding economy. If landowners were to undertake them, benefitting the economy as well as themselves, property law should not stand in the way.

Market Individualism and the Common Good

These changes in landowner rights, diminishing the protection of sensitive uses and facilitating more intensive ones, were parts of a larger shift in cultural values and power relationships. It was a shift that exalted individual liberty and the open market while downplaying more traditional, organic visions of the social fabric.

Fading Visions of a Society Well-Ordered

By the time the 19th century moved toward a close, land ownership commonly meant the right to use land, water, and other resources in any way that did not intentionally harm neighbors and that was not conducted in a negligent manner that caused avoidable harm. Losing ground in legal thought was the once vibrant ideal of a "well-ordered society," under which laws prescribed carefully the methods of economic enterprise for the good of the whole. Also losing ground was the line of thought that linked "property" with "propriety," and that viewed the property rights of individuals as counterbalanced by equally strong, if not overriding, rights held by the community.

Early in the century, New York Chancellor James Kent could proclaim with little debate that "private interest must be made subservient to the general interest of the community,"² and Justice Woodworth of New York could reason that "the sovereign power in the community . . . may and ought to prescribe the manner of exercising individual rights over property."³ Even at mid-century, Lemuel Shaw, Chief Justice of the Massachusetts Supreme Judicial Court, could state as

a settled principle, growing out of the nature of well ordered civil society, that every holder of property, however absolute and unqualified may be his title, holds it under the implied liability that his use of it may be so regulated, that it shall not be injurious to the equal enjoyment of others having an equal right to the enjoyment of their property, nor injurious to the rights of the community.⁴

By late in the century, talk of the community's rights became less frequent, and courts referred less often to the idea of a [32 ELR 10257] society "well-ordered." Public interest and private interest were more intertwined, for as many people saw it, both were promoted by intensive uses of land. Indeed, courts began to show greater hostility to land use regulations, particularly restraints on industrial land uses, and occasionally struck them down as improper interferences with private rights. The entire body of law known as public nuisance weakened and nearly disappeared, as courts raised the burden of proof needed to show that a landowner's activity unlawfully disrupted public rights.

The Impotence of Local Government

Since early colonial days, land use laws had largely originated at the local level, and so did other economic regulations. But the market had become so potent by late century that local communities found themselves less and less able to contain it, even when they wanted to do so. Businesses were simply too big. Goods moved too freely through the national economy. Competing to get railroads to lay tracks to them, local communities and even states were hard pressed to complain when railroads damaged farms and towns. By late century, businesses became big enough to manipulate national markets through monopolistic practices. Within local economies centered on a single commodity like timber or silver, residents were too dependent on the commodity to challenge its methods of extraction.

The obvious answer for these various problems was for higher levels of government to become involved, particularly the federal government. But the nation's tradition of economic regulation was all at the state and local level. It was a new thing for the federal government to become involved, and its intervention in the market was slow. Only gradually, over a period of generations, did it become clear that big-scale businesses created a need for big-scale government to contain the ills of industrialism and concentrated private power.

The Rhetoric of Individualism

A related reason why governments addressed mounting problems so slowly and reluctantly stemmed from the rhetorical power of individual liberty and property rights. America was founded on notions of liberty and property, and possessive individualism had become a potent ideological force. The Civil War, fought in part to aid the most downtrodden, paradoxically also aided big business, as the rhetoric of liberty that helped free slaves carried over easily to the liberty arguments of entrepreneurs anxious to avoid regulation. As business apologists saw it, liberty meant freedom from governmental restraint. It meant negative liberty—not the more positive liberty, implemented and secured by law, that late 18th century theorists had had in mind.

The Abstraction of Private Rights

With land speculation such a popular pastime, Americans paid heightened attention to the protection of land's market value. So focused were property theorists on land as commodity that they paid less and less attention to a given land parcel's natural features. In legal thought, scholars like Christopher Columbus Langdell, Dean of the Harvard Law School, pushed hard to transform law into a science, as rigidly logical (and hence as entitled to academic respect) as chemistry and physics. The upshot, in the case of property law, was that a parcel of land became viewed at law as an abstraction—as the hypothetical Blackacre, as it was often called—and the landowner's rights became abstractly defined. The right to use land was conceived and defined in a way that paidlittle attention to the land's natural features. Whether flat or hilly, wet or dry, fragile or stable, land parcels were largely equated. Land surveys followed rectangular grid lines, and the law treated a section of land in one place like a section elsewhere.

Dividing the Private and Public Realms

By late century, the rhetoric of individual liberty, and the public's dismay over governmental corruption, lent strength to another idea that influenced profoundly how people understood land ownership—the distinction between the public and private realms in modern life. For Thomas Jefferson and other late 18th century theorists, property was linked to the civic order. Land ownership gave a person sufficient independence to rise above self-interest and act for the common good. Property was thus inextricably linked to the good ordering and governance of society, and both the distribution of land and patterns of settlement and land use were matters of vital public moment. A century later, however, property was understood differently. Captains of industry and not statesmen were the honored leaders of the day, and industry magnates operated in a realm that appeared distinct from the public, governmental one of Jefferson and other land-holding aristocrats. Property, too, seemed to exist more in this private realm rather than in the public one. Public officials might intervene to halt a land use that amounted to a nuisance; otherwise, a landowner held the right to be left alone. Far from being the link to full participation in civic society, private property became a shield to keep the public realm in check. With liberty defined in this negative way, as the right to be left alone, regulation became more a threat to liberty than, as it had been, a vital means to secure it.

The Competitive Society

By the end of the 19th century, American law had come to embrace a new concept of society. The old organic vision of a structured, well-ordered society, containing and controlling the market, had given way to a more fluid, competitive society in which the market supplied the chief means for achieving public goals. Society had become more fragmented. With market forces so influential, the land too had become more fragmented, with each land parcel conceptually distinct from the next and with landowner rights described abstractly, with little regard for context. Private land existed within the private, market realm. Its ownership brought economic power and privacy, rather than virtue and a commitment to the common good.

The Gathering Strength of Contrary Forces

Although the property-as-commodity vision of property dominated American legal culture in the waning years of the century, it never really displaced older, more community-based ideals, nor did it displace the notion that, when public need required, the lawmaking community could subject [32 ELR 10258] property to extensive regulation. The long-standing tradition of regulating land uses, present from the first days of settlement, never disappeared completely, particularly in urban areas where governments controlled tanneries, slaughterhouses, mortuaries, prostitution houses, and other annoying activities. And as an important counterbalance to private rights, courts gradually developed the legal doctrine that the state possessed broad "police powers" to regulate economic activities in the public interest. This was not the era of complete laissez-faire that popular histories have sometimes described.

Also retaining flexibility in the face of waxing property rights was the idea of land use "harm," which limited what landowners could do. Harm—which the law had always banned—was a culturally dependent idea, one that derived its meaning from the values that prevailed in a particular time and place. With economic development enjoying such widespread support, many damaging land uses were not deemed harmful overall, given the benefits they generated. Still, the ban on harmful activities remained a living element of property law, powerful enough to contain disruptive land uses when the day came that public sentiment softened its pro-development tilt.

The Down Side of Industrialism

Industrialization had never enjoyed complete support in the United States, and as the century came to a close its critics became more vocal, both in urban areas beset with pollution and in rural areas where industrial forces squeezed farm families off the land and left widespread scars. Many Americans responded by way of escape, turning back nostalgically to older times and mimicking primitive ways in architecture and arts and crafts. Others, though, rose up to challenge the market and to insist that government subject it to greater control.

By the waning years of the 19th century, many people recognized that a market freed from social control brought widespread devastation, along with economic gain. Industrialization brought great wealth, to visible families like the Carnegies, Rockefellers, and Vanderbilts, but it brought poverty and destruction too, including destruction to the land community. Chicago was marred by smoky skies and a river burdened with wastes from meat packing plants. In the northwoods, deforestation occurred at frightening rates. Soil erosion and exhaustion afflicted farms all across the country. Mining tailings were dumped wherever convenient, often next to waterways that were soon polluted. With the development of the steam shovel drainage became a crusade, diminishing waterfowl habitat, disrupting hydrologic cycles, and fostering widespread flooding. Passenger pigeons were shot to extinction by market hunters, and other migratory birds suffered. So haphazard were urban land use patterns that many residential areas were hardly fit for habitation. On western lands, bison were slaughtered wholesale, and grazing lands were degraded by excessive and insensitive grazing. Along with this destruction came a nagging sense that the nation was losing something vital—not just its frontier, but its connection to the land, particularly to wildlands. John Muir drew upon this sense of loss with his popular writings on the Sierra Nevadas and Alaska. Hiking and camping clubs flourished, and children rushed to join the new-formed Boy Scouts and Campfire Girls.

The Benefits and Limits of Private Rights

Some of the land degradation that occurred during this period was due, not to market forces, but to the federal government's failure to police its lands and to the incomplete definition of private property rights in land and other resources. Public grazing lands often went unmanaged and unregulated, operating as a true open-access commons with the predictable tragic consequences. In the case of other public lands, rules commonly went unenforced; timber companies, for instance, clearcut vast areas under the guise of mining and homesteading. In the private-land realm, ownership interests in oil andgas deposits were governed by a rule of capture, which rewarded the oil producer who drained fields quickly, without regard for waste or market prices. Rivers and airsheds, like public grazing lands, were largely open-use commons in that polluters could degrade them almost at will. Without sharply crafted, legally secure rights, users of nature had no incentive to take care, and no right to complain of land abuse by others.

Looking back, it is clear that much land degradation came about because of nonexistent property rights or ill-defined property rights—just as economic theory would now predict. But much of the degradation took place because of behavior that the market deemed rational, even on secure private land. With virgin forests abundant, reforestation simply was not worth the cost. With crop and livestock prices low, farmers had to exhaust land just to get by. Drainage made good economic sense, and its ill effects were too widespread and subtle to trace back to the source. Property rights could have reduced overgrazing on the public domain, but it was infeasible to use property rights to help migratory birds or fish. Private rights also could not remedy environmental problems that no single owner acting alone could halt or redress, such as the degradation of riparian corridors and the decline of game populations. Then there were the many parts of nature that simply had no market value and that were pushed aside, or that were affirmatively killed (like wolves) because they posed threats.

In the market's scheme of values, the health of the land as a whole simply did not count.

Resisting the Market

Reactions to market forces took many forms in late 19th and early 20th century America. In rural areas, farm groups like the Grange and Farmers Alliance arose to combat market manipulations by railroads and other corporations. Farm-run cooperatives flourished as alternatives to big business. Grain elevators faced regulation to contain their abusive practices; like other public utilities, they became seen as a special form of property, privately owned yet "vested with a public interest." Resistance to monopolies and trusts fueled successful pushes for new federal laws. At the state level, oil and gas laws gave birth to regulatory commissions charged with reducing the wastefulness of unbridled competition. In urban areas, community leaders increasingly recognized the need for land use regulation on a communitywide basis to segregate inconsistent activities and make cities more liveable. After initial hesitation, the U.S. Supreme Court upheld early zoning laws, and did so with language that acknowledged the practical need for governments to wield broad regulatory powers to protect [32 ELR 10259] the public health, safety, and welfare against the gaindriven market.

In the case of public lands, an alarmed citizenry was increasingly unwilling to allow the continued excesses of commodity-focused market forces. Public forests were set aside to protect them from private clearcutting millions of acres at a time, and majestic natural areas gained protection as parks. Valuable oil and gas reserves were placed off limits, no longer available to the first comer. The federal land-disposition policy slowed and, in the 1930s, largely halted, as reasons mounted to keep land in public hands. Private ownership had become a more ambiguous institution, and long-term public ownership began to make sense for many lands. In the West, grazing lands were subjected to regulation, however poorly enforced and grazer-dominated. In the East, the federal government bought back cutover timber lands to create national forests in an attempt to remedy the market's failure to promote reforestation and to protect watersheds. Public ownership and public subsidies were also used to address the market's widespread lack of concern for soil erosion—a problem that no one could ignore when Dust Bowl silt coated the eastern seaboard in the 1930s.

By the mid-20th century, American industry still enjoyed prestige and economic development remained an unquestioned goal, particularly with memories of the Great Depression so vivid. Industry still wielded considerable political clout, in some cases (such as Kentucky's coal industry) so much clout that it could capture and manipulate lawmaking processes. Even when lawmaking remained more legitimate, "price of progress" arguments carried weight. In 1953, for instance, the Supreme Court of Pennsylvania turned aside a homeowner's nuisance suit against a coal-processing operation that caused his white house to turn black in a single year and rendered his home almost unliveable. "One's bread is more important than landscape or clear skies," the court responded. "Without smoke, Pittsburgh would have remained a very pretty village."⁵ A decade or two later, when the first wetlands preservation laws were challenged, some courts reiterated this pro-development bias. Laws prohibiting wetlands drainage were not aimed at halting a harmful activity, courts announced. They forced landowners to turn their lands into park-like nature preserves, and landowners deserved compensation.

Yet pro-development reasoning like this was clearly becoming a thing of the past, at least when couched so extremely. New environmental measures, to be sure, would encounter resistance, yet nearly everyone recognized that trade offs were involved. Intensive land uses could be bad overall, and laws were needed to limit them.

Contemporary Trends

As the 21st century begins, landed property rights in the United States are moving in many directions. Private rights remain important, and loud calls are heard both to expand private rights into new realms and to make private rights more clear, secure, and transferable. Yet other pressures and trends are also visible, some pushing in opposing directions, toward property rights that are less clear, more restricted, and more subject to group rather than individual control. As a whole, property law displays continuing struggles, most vividly between private rights and communal interests and between a fragmented, commodity view of land and more holistic views that emphasize ethics, aesthetics, and ecology.

To survey the landscape of property rights is to see ongoing negotiations and struggles with no end in sight. On the surface, disputes center on resource use options and on who holds the reins of decisionmaking power. Beneath these issues are fundamental questions about values, human nature, and how individual humans might best fit into their social and land communities.

Though the contemporary scene is distinctly messy, it is possible to identify six major themes or trends in contemporary landed property rights.⁶ Briefly stated, they are as follows:

. Landowner rights to use land are increasingly tailored to the land and to the surrounding social context; that is, rights to use land are becoming more context-dependent. In a related shift, rights to use land intensively are being reduced, with corresponding increases in the protections landowners enjoy against disruptive land uses by neighbors.

. Old categories of private ownership versus public ownership are being blurred, with more instances of intermediate ownership forms that mix the categories. Increasingly, rights in a single piece of land are fragmented among various "owners," with some rights held by the prime user of the land while other rights are held by neighbors, private entities, and government bodies.

. Land use planning is taking place on larger spatial scales and covering rural lands, aimed chiefly (although not solely) at urban sprawl, quality-of-life issues, and various land use-related environmental problems.

. American law has made substantial progress toward a complex reconciliation of the unending conflict between the private owner's desire for clearly defined, stable property norms and the community's contrasting need to retain power to redefine ownership rights in light of shifting conditions and values. The reconciliation offers substantial protection for existing land uses but far less protection for landowner desires to devote land to new uses.

. Governments at all levels, from the most local to the national and even global, are becoming involved in the processes of defining and controlling land use rights, albeit with little consensus and much experimentation on how best to allocate power and responsibility among the various governing levels.

. In the vitally important rhetorical battleground over the meaning of private property, individualistic, commodity-focused images of ownership have gained prominence, and they have significantly impeded efforts to address rural land use problems, [32 ELR 10260] particularly land degradation caused by agriculture and other commodity-production activities. Though conservation advocates have been slow to develop alternative images of ownership—ones that draw upon organic, communal understandings of ownership—alternative images are emerging, thus joining the contest over private property as cultural emblem.

The remainder of this Dialogue explores in order these six dominant trends in American property law. Collectively, these trends reveal the peculiar shape of private landownership in the United States. Embedded within them, more than in any simple model, lie the lessons that the United States might offer to other legal systems.

Emphasizing Context and Protecting Sensitive Uses

Limiting Pollution

By the end of the third quarter of the 20th century, American law was well on its way toward requiring landowners to reduce their pollution and otherwise pay attention to the visible external harms that they caused. Some pollution-control laws operated by mandatory fiat; others simply imposed liability or fines; still others worked through economic incentives. Early efforts typically required industry groups as a whole to make across-the-board cutbacks. In recent years, regulators have acted more flexibly, tailoring permits to a polluter's particular context in such a way that rights to pollute are more dependent on surrounding conditions.

The most conspicuous deviation in American law from the polluter-pays principle occurs in the case of water pollution caused by commodity-production land use activities, particularly agriculture. In that setting, political alliances, aided by the rhetoric of liberty and private property rights, have combined to resist meaningful regulatory limits on land use practices. The continuing degradation of many farm-dominated landscapes provides a reminder of the typical impacts of an unfettered market.

Tailoring Private Rights to the Land

The tailoring of landowner rights to the land has been even more pronounced in the case of laws restricting development activities in ecologically sensitive areas, such as wetlands, endangered species habitat, floodplains, aquifer recharge areas, and highly erodible hillsides. For landscapes as a whole to become (or remain) healthy, such sensitive lands require some form of legal protection.

Thus far in the United States, laws protecting sensitive lands have typically addressed only a single category of land, e.g., floodplains, sensitive aquifers, and they are understood as discrete measures. But when such laws are assessed together, as a new trend in landed property rights, they show how a landowner's use rights are no longer so abstractly defined. The land's peculiarities are being taken into account in defining the owner's right to use it. Western water rights, for instance, entitle owners to use water only in ways that are "beneficial," and the term's definition increasingly pays attention to ecological impacts. Nuisance law works similarly, by limiting land uses to those that are reasonable in a given place. Under the Endangered Species Act (ESA), habitat conservation plans effectively tailor a landowner's development options so as to minimize adverse impacts on protected species. Incentive programs also play a role here. The federal conservation reserve program for farmlands, for instance, pays landowners to devote ecologically sensitive lands to conservation purposes; by accepting payment, owners voluntarily reduce and tailor their land use rights.

Redefining "Harm"

The move to tailor private property rights is closely related to the important, ongoing shift in the idea of land use "harm," and to the increased legal protection afforded sensitive activities. In many ways, this 20th century trend has reversed the tendency of a century earlier to sanction intensive uses. Cultural values have shifted, and the reasonableness of land uses is being reassessed. Noisy, smelly, polluting, disrupting land uses are increasingly banned as harmful. Wetlands protection laws restrict drainage rights while protecting downstream owners against flooding. Wildlife protection laws restrict development in sensitive habitats while offering landowners in exchange a more biologically diverse landscape. Laws such as these are often criticized as reductions in property rights, but they are more accurately understood as reconfigurations of those rights: intensive land use options have been reduced, but landowners gain in exchange greater rights of protection for their sensitive uses of land.

Out of the confluence of these trends is emerging an image of land ownership that deviates widely from the abstract bundle-of-rights image so popular in the late 19th century.

The Communal Role

Writing in the 19th century, historian Sir Henry Maine claimed that advancing societies typically shift from a scheme of common or shared property to individual private rights. Whatever the truth of Maine's observation for particular development stages, the recent trend in America has been far different, toward an increase in shared or communally managed property and toward a blurring of the public-private line.

From Individual to Shared Rights

One small chapter in this story occurred in 1988, when the Supreme Court of Illinois heard a case dealing with rights to use the surface of Lake Zurich, a non-navigable lake outside Chicago. The governing common-law rule for such a dispute was that each owner of part of the lake bed controlled the water surface above his or her part. That rule, though, divided the lake surface into individual pieces, with no one able to use the entire lake's surface. Disturbed by this outcome, the court abandoned the common law in favor of what it termed the "civil law" rule—the rule that each owner of lake-front land has rights to make reasonable use of the entire lake surface, in common with the rights of other owners to do the same.

This Illinois ruling illustrates a pronounced willingness in American culture to abandon old practices of dividing nature into distinct individual pieces and to consider instead possibilities for shared or communally managed rights. Lake Zurich did not become public property, useable by [32 ELR 10261] anyone; it became a type of closed-access commons, usable only by landowners and their guests. Ownership rights are shared, with the court reserving ultimate power to decide whether particular surface uses are reasonable.

The result in the Illinois case caused little controversy, mostly because it fit so readily into an already familiar trend toward shared ownership rights. Condominiums and cooperatives provide a prime example of this trend. In them, buyers obtain both exclusive rights to particular living spaces and rights to the shared use of commonly owned facilities. Common facilities are typically managed by a homeowners association or other entity and are a form of jointly owned property. Even the separately owned units, however, are regulated by the collective group, and the regulatory control of the group effectively gives it a nonpossessory ownership stake. Single-family homes and even office buildings are similarly arranged in common-interest ownership schemes that empower an owner's association, or other private governance entity, to provide common services, regulate activities, and manage common spaces. Mineral extraction in oil and gas fields is often done under pooling and unitization schemes in which numerous private parcels are united into a single operating scheme. In coal districts, landowners sometimes organize themselves into associations to make their lands more attractive to potential lessees. Many irrigated lands are indirectly managed by irrigation districts or membership organizations that control essential water flows.

Private Land Planning

Along with these and other instances of shared or pooled resources are the many cases of private land use planning—another form of private rights mingled with group control. Residential developments for decades have included land use restrictions—restrictive covenants or equitable servitudes, as they are commonly termed—that limit private land use options. Restrictive covenants first became popular in urban residential areas, and have since spread to developments everywhere, residential and commercial. So restrictive are many covenant schemes that owners effectively hold only the right to make a single use of the land, typically single-family residential use. The remaining rights in the land are, in effect, held by other landowners, who are empowered to enforce the covenant restrictions. Because all landowners are typically both restricted and given enforcement powers against their neighbors, landed property rights are intertwined.

In recent decades, private land use planning has often taken the form of negative easements, in which development rights are given or sold to a preservation-oriented entity. Some easements preserve historic structures. Others keep land in farming, ranching, and other low-intensity uses. Many conservation easements are held by land trusts specifically set up for that purpose. Less restrictive than conservation easements are arrangements in which private conservation groups such as Pheasants Forever supply seed and assistance to landowners to improve wildlife habitat, in exchange for agreements to maintain land in conservation status. In all such cases, ownership rights are shared.

By all appearances this trend toward shared ownership and private land planning is expanding in scale, with new land trusts arising weekly and individual conservation transactions sometimes involving thousands of acres at a time. In western arid grazing regions, proposals are under consideration to combine private ranches into single management units, covering hundreds or thousands of square miles, to allow for grazing practices that better mimic the wandering habits of native bison. Other proposals would allow for the initiation of semi-coercive private land planning in already developed areas—a practice now impossible without the unanimous consent of all landowners.

The Blurring of Public and Private

In urban areas, and increasingly in rural areas too, private land planning supplements public, government-run processes, which also arise because of the interconnection of land uses and the need to mitigate the ill effects of fragmented decisionmaking. Under zoning laws that became widespread in the 1920s, a government body typically prepared a comprehensive land use plan, dividing an area into land use zones, and then made decisions based on that plan. In the decades since then, planning has become a more fluid process, as formal plans have proven insufficiently flexible. Zoning ordinances have become less a clear set of rules, mechanically applied, and more a set of norms that are tailored to a project through negotiation between private developers and government land planners. Public input is sought and often heeded, and developers are commonly asked to mitigate the ill effects of a project, either by providing cash payments to the government or by dedicating land and improvements for public use. At the same time, communities often recognize the beneficial spillover effects of certain developments, and they offer tax rebates and other incentives to attract them.

The end result of these various government actions is that the right to develop, and the development process itself, blend private rights and public interests. In practice, a landowner typically holds only vague, uncertain rights to develop a land parcel, and in recent decades these rights have become more vague and uncertain, with heightened public concerns over congestion and land degradation.

This blurring of public and private interest occurs, not just on land that is nominally private, but on public land as well. Governments in the United States own a full 40% of all land, with the percentage rising slowly through the continued purchase of lands for recreation and conservation aims. Many public lands, however, are subject to legally binding claims by miners, timber harvesters, grazers, ski resort owners, and others, who hold protected rights to use public property for private gain. Such use rights are crafted and regulated by statute and regulatory action. With the exception of hard-rock mining claims on federal lands, they are typically allocated to private parties through competitive bid systems.

In the 1970s, many western states called loudly for the federal government to divest its massive land holdings. That movement soon withered, however, in part because it became clear that the ultimate ownership of land, in the sense of holding title, is often less important than are rights to use land and gain income from it—rights that are severable from the land title itself. In the West, much land remains federally owned, but state and local governments, as well as commodity industry groups, play important roles in deciding who uses the land and on what terms, and they have captured much of the income generated by these lands. Under federal [32 ELR 10262] laws promoted by western interests, most royalty and rental payments on public lands are turned over to states and local governments. In addition, states have the power to tax private activities (such as mining) conducted on public lands, thereby capturing an even greater share of the overall gain, and they are empowered legally to regulate federal lands for environmental ends. As a matter of practical politics, extractive industries are part owners of these lands as well, given their considerable influence over government decisionmaking at all levels. The upshot, as in the case of private land, is that public and private interests are intermingled, and decisions are made through negotiated, public-private processes.

Taken together, these various trends reveal that private land in America is not well presented by the image of a single land parcel managed by a single land owner. Land use is very much a communal concern, and in important ways the people affected by land use decisions have a voice in making them.

Expanding the Scale of Land Planning

One of the most prominent trends in landed property law is the increasing spatial scale of land use regulation. For decades, communities regulated their lands independently, with only minimal concern over spillover effects at a community's edge. By the end of the 20th century, however, much land planning was occurring on regional and even statewide scales, in addition to traditional local-level work.

Planning for Conservation

Much of this regional planning was done to contain the ill effects of urban sprawl. Acting alone, suburban cities and even entire counties lack the power to contain the market pressures propelling expansion; only by acting in concert can lawmakers take control. Wisely done, regional planning can reduce the costs of highways and other infrastructure improvements, mitigate traffic and commuting times, preserve open spaces and greenways, protect floodplains and other ecologically sensitive lands, and otherwise improve the quality of suburban life. Other regional planning efforts have aimed more expressly at ecological conservation. Land use activities are sometimes controlled in areas that overlie sensitive drinking water aquifers, such as New Jersey's Pine Barrens. Development is similarly constrained in treasured forests like New York's Adirondack Mountains, and in watersheds that supply drinking water to major cities. Sensitive ecological regions in Florida, including the Everglades area, are subject to regional plans that require careful assessments of the ecological impacts of major construction projects. Nearly all coastal states have special regulations protecting coastal zones.

Specific federal statutes have encouraged states to deal with particular ecological problems through wide-scale planning, sometimes referred to as watershed planning or ecosystem management. The Clean Water Act, for instance, requires states to address the problem of polluted run-off—what the statute terms "nonpoint source" pollution—and this is often possible only by influencing regional land use practices through incentives and regulation. The Safe Drinking Water Act encourages states to protect drinking water supplies and expresses a preference for protection that reduces problems at their source, which is usually a misused landscape. The ESA indirectly promotes regional habitat conservation planning as a means of balancing development pressures and the needs of imperilled species.

Development Rights in the Regional Context

One of the special challenges that arises in efforts to limit overall development is the need to avoid unfairness in deciding who gets to develop. U.S. law has only begun to address this issue. Many damaging land uses are harmful not in isolation, but only when too many landowners engage in them. Drainage on one farm rarely causes damage; the drainage of an entire watershed, however, can yield flooding, drought, and streambank erosion. Habitat modification that has little impact on a modest scale can, on a larger scale, materially disrupt a biological community. Pesticides and fertilizers used in abundance can disturb aquatic ecosystems and render water undrinkable.

One way to deal with such "carrying capacity harms" is to allow damaging uses to continue arising until the point is reached when further harm is intolerable. By allowing development to occur freely and then halting it abruptly, this approach effectively allocates development rights based on a first-in-time system. Because many people perceive this approach as unfair, and because communities have trouble drawing a line and sticking with it, communities have sought alternative methods to cap overall alteration. One method, little used yet highly promising, entails the use of transferable development rights (TDRs), in which all landowners in a region receive limited rights to develop, which they can either exercise or sell. TDRs are allocated so that overall development stays within acceptable limits. Owners of ecologically sensitive lands are often banned from developing their own lands, but they participate nonetheless in the gains of development by receiving development rights that they can sell for cash to owners of land that is suitable for development.

The Rise of Community-Based Conservation

Because land use regulation has long been a local prerogative, many landowners resist regulation that originates from a distant government, particularly the federal government. Disproportionately, criticism of regulation centers on federal laws protecting wetlands and endangered species habitat, even though the federal government plays only a minor role in the overall regulatory scheme. Conservation groups have responded by trying to work more with and through local communities, using bottom-up processes that encourage landowners to understand and help solve land use challenges. Community-based conservation, as it is often termed, focuses on such problems as nonpoint source water pollution, excessive modification of hydrologic cycles, loss of wildlife habitat, and the disappearance of open space.

A major challenge to such work, aside from the widespread rural suspicion of land use limits, is the long-term decline of rural communities, economically, socially, and psychologically. The market has helped bring on that decline by reducing the need for farmers and shifting jobs to cities. It has also corroded senses of community by promoting competitiveness and individualism. By instilling a commodity-centered view of nature, it has reduced the ability of [32 ELR 10263] landowners to perceive the land, and their place on the land, in ecological terms.

What the trends illustrate is the growing recognition that land parcels are interconnected, not just neighbor-to-neighbor but at the landscape level. Many environmental problems are only addressable at that level, and beginning steps are being taken to do so.

Pressures for Stability and Change

The norms governing land ownership in the United States have always evolved in response to changing conditions and values, which is to say that private property has always been a living, evolving institution. Change, though, meets resistance from landowners adversely affected by it, just as it is promoted by landowners who stand to benefit. Dealing with this tension is a central challenge for any private property regime.

For generations, the existence and pace of legal change in the United States was masked because change occurred largely within the common-law tradition. Judges used a conservative writing style that concealed change by presenting new rules as logical outgrowths of earlier rulings. Change was even harder to note when it occurred, not by explicit rephrasings of legal rules, but by shifts in their application. A court could consistently require land uses to be "reasonable," while significantly altering the meaning of the term as applied.

From Common Law to Statutory Change

By the mid-20th century, changes in laws governing private land were largely being made, not by courts adjudicating common-law disputes, but by lawmakers writing statutes and regulations—legal expressions that were more precise in their terms than common-law rules and that changed the law more visibly. Overt, distinct changes were easier to perceive and criticize as unfair disruptions of landowner expectations. Several factors late in the 20th century fostered heightened concern over the perceived unfairness of many of these new laws: an increasing hostility toward government generally; the rise of free-market, libertarian thought; and the expansion of land use limits to address ecological disruptions that many citizens did not perceive as harmful. Among the institutions showing new hostility toward shifts in landed property rights was the U.S. Supreme Court, which in a series of rulings scrutinized new regulations and, in several cases, struck them down as unlawful interferences with vested property rights.

By century's end, governments at all levels were struggling to accommodate the desire of most landowners for clear, stable property rights with their own need, as community guardians, to reshape laws to accommodate new problems and new values. Arguments about the issue often took the form of lawsuits claiming that particular regulations amounted to unlawful "takings" of private property, without the payment of just compensation.

The Benefits of Vagueness

Governments continue to negotiate this never ending conflict in several ways. Many have learned that clear, precise rules, prescribing what landowners can and cannot do, soon become out of date and cause problems when changed. One solution is to shift to regulatory approaches more similar to the old common law, which defined landowner rights vaguely, and hence left enforcers with room to maneuver. Water law reformers, for instance, have worked to graft a "public trust" notion on to water rights so that courts have a vague but potent tool to prod water users to mend bad practices. The common law itself has revived in importance, as more land use disputes are brought as nuisance cases, with citizen-jurors judging disputes using vague standards and by drawing upon evolving, contemporary values. When precise rules are inescapable, governments often leave room for negotiation, including possibilities for variances and adjusted standards. Flexible standards hold particular appeal because they allow room to tailor rules to a specific setting.

Protecting Expectations: Existing Versus New Land Uses

By and large, landowners in the United States enjoy widespread protection for current land uses, which are allowed to continue unless they are nuisances. Regulations banning particular activities almost always contain "grandfather" clauses that permit the continuation of preexisting violations. Such protection is needed, to one degree or another, if landowners are to make valuable investments. On the other hand, much less protection is needed for landowners who want to develop bare land or to change current uses, and American law affords them less protection. Under prevailing constitutional law, for instance, a regulation that prohibits development or new activities on a parcel is unlikely to trigger the duty to compensate so long as it allows continuation of an existing, profitable land use.

Several reasons explain this lessened protection for changes in current uses. Land speculation is so uncertain already that legal uncertainty is easier to accommodate. Moreover, an increase in the value of bare land often comes about, not through any landowner action, but from roads, sewers, and other public and private investments. Landowners have less forceful claims for protection when the value they want to protect was not created by them. Finally, land development has so many spillover impacts that it is inevitably a quasi-public activity, and landowners have abundant notice of the public's oversight role.

Compensation to Smooth Transitions

One final piece in this complex reconciliation of landowner desires and public needs is the regulatory takings doctrine itself. Although commonly understood as a firm protection against regulation that "goes too far"—as the Supreme Court famously put it in a 1920 decision—the doctrine in practice operates chiefly to protect landowners only in times of legal transition. As an institution, private property can function well under legal regimes with widely varied ownership norms. What owners need is stability in those norms. Takings challenges have typically succeeded only when a landowner is surprised by a new legal rule. Landowners who acquire property after a specific law has taken effect have little chance of challenging it successfully.

What these legal pieces reveal, once assembled, is a recognition in American law of both the benefits of clarity and security in private rights and the equally vital benefits of vagueness and flexibility.

[32 ELR 10264]

Getting the Institutions Right

By the late 20th century it had become clear that all levels of government, from the most local to the national, needed to play roles in addressing land use environmental problems. Early in the 1970s, the federal government considered various proposals for national land use planning, but the entire idea met great resistance. Two decades later, when heated controversy broke out over environmental land use controls, the prime targets of attack were the few federal regulations, not the more numerous state and local laws. The federal government, it was plain, was simply too far from the people to regulate land successfully. At the same time, conservation interests were being frustrated by the inability of most states to deal with land use environmental challenges such as polluted runoff and declining endangered species habitat. Too many states would act, it seemed, only if pushed hard from above. Conservation interests also came to realize that the public would support needed regulation only if local communities had greater involvement in the process.

All Levels of Government

The overriding conclusion that emerges from these assessments is that all levels of government must become involved if the land community is to regain health. And among the several levels of government, power and responsibility should be allocated pragmatically, rather than based on any theoretical vision of federalism. Although American lawmakers rarely look to international law for guidance, policymakers are increasingly espousing positions roughly similar to the subsidiarity principle in international environmental law: the lowest level of government that can handle a problem responsibly should do so, recognizing, however, that higher levels of government are commonly needed to set expectations, to equalize competitive conditions for business, and to ensure that state and local governments do not push their problems downstream or downwind.

In free-market thought, attention is often paid to the need to "get the prices right," so that goods and services are priced to reflect true overall costs. When it comes to embedding the market in the social order and protecting community interests, the comparable need is to get the institutions right. Allocating power and responsibility among levels of government is part of that need. Another part is to overcome the fragmentation of governing bodies in settings where coordinated action is needed to address landscape-scale problems.

Containing Big Business

Getting the institutions right means, in part, finding ways to counteract the power that vested market interests enjoy in influencing government processes. Government actions that promote the common good benefit many people in small ways. Individually, however, beneficiaries have little motive to protect their interests, particularly on complex issues, and high costs are involved in organizing them into effective pressure groups. Economic analyses of "free riders," and the related theory known as public choice, explain why the pro-conservation side of disputes is typically underrepresented.

Progress in addressing environmental problems has come about in large part because conservation interests have nonetheless been strong enough to raise the conservation banner. Without them, little progress would have occurred, and further progress depends importantly on their continued vitality. Conservation groups typically focus their resources at the national level, and their impact there, accordingly, has been greatest. Resources are much thinner at the state and local level, where development interests typically exert great influence. Not surprisingly, the United States has made far less progress on environmental problems that have been left to state and local governments to address, a fact that doubtless explains the enthusiasm of many business groups for shifting environmental management to the state level.

The Special Challenges of Subtle Declines

As the 21st century begins, perhaps the prime challenge in U.S. landed property law is to get the institutions right with respect to decisionmaking processes aimed at addressing gradual, subtle, yet ultimately debilitating land abuses. Interest in community-based conservation is directed in part toward this aim. The motivating hope is that organized market forces, like agri-business industries and large timber companies, will be less effective in dealing with widely scattered groups of citizens who come together to learn about their local lands and to make decisions about it as citizens rather than consumers. Vested economic interests most often succeed in derailing effective land use regulation by portraying such regulation as an unwanted interference with local activities. Particularly in rural areas, support for land use regulation increases markedly when regulation is viewed, not in that way, but as a tool for a community to use in defending itself against destructive market forces. Thus, rural support for regulation is high when it provides a tool to ward off unwanted landfills or confined animal feeding operations.

As a means of getting institutions right, community-based conservation remains in its infancy. It may or may not prove effective as a means of helping local citizens learn about subtle, destructive land uses that erode and degrade soil and otherwise sap the land's health. It also may or may not prove effective in getting local communities to act as responsible members of larger regional and interstate communities.

The Fallacy of Neutrality

One final point about getting the institutions right has to do with the policy orientation of government. A long-standing ideal within liberal thought is that of the neutral, "night-watchman" state that mediates among citizens, insisting upon fairness but not itself choosing among versions of the good life. The "neutral state" idea has been discredited, in part because neutrality is often impossible. Still, the idea lives on and has revived in importance with the waxing strength of free-market ideology.

In the environmental arena, the market plainly has not and will not promote the overall health of the land, and deliberate communal action is essential. Although government can remain neutral in many policy arenas, sustainable living practices are achievable only through collective [32 ELR 10265] means, both to correct market failures and to achieve nonmarket goals. With a neutral state in charge, market deficiencies would lead quickly to a degraded land, as they have done many times in American history.

The Rhetoric of Owning

By the end of the 20th century, much of the debate over private property in the United States was occurring, not at the level of specific policy, but at the level of symbol and myth. Private property is central to the self-image of the United States. It helps define the uniqueness of America and accounts, in the widely held story, for much of the nation's success. Property as symbol is particularly vital to those who strongly embrace individualism and free enterprise and who view private property as a shield against an overreaching state. In the eyes of many, environmental land use rules threatens this core institution.

Property Rights and Irresponsibility

On their side, conservation interests have also come to worry about private property, largely because it gives landowners a powerful tool to escape accountability for degradation. "Polluter pays" has become a widely accepted idea in American law, except in the case of pollution generated by rural land uses. Conservation interests are also concerned about the messages implicitly conveyed by private property in its individualistic, market-based forms: that nature is a collection of parts rather than an integrated whole; that fragmented management makes sense; and that private land creates a sphere of private interest distinct from the public realm.

These messages blend with market ideology in the popular mind to make land a market commodity, with its value set and its highest use determined by market forces. Also damaging are the market's messages about value—that most parts of nature hold no value, and that value lies entirely in the tradeable parts of nature, not in the interconnected organic whole.

The Ethics of Owning

By the 1930s, the leading conservation figure in 20th century America, Aldo Leopold, was already struggling with these issues. A pioneering field ecologist, Leopold realized that the main conservation challenge of his day, as of later days, was the need to promote sensible land use by private land owners. Leopold initially rested his hope in economic incentives and in the arrangement of market forces so that good land use made economic sense. Within a few years, however, he had learned enough from various incentive-related experiments to see that incentives alone would not work, useful though they sometimes were. Yet Leopold also recognized that land use regulation alone was unlikely to work, for good land use required careful attention to the features and peculiarities of each land parcel. It required, he sensed, the knowledge and devotion of a careful land steward. Regulation, he feared, was too blunt an instrument to bring about that result.

As Leopold saw it, the key to sound land use was to expand the knowledge and redirect the ethical values of private owners. Landowners needed to see land use as a matter of ethics and aesthetics as well as economics. They needed to understand how land ownership inevitably brought membership in the land community that surrounded and included the owner's land. Along with that membership, Leopold believed, came duties to promote the well being of the entire community, duties such as protecting and enriching the soil, leaving room for wildlife, protecting the natural hydrologic cycle, and otherwise altering the land as gently as possible.

Leopold's well-known "land ethic" has had a profound impact on conservation thought. Inspired by Leopold, conservation groups have recognized the need to develop stronger senses of community within landowners, both so that they are more likely to promote the common good in their land uses and so that they perceive the land more holistically. Leopold's genius lay in his ability to mix ecology with ethics and aesthetics, and conservation leaders have followed his example. In disputes over land use they have openly pushed ethical ideas, such as the obligation to protect other species and to preserve the land for later generations. And they have encouraged landowners to consider land aesthetics, hoping to stimulate concern for all of nature's parts.

A New Rhetoric of Responsibility

What the contemporary conservation movement has learned is that the rhetoric of ownership counts for a great deal, and commodity-based images of ownership can provide formidable roadblocks. Better than they have, conservation groups need to develop ownership visions that allow private property to fulfill its historic functions in promoting liberty and privacy while nonetheless encouraging landowners to consider the communal context. The idea of ownership-as-stewardship has proven useful, for it encourages landowners to recognize that their tenure is necessarily limited. More such images are needed, ones that encourage landowners to become sensitive to their lands, to become more aware of ecological connections, and to show more respect for vital ecosystem processes. Above all, as Aldo Leopold put it, ownership needs to carry the sense of belonging to a community, with rights of ownership matched by duties to promote the well-being of that community. Property law plays an important role here, for the law necessarily performs an educational function. What the law ignores, landowners are encouraged to ignore.

The United States remains saddled with images of ownership that are unhelpful to the conservation cause, and one of the chief challenges of private-lands conservation in the coming century is, not just to reform those images, but to embed them in narrative tales about the nation, its settlement of the continent, and its long history of progress, tales that capture the popular imagination and that bring private ownership into line with vital conservation goals.

What the U.S. experience shows on this issue is the importance of understanding private property as a symbol as well as an economic and political institution, and paying careful attention to the way private ownership is described. Ownership rights need to marry ownership responsibilities. Talk of property as individual enclave needs matching with community-focused talk about owning as belonging.

[32 ELR 10266]

Conclusion

So linked is private property to the economic, social, and intellectual strands of American history that it is hard to understand property without digging deep into American history and culture. America's economic success has been the product of a culture mixed with a favorable landscape, and no single institution, including private property, has played more than a small role. Still, private property has helped stimulate enterprise, of that there is no doubt, and secure land tenure has encouraged landowners to take care of what they own, even though the market's incentive toward care is by no means strong enough to protect the health of the overall land community. Private property is a powerful tool, but it is a tool that needs social control, not just by governments but by citizens who live in a place and who are prepared to work, through public and private means, to tailor landowner rights so that market forces do not undercut the collective good.

In the end, private property in the United States is a hard institution to describe. To capture it, one needs to take into account, not just the transferability of property but the many restraints on transfer; the clarity of individual entitlements as well as their continued vagueness; the role of individual owners in making land use decisions as well as the pervasive persistence of communal and public control; the role of contract bargaining in the reallocation of assets as well as the persistence of constraining communal norms; the pervasiveness of individual private ownership as well as the huge amounts of public land; the protection offered private expectations as well as the continued public role in reshaping operative rules. Property norms reflect market needs, yet they also and importantly reflect efforts by communities to contain the market and to remedy its shortcomings. That containment has been possible only because lawmaking institutions have been sufficiently democratic to respond to public concerns and because citizen groups have stepped forward to speak for the common good.

America's story, then, has been about both the market and democratic governance; about individualism as well as the community; and about abstract ideas joined with a careful attentiveness to nature's complex ways.

1. Bryant v. Lefever, 4 C.P.D. 172, 175-76 (1879).

2. 2 JAMES KENT, COMMENTARIES ON AMERICAN LAW 265 (New York, 1826).

3. Vanderbilt v. Adams, 7 Cow. 349 (N.Y. 1827).

4. Commonwealth v. Alger, 53, 84-85 Mass. (7 Cush.) (Mass 1851).

5. Waschak v. Moffat, 109 A.2d 310, 316 (Pa. 1954).

6. Because my focus here is on landed property rights and land use options, I do not consider contemporary developments relating to real estate transactions or to the relative rights of mortgagees and landlords.