Affordable Housing Institute : US

[Continued from yesterday’s Part 2; Part 1 here.]

So far we’ve seen that whether owners of beachfront property can preclude members of the public from crossing their property to get to what is indisputably a public beach is a critical matter of US land-use jurisprudence – but the moral and practical arguments go even deeper.

 

“I thought Crow Point was a friendly family neighborhood,” Cynthia Stimson said.

In proposing the beach rules, the Stimsons said, they wanted to protect themselves from liability and make the area safe for their 9-year-old daughter and 7-year-old son. Their lawyer met with neighbors, who resisted the proposals.

“We would have had to give up rights,” James Kane said outside Land Court yesterday.

 

The locals argued that it has been ever thus:

Neighbors, who feared that some of them might be shut out, said that because they had used the beach for more than two decades, they were guaranteed access under state law.

 

American law, and for that matter its great forebear English law, derives from a ‘common law’ tradition that goes back to Norman England. As the name implies, ‘common law’ derives from codification of longstanding village practice:

 

Common law originally developed under an adversarial system in England from judicial decisions that were based in tradition, custom, and precedent. Such forms of legal institutions and culture bear resemblance to those which existed historically in continental Europe and other societies where precedent and custom have at times played a substantial role in the legal process, including Germanic law recorded in Roman historical chronicles.

Before the institutional stability imposed on England by William the Conqueror in 1066, English residents, like those of many other societies, particularly the Germanic cultures of continental Europe, were governed by unwritten local customs that varied from community to community and were enforced in often arbitrary fashion. For example, courts generally consisted of informal public assemblies that weighed conflicting claims in a case and, if unable to reach a decision, might require an accused to test guilt or innocence by carrying a red-hot iron or snatching a stone from a cauldron of boiling water or some other “test” of veracity (trial by ordeal).

 

In 1154, Henry II became the first Plantagenet king. Among many achievements, Henry institutionalized common law by creating a unified system of law “common” to the country through incorporating and elevating local custom to the national, ending local control and peculiarities, eliminating arbitrary remedies, and reinstating a jury system of citizens sworn on oath to investigate reliable criminal accusations and civil claims. The jury reached its verdict through evaluating common local knowledge, not necessarily through the presentation of evidence, a distinguishing factor from today’s civil and criminal court systems.

 

The common-law holding of some land ‘in common’ is still a bedrock in American jurisprudence; the Pilgrims carried its principles with them to the New World. Smack dab in the center of old Boston is its famous Boston Common (singular, not plural), because the land was held in common and all could graze their cows and sheep thereon:

 

The Freedom Trail starts on Boston Common!

This tradition of common land, common grazing land, goes back to the Normans and probably to the Romans. England is crisscrossed with Public Footpaths and Public Waypaths:

 

These footpaths and waypaths represent a very pure expression of a moral societal compact: the traveler is free to cross owned land, and the landowner even accommodates the passage, provided that the traveler respects the land. Since much of this is grazing, one often crosses fences via a stile:

 

And we enter a subway through a turn-­stile

 

Or a footpath vee-gate

 

Or a cattle grid

 

 

In each case, humans may pass, and animals will be penned. Property is respected even as access is granted.

 

 

These footpaths are a great delight of the English countryside – one stomps across muddy sheep-dipped fields in search of standing stones,

 

Burial cairns,

 

 

And more. Since the rules are so politely stated, and helpfullydelineated, one becomes even more respectful that one not stray from the permitted paths.

Judging by their comments, I hear that plaint in the neighbors’ comments:

 

Amyra O’Connell, 50, who grew up playing on Little Beach, said neighbors just want to keep what has always been part of their lives.

“The spirit of a neighborhood is being broken here,” O’Connell said yesterday. “It was a family beach. And no one ever questioned that it wasn’t.”

When the Stimsons bought land on Melville Walk in 2001, they were looking forward to moving from California, where they had lived for years, to Hingham, where Robert Stimson grew up.

 

The Stimsons are thus like rich city folk made good, who move out to the country and disrupt its rustic ways in their quest for fencing. And precisely this happened in England in the late eighteen and early nineteenth century, in a fifty-year revolution in land use known as the Enclosure Acts.

 

As the diagram suggests, all farmers in a village, no matter how small their plots, could access the common (the green rectangle, lower left), and via that grazing right could sustain their plots. But the consequence was a patchwork of plots, higgledy-piggledy, the very antithesis of any modern farming on any scale.

A wonderful description – presumably painstakingly true to life – of an enclosure petition is presented in Patrick O’Brian’s eighteenth Aubrey-Maturin novel, The Yellow Admiral:

 

 

“May I revert to the sharing of the common?” asked Stephen. “Surely the commoners have compensation for the loss of their rights?”

“In theory they do,” said Jack, “and where the commissioners have any bowels of compassion they do in fact get something — almost invariably if they can produce legal proof of their claim. In that case they are given an allotment in freehold. With a fair-sized common like this a man with two shares might get as much as say three-quarters of an acre by his cottage. Yet three quarters of an acre will not keep a cow, half a dozen sheep and a small flock of geese, whereas the free range of a common will. But an allotment as good as that is rare; quite often the land is in several pieces, sometimes far apart, and there may well be a provision in the act that each piece must be enclosed and sometimes drained. A poor man cannot afford it, so he sells his holding for five pounds or so, and then for the whole of his living he has to rely on wages, if he can get them — he is in the farmer’s hands.” (Pages 40-41)

 

The landowner then journeys up to London to present the petition before the land judge; but agrarian high Tory Jack Aubrey, defender of all things traditionally English, arrives and in his capacity as lord of the manor puts in his views, with devastating effect:

 

Thomas, Lord Cochrane, the principal model for Jack Aubrey

 

Then came the petition itself: it was handed to the chairman — Harry, of course — and he began to read out the names of the petitioners and their station: Griffiths, some of his friends some of the richer farmers. Then he cried, ‘But where’s the parson? Where’s the patron of the living? And where’s the lord of the manor? The same person, I suppose. Why is his name not here?’

Griffiths went red and muttered something to his lawyer. I stood up and said, ‘I am the patron of the living, sir, and the lord of the manor. My name is not there because I am very strongly opposed to the inclosure and to the petition.’

Harry glared about him, scribbled sums on a piece of paper, and then said to Griffiths, ‘God’s my life, sir. You have the effrontery to present this with just the barest majority by value, when you know perfectly well that three quarters or four fifths if the usual figure. And to make matters worse, far, far worse, you do so against the will of the lord of the manor, your natural superior. I have never heard of such a thing. I wonder at it, sir. I wonder at it.’ (Pages 74-75)

 

From a strictly land-use perspective, there is much to be said in favor of the Enclosure Acts. Farming of all types has become more efficient, leading to greater scale in farm sizes, greater agricultural productivity, and hence rising population, together with its byproduct, increasing urbanization. Even today one sees the lack of land aggregation crippling areas as diverse as:

 

• French farmers, where land division is the rule, leading to the absurd statistic that more than one-third of French farms are under ten acres, and the average is 100 acres, one-fifth the size of an 487-acre average American farm. (And in 1970, when reconsolidation started, the average French farm was 40 acres.)
• Southeast Asia, where minuscule slivers touch riverfront squatter communities of Indonesia and Thailand.

The former is merely uneconomic; the latter is unhealthy and impoverishing.

Nevertheless, in the Enclosure Acts, we see the tyranny of the majority by land over the majority by head count – and with it, the destruction of a self-sufficient rural way of life in favor of the urbanizing worker model, often with other unintended consequences:

 

The open fields of Beckley parish were enclosed by Act of Parliament in 1827 though the award was not completed until January 1831. […] The immediate social effects were distressing: contemporary evidence shows that the small holders and cottagers had been able to make £20 a year out of keeping geese on the coarse aquatic grass of the moor, and that the fowling and fishing had provided valuable food. Enclosure deprived them of these sources of income, while the mitigation of the chronic disease called the moor evil, possibly foot and mouth disease, of which the improving landlords had complained, was perhaps more advantageous to the large farmer than to the small one. Furthermore, the sanguine hopes of the ‘improvers’ were not realized. It seems that the flood water which they had considered the moor’s chief bane may have given it what fertility it possessed. Instead of the land becoming worth some 30s or 40s an acre, as Arthur Young had predicted, it was considered dear, some ten years after enclosure, at 5s an acre. Also the vast amount of hedging, ditching, and major drainage operations involved made it one of the costliest of parliamentary enclosures, and only the large landowners could afford to take up their allotments.

 

Enclosure in many places led to anti-technological Luddite riots. And significantly, it was not long after that, in 1832, England had its landmark Reform Act, extending the franchise to all able-bodied men worth £10 regardless of landownership, increasing the electorate 50%, a critical step in England’s millennium-long evolution toward full democracy.

 

In the late Victorian Era, Thomas Hardy endlessly romanticized the poor-but-hardy farmer in The Return of the Native, Far from the Madding Crowd, and The Mayor of Casterbridge.

Don’t let them enclose the common, won’t you?

 

Back in Hingham, we hear echoes of this emotional bond to land-tenure-in-common in the neighbors’ voices:

Memories of Little Beach run deep in Crow Point. O’Connell recalls swimming at night there as a teenager. In the 1930s, neighbors organized a Crow Point Community Club, whose members built a wharf in the 1960s, where children dove. Next to the wharf was the beach, where residents soaked in sun.

“It’s a nice place to put down a lawn chair and sit for a while or just take your kids exploring,” said Mark Patrolia, who has lived in the neighborhood since 1988.

Neighbors said a lawsuit was their only way to ensure access for years to come.

The litigation has taken its toll on everyone in the neighborhood:

 

The Stimsons have spent $100,000 on the lawsuit, which has involved research into 19th-century land deeds [Presumably for questions of easement. – Ed.] and paying expert witnesses, one of whom reviewed the technical meaning of the word beach yesterday in court.

Normally, legally “beach” means the space between mean low water to mean high water, although there are much more expansive ones.

Is the answer to be found in private litigation?

 

“This has been a total nightmare,” Cynthia Stimson said.

A ruling in the case by Judge Alexander Sands [Sands! — Ed.] is expected sometime in the next several months.

 

 

Are the sands of time running out for the beachcombers?

In the meantime, the Kanes said they are not using the beach, and the Stimsons said they hope to put the fight behind them.

“We love Hingham; we always wanted to move to Hingham,” Cynthia Stimson said. “Believe me, we totally regret it. Don’t ever move to Crow Point, man. Don’t ever move to Crow Point.”

I cannot accept Ms. Stimson’s view. The solution is …

[Continued tomorrow in Part 4.]

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