On the beach: Part 4, the civitas
[Continued from yesterday’s Part 3; Part 1 and Part 2 here.]
… to divide land rights and share some in common.
What we have seen, in the small clash between neighbors in a little spit of land in
Now, let’s have a good clean land-use argument.
- The neighbors see the beach as common property, and therefore access to it must be theirs out of common law, in effect an easement of necessity.
- The Stimsons believe their property is inviolable.
What benefits and burdens does ownership of land convey? Normally, multiple ones:
- Use. The right to use it as one sees fit. In urban contexts, subject to zoning.
- Development. The right to construct property for any purpose. Again, subject to zoning.
- Extraction. Ownership of materials found below the surface.
- Passage and prohibition. The right to pass over it, and to prohibit others to pass.
None shall pass the bounds of my domain!
- Local taxation of real property. Taxation and zoning between them define a community’s future.
- Legal exposure for hazards or harms present on the site; from the archetypal slip-and-fall case (”premises liability“) to the removal of hazardous substances.
Your friend the Federal government sues property owners.
Though these rights are usually bundled, in both common law and in jurisprudence they can be subdivided, shared, or compromised: by zoning, by permitting, and by municipal easements.
That’s precisely what we found in England: a waivered right of access, as has been practiced for centuries, with no premises liability to the landowner, and a respect bordering on reverence for the property rights waived, by the common-law concession of easement.
Divided use adds value, as illustrated by the old Yankee story of two sisters fighting over an orange. When finally it had been sliced in half, one ate the pulp and threw away the peel; the other tossed the fruit and used the peel for cooking.
The art of urban living is proximity, and with that comes shared use — of beach, roads, schools, libraries. Good fences do make good neighbors; so do respected commons.
Returning for the moment to the Stimsons’ property, we can see that they do clearly own the land that is in question, and absent a public-easement they are entirely within their rights to close it off.
The potential footpath is clearly demarcated — a linear depression running along the property line — so that a public-way easement could readily be granted. Presumably, as in Lucas and other cases, the Stimsons would receive some compensation, paid for by the town on behalf of all its citizens. The easement would further stipulate that those using the footpath, or for that matter the beach, do so at their own risk and with no liability to the property owner.
And the entry would be blocked by a humble stile sufficient to impede vehicles and animals but not people.
Perhaps the Stimsons and their neighbors can still get to this outcome, especially if they step back from their bitterness and realize the shared interests they all have as neighbors and community members.
And maybe, for everyone involved to be a little more conciliatory than they were at the beginning.
