Property rights: Part 2, as the twig is bent
[Continued from yesterday’s Part 1.]
Yesterday, I wrote about dodging acorns and listening to squirrels chirring angrily at one another about their territorial boundaries in our front yard as they bombard us with spent acorns, wax berries, and branches.
That for your property lines!
I connected our little squirrel-human war of the oaks to a dispute in
“This is the trend around the country, as we go from having arbitrary distinctions that made more sense in a rural economy,” said Steven J. Eagle, a law professor and property rights expert at George Mason University law school. “This is a better line of reasoning. The problem is, it probably will result in more litigation.”
Somewhere in what I consider his best novel, my science fiction writing colleague and fellow workshop participant Jim Morrow wrote a great line:
People say science doesn’t have all the answers.
Science does have all the answers. We just don’t have all the science.
The answers will be clear to Morrow
Regarding boundaries, the problem isn’t that the law doesn’t have all the answers, it’s that opening up dimensionality and interdependence means we don’t have all the law. We’re going to have to forge it. Interdependence renders the old simple-fence boundary basically useless.
“Will there be people who will use this as a cudgel in a battle of spite against neighbors? Sure.”
Erik Saunders, a certified arborist, said tree quarrels are among the most common disputes he has seen in his 21 years in the business. “It happens all the time,” he said. “And this is a big change. It’s going to set in motion more changes.”
Just consider all the ways that three-dimensionality and interdependence make urban environments much more challenging than rural, which include at least these nine:
1. Mapping and enumeration. In concert with the Government of Egypt, USAID is sponsoring a large technical team in mapping and entitling all of
2. Zoning and title. Ever read a title insurance policy? There’s always a page called the survey or the metes-and-bounds, that reads like something out of middle England: “BEGINNING AT A POINT … and proceeding north by such-and-such, then northeast by so much, and then …” On and on it rolls, in stirring formal prose:
North by ten and by ten,
east by five and by five,
south by two and by two,
west by one and by one,
and so under.
Just like in the Musgrave ritual, who owns the space below?
Descriptions of entitling that involve a third dimension loses that grace and song.
3. Easement. The working presumption of title is that a piece of land abuts onto public space (like a road) that provides access, egress, and utilities. When we get into the third dimension, easement by definition runs across someone else’s property (as in a condo’s common spaces, or its building systems) with sharing of costs. Shared costs lead to free-rider and enforcement problems, as any condo or co-op board knows.
4. Intrusion rights. Normal property disputes have long recognized that the wind blows where it will, so we tussle over acid rain, or even the
How much more difficult is this in a vertical environment. Odor knows no boundaries, and is basically unblockable. Anyone who’s ever visited a large apartment block knows full well the assault of smells – aromas, odors, flavors, scents, the words are nearly endless, and nearly all judgmental. If they’re merely unpleasant, we tolerate them and hope they go away; what happens when they become noxious?
5. Mineral rights. Properties in
Looks like royalty income to me
6. Riparian rights. Cities consume more fresh water than they produce. As humanity populates the desert and the cities, the need for water becomes ever more acute. (It’s a vital matter for developing nations and, together with sanitation, probably has more influence on global health than any other.) California is locked in an ongoing interstate fight with the states upstream on the
7. Environmental cleanup obligations. Ever since CERCLA (the Superfund legislation), anyone buying or selling urban property has had to be wary of the property’s past use, because anyone who owns land found to be contaminated is in the chain of liability for its cleanup. That by itself would seem worry enough, yet fluids move, underground, at their own pace and in their own direction.
Now imagine this happening underground
Plumes, as they are known, can travel hundred of yards if not miles or more, depositing your neighbor’s problem onto your land, at your expense, via a civil action.
“It’s like this. A dead plaintiff is rarely worth more than a living severely-maimed plaintiff. However, if it’s a long slow agonizing death as opposed to a quick drowning or car wreck, the value can rise considerably. “
As a result, if you are buying property within a quarter-mile of a gas station, you’d really much rather be uphill.
8. Overflight rights. We use the space above property as the highways of air travel, so the question arises: do those above have an intrinsic easement over those below? In
Shhhh … Congress in session
When the mayor comes to address you, you know you have standing
9. Development or ‘air’ rights. Modern zoning not only restricts use, and density, but also height. In the urban grid’s window canyons, sunlight and air are commodities worth money (in rent or sales price), so cities control their allocation in an effort to avoid tragedy-of-the-commons problems. Conversely, I’ve posted before about air rights, which have economic value even if their owner merely renounces them.
Indeed, we can extend the economics far beyond mere high-rises. In his 1938 novel The Man Who Sold the Moon, visionary author Robert A. Heinlein carried the logic to its ultimate when he asked, “Who owns the Moon?” Reasoning that it was owned by those nations over which it passed, he had his fictional billionaire protagonist, Delos David Harriman, but those air rights severally from each nation until, finally, he had a valid claim that he owned the moon.
The moon stays constantly over a slice of Earth bounded by latitude twenty-nine north and the same distance south; if one man owned all that belt of Earth – it’s roughly the tropical zone – then he’d own the Moon, too, wouldn’t he?”
None of these are settled issues, in
The case at Cambridge Station has turned acrimonious, with allegations and defamation-of-character countersuits pending.
That sweet gum tree may be more significant than anyone realized:
And just a few weeks ago — as a jury was about to hear testimony in the Fanchers’ claim for $662,000 in damages on each of four counts of trespass, noxious private nuisance, boundary dispute and negligence — Fagella cut down the old sweet gum tree.
It may be gone, but its precedent remains, and the issues will probably be unsettled for decades.
We haven’t stabilized the situation yet
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