What is land? How could every piece of property be private?


Evan

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Calvin wrote:

Evan, the dominant capitalist theory of property is homesteading--first use, first own.

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I certainly agree. And I also agree with Ba’al when he said, “. . . bring men and arms to defend your claim against nay-sayers.”

This would be true with any accidentally, anarchic territory. Which is why the first homesteaders always, ALWAYS, try to establish the rule of law to support individual rights. Only seemingly educated civilized dilatants and thugs want any sort of supposedly, “rational, planned Anarchy.” They are delusional Nietzschean supermen. They are prudent predators.

Michael Marotta wrote:

Long ago, in The Market for Liberty, the Tannehills attempted to answer the question, "What happens if two people land on opposite sides of an asteroid and later discover each other?" It's been known to happen, though not yet on asteroids. Think of patent law.

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Very insightful. Mr Marotta, George H. Smith and, Adam Selene are three residents (along with my own Dad, now deceased) who espoused Rational Anarchism so I will exclude them from my derogatory terms.

First use, first own or the doctrine of “Coming to the Nuisance” which can more rationally supplant zoning are also valid Objective theories. Here is an old letter I saved.

Robert Campbell wrote:

As one of my brothers puts it, "Zoning delays the inevitable on behalf of the connected."
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Damn that is good. I certainly agree.

Daunce replied:

As when land is zoned for foxhunting so that the unspeakable can pursue the inedible...

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That’s two great quotes I will use at the next public hearing. They may throw me out.

The “Coming to the Nuisance” Doctrine (I will abbreviate it CttN) would be a logical exchange for zoning laws. However, there are still a few applications of the doctrine that need to be expanded upon. How would the change over from zoning to CttN affect current land owners? CttN in its definition states that the owner has a right to use their property in the current way indefinitely, but it has been said that the victors write history. Would conniving, larcenous people concoct the history or be able to bribe the history writers? As Robert’s brother’s quote illustrates “money talks,” and as Barack Obama might add, “and poor folk walk.”

How can anyone from memory, describe how a property was used but has now changed? A verifiable history of all property within a jurisdiction would be needed.

Wilens wrote in his article:

. . . when uses of two properties conflict with each other, the use which has priority is the one started first, and the owner has the right to stop others from interfering with this prior use (the “first in time, first in right” rule).

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What would CttN do to stop interference with prior usages, already contested in the courts? More lawsuits? I can image the Hatfields and McCoys types of feuds occurring without a one hundred percent accurate history of land usage.

Wilens wrote:

This would necessarily involve figuring out which property owners might be affected by a proposed project and what uses these owners are already making of their properties, so that the developer can design his project to be compatible with these uses. (Unfortunately there isn’t space to go into the mechanics of this here; it will have to be the subject of future work.)

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Verifying the land usage of surrounding land owners, perhaps through prior documentation is fine if there is a paper trail along with computer records. Isn’t this process the equivalent of zoning?

Wilens wrote:

This is because the government would not be able to tell anyone how to use his land prior to the creation of a nuisance.

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Excellent point. I am liking this concept more and more.

Wilens wrote:

This is because decisions regarding land use will no longer be in the hands of the government but rather will be handled by the owners of the property to be developed.

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Amen. Of course, CttN rights can be sold by the first nuisance to the second nuisance, because contracts would always be legal, but please call it something else than Coming to the Nuisance. “Gay marriage” (on the ballot in Maryland in 2012) could be called something else yet equal rights under the law would still exist. The definition of Marriage has already existed so keeping it as a union between a man and a woman would be its own sort of coming to the nuisance.

Wilens wrote:

Unfortunately, this is not the present state of American law. Although it is still used in nuisance cases, Coming to the Nuisance is not regarded as an absolute, but rather as merely “one factor among many” by the courts . . . For example, courts today very often determine the rights of property owners in nuisance cases not solely by who started his use first, but rather by factors such as the “trend of development in an area” — meaning that, if there is a farm or factory in an area that previously was agricultural or industrial but which is becoming residential, the government will force the farmer or factory owner to shut down.2 This opens the door to unjust decisions in nuisance cases, and provides an excuse for government intrusions on property rights such as zoning.

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And this is where zoning becomes the initiation of force in the form of coercive judgments. Not only is zoning “agenda driven” as with the environmentalists, it is also bribe money driven. A local example would be Ocean City, Maryland where businesses, the town council and the mayor seem to call the shots in the county seat. There are two main access roads to Ocean City. From the west is Route 50 which connects Baltimore and DC and from the north Routes 13 and 113 which connect Ocean City with Philadelphia’s vacationers. As these routes approach Ocean City they are considered “corridors” which must provide few businesses and services, no new billboards, and any new business supposedly being considered for a permit must jump through hoops until they finally just give up their due diligence and go home.

My family is having trouble selling one property and two others are nearly ready to be sold after a pipeline company’s lease runs out. We are down to one billboard. If for any reason you drop the Clearchannel lease for a billboard you will not get another. If you have a billboard on the property any new business can only have a dinky little sign advertising their business. We lopped off three acres with the sign and it is now A-1 Agricultural but it could be used for parking or storage and a potential business could put up a better sign. This is totally unfair and a violation of our rights. To top it all off, we have had ongoing eminent domain issues with the fascists in Annapolis and Baltimore.

I have been given it a lot of thought and I truly believe David Wilens is on to something. I cannot think of any other way to stop the encroaching wall of zoning except the doctrine of Coming to the Nuisance.

Peter Taylor

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I was talking with a friend about Capitalism yesterday, I am very for it and they seem to have a mixed liberal perspective on the matter. She said, "not every spot of land can be private," which really got me thinking. I don't know enough about how land is originally acquired at the start of a country, and what a country really is. In a Capitalistic society, what would happen to every mountain or stream that simply is not owned by anyone? Could you "settle" there and claim it as your own? I am very confused on this matter and would appreciate any knowledge.

Hi Evan,

First of all, the notion of land property is complex, so it's easy to get distracted from fundamentals when it comes to land. So, let's go back to simpler forms of property, first. I'm guessing you have a pretty good grasp of the fundamentals, but it doesn't hurt to review them.

There are basically two legitimate ways to acquire property rights to an object, by creating the object or acquiring it through trade. Creating it is a two step process. The first step is to acquire the raw materials and the second is to form those materials into the object that is being created. If no one has a claim of ownership on the raw materials, then they may simply be collected. Then, the object can be created. In the words of John Locke, a person "mingles" his effort with the raw materials and, by doing so, acquires a right to the object so created.

Creation of the final object may be a simple or complex process. A clay pot may be created by simply scooping up some clay, forming it into a pot and allowing it to dry in the sun. In some sense, simply collecting the raw materials amounts to mingling one's effort with them. The materials may have been widely dispersed and by expending one's effort to bring the materials together in one place, one has mingled one's effort with the raw materials.

Now, it is right that man live by productive effort --- in fact it is impractical for man to live by any other means --- and it is impossible to live by productive effort unless one can control the product of one's effort, therefore a person has a right to the product of his effort which is therefore his property. That is the meaning of property --- that which one controls by right.

Now, things start to get complex when one considers the various kinds of actions that one can perform on or with a certain object. Since a right refers to an action, such as the right to use some object or the right to dispose of some object, it may be the case that a person has a right to perform certain actions with an object but not others. For example, if one owns a book one might have a right to read the book and a right to dispose of the book, but not have a right to copy the book. The copyright was not purchased at the time to physical book was purchased. Similarly, if one were to rent a car, one would purchase the right to use the car for a certain, limited, amount of time. Of course, in this case, we wouldn't say that the renter owned the car, but it follows the pattern that certain rights to an object can be traded while other rights are retained by the original owner (or may not exist).

That brings us to land property. In a free society, if there is unowned land, one may acquire it by mingling one's effort with it. At a minimum, that is usually taken to mean building a fence around it. By building a fence, the acquirer has made an improvement to the land which may make it more valuable to him --- that is, which may help him to thrive. Or, for example, he might clear the land and grow crops on it.

So far, the concept of land property is not that complicated. However, the complexity arises when one considers possible side issues. For example, the land might have a path running through it that travelers typically use to get from one place to another. Or, the land might have a river or stream running through it. And, there is little doubt that the land is in contact with the air.

Why are these considerations important? Because, while one might acquire the rights to do certain things with the land, one might not acquire the right to engage in every conceivable action with the land. One might not have a right to block the travel of other people across the land. If a trail existed before a farm, then a claim of a property right in the land should not supersede the claim of travelers to the right of freedom of movement. A court will sometimes grant an easement to other people across a piece of private property in order to preserve their rights. One might not have the right to pollute the river that runs through the land. If there were people living downstream using the river for irrigation and drinking water, then they would have a prior claim to unpolluted water. These types of issues are sometimes resolved in practice through the existence of water rights, e.g., senior and junior water rights. One might not have the right to pollute the air. If there were other people living nearby, they would have a prior claim to clean air.

Libertarians like to lump all such rights under property rights, but in my view the situation is much simpler. People have a right to live, unmolested by other people, whether the form of the assault is overt violence or an involuntary violation of the conditions required to thrive.

Darrell

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just as a historical note, the initial settlements of north america in 17 century, the virginia company used to grant pieces of land to english bondservants after serving their 7 year term, the land which was granted to them by the crown, which at some point was from east to west coast and every inch in between...

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