Property Rights History ....
 

Property rights stem from English common law and the Magna Carta, although there has been an evolution in legal interpretation of those rights since the 1920s. Most of the recent litigation has dealt with the concept of federalism, and more specifically, the Fifth Amendment to the U.S. Constitution. One of the clauses in the amendment refers to "takings"—a requirement that the government cannot take privately owned land for public use without compensating the owner for the value of the land.

The property rights movement first surfaced in the early 1990s with local grassroots organizations made up of individuals seeking to develop their own property, usually by building a home, clearing out trees or brush, or draining a wetland. Many of the landowners had been unaware of federal regulations and permits that could thwart their efforts, such as provisions of the Clean Water Act or the Endangered Species Act. After being prohibited from developing their properties by the federal government, they often joined other frustrated property owners, usually in their area or neighborhood, who were similarly prohibited from doing what they wanted with their land. The "members" of the movement rarely joined a specific, formal organization; more commonly, they shared grievances against the government based on their individual disputes. They would, however, rely upon an organization for legal advice and updates on land regulations that would affect them.

Over the past century, Americans who own property—homeowners, landlords, businesspeople of all kinds, even nonprofit organizations such as churches and charities—have found themselves increasingly entangled in a web of regulatory restrictions that have limited what they can do with their property. Imposed in the name of an amorphous "public interest," those restrictions have often been unwarranted and severe, resulting in untold personal and financial losses. By century's end they had led to the birth of the property rights movement and to a call for both legislative and judicial redress. The movement is likely only to grow in the 21st century.

America's founding principles are grounded in the idea of private property. It is property, after all, that enables individuals and organizations to exercise their other rights and enjoy the liberty that property affords. With the rise of the regulatory state during the Progressive Era, however, those rights were increasingly compromised, especially after the Supreme Court upheld restrictive zoning in 1926. That decision opened the door to a host of "permitting" regimes—federal, state, and local—the effect of which has been to tell owners that they can use their property only after they have been authorized to do so by government. That placed immense and often arbitrary power in the hands of government, leaving owners to face a long and expensive series of procedural and substantive hurdles before they could enjoy their property rights. Although the Court has checked some of those restrictions in recent years, owners still bear the brunt of the burden of justifying their rights.

To try to address those problems, at least 23 states have enacted laws to protect private property rights. While most require government agencies simply to "assess" whether their actions might impinge on property rights, a few provide for compensation to owners. At the federal level, Congress has considered three forms of legislation: measures that would require such assessments; measures that would provide statutory compensation for certain federal agency actions; and measures that would remove procedural roadblocks that frustrate efforts by owners to challenge federal, state, and local regulations of property. To date, however, none of those federal efforts has succeeded.

For the property rights movement to be effective it must adopt a principled approach. It must reunite America with its common law and constitutional heritage, which affirms that individuals have rights in their property and property in their rights. Finally, it must recognize that the ultimate protection for private property will be found in reducing government to its legitimate functions.

Real property differs from other personal property in the sense that it is immobile, so the acquisition of land is really the acquisition of rights. The sum of these rights today, also known as the “bundle of rights,” define a person’s interests in land. These include the following: the rights of use, occupancy, cultivation, and exploration; the rights to minerals (including the right to extract them); the rights to sell or assign interests in land (such as in the case of selling timber); the rights to license or lease; the rights to develop, to devise, and inherit; the rights to dedicate, give away, and share; the rights to mortgage and exercise a lien; and the rights to trade or exchange land. Notwithstanding this list of rights, our interpretation of the bundle of rights is intended to be inclusive. That is to say, even rights that are not specifically described, such as the right to pick berries, is implicit. However–and this is a key point, the very substance of the debate about private real property rights–the exercise of the bundle of rights is subject to limitations the state may impose for the sake of protecting the public’s interests.

Private property rights are not absolute. In the U.S., public authorities have reserved essentially the same rights as those originally reserved by the King. In exchange for the state’s willingness to defend an owner’s property, it reserves interests in those lands, including the right to tax land; the right to take land for public use with just compensation (also known as “eminent domain”–sort of sounds like the King talking, doesn’t it?); the right to control use to ensure protection of the public’s interests; and–when an owner dies without a will and no known legal heirs–the right of escheat, i.e. to take possession of the land. In the U.S., states also own wildlife that inhabits private lands, much as the King reserved the rights to wildlife on lands of his kingdom.

A landowner can harvest wildlife but only with a proper license from the state and during the appropriate season. Rules about game licenses vary by state, but the point is that no one but the state owns wild animals until they have been harvested. It is not too surprising that most of the debate about private property rights is on deciding when the public’s interests are at stake, what constitutes a “taking” or rights, and how to figure “just”compensation. For example, does a landowner have he right to install a hazardous-waste processing facility? Probably not, but the answer depends on the extent to which the public is protected from any negative impacts that might result from this decision. If the answer is no, does this constitute a “taking “ of the owner’s rights? And if so, what is “just “compensation for denying these rights?

More likely, the situation is reversed: the state offers to buy land for such a facility. If the owner refuses to sell, the state condemns the current uses of the land and exercises its right of eminent domain (in the name of public welfare, of course). What is just compensation for a taking in this instance? Not what you would expect. Most often, compensation is limited to reimbursing the owner for the value (and future value) of the land’s current use. If it is hay land with a beautiful view, just compensation covers the value of the land for hay, not the potential loss from selling the land as a future home site. Federal, state, and local laws can change the way people use their lands, but most often these statutes are intended to protect current uses while avoiding property conversions that might prove costly for the community in the future. It is ironic that many of the people who complain the loudest about erosion of private property rights are the ones who invariably want to retain the option of selling out to the highest bidder, for whatever use, and regardless of the cost to others in the community.