January 18, 2008
Purpresture: What's that?
I'm working away on "Property and Progress: Antebellum Landscape Art and Property Law" (we've talked about a piece of this before and I'll be blogging more about it in the next few weeks). I'm interested in the law of beacons in the nineteenth century--they're put up sometimes by the community and at other times by corporations. And so I'm interested in the law surrounding this public service.
That's led me to some a word that's new to me (though very old): purpresture. You ever heard of it before? I didn't think so.
Here's it in context, in State v. City of Mobile, 5 Port. 279 (Ala. 1837), a case charging that the corporation of Mobile had improperly narrowed a public street:
The obstruction complained of, besides being a nuisance, is also a purpresture. A purpresture signifies “an inclosure;” and is defined to be, where one “by building, inclosing, or unlawfully using any liberty, encroaches upon a highway, public river, &c. of the King, or of another.” ... Judge Story considers a purpresture to be an encroachment upon public property, held by the sovereign for the use of the public, such as highways, rivers, forts, streets and squares.” “Where one takes that to himself, which ought to be common to many.”- [2 Story's Commentaries on Equity, 201, 202.]
We'll be talking some more about this in the near future.
Endnote: The illustration is John Kensett's Beacon Rock, Newport Harbor, from the National Gallery of Art because beacons are what got me started on this little line of inquiry.
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I wrote about the common law doctrine of purpresture on pp. 33-34 of my book, Pollution and Property (CUP 2002). It's a very interesting and potentially useful mechanism for preventing private encroachments on public property. But American courts at least have always applied it quite narrowly, and it seems to have become moribund.
Posted by: Dan Cole | Jan 19, 2008 5:57:28 AM