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Saturday, December 11, 2010

The Blizzard and the Frozen Property Professor: A Call for Perspective

Saying it's snowing here in Minnesota today would be akin to saying Richard Posner writes.  I just emerged from my driveway looking like Shackleton on a bad day.  Naturally, while encased in snow and ice, with hair and beard and moustache actually cracking each time I moved, my thoughts turned to property.

In particular, my thoughts turned to property as I stood, exhausted but triumphant at the end of my driveway, and saw the gigantic yellow snowplow rumbling down the street.  Toward me.  Toward my newly liberated real property.  Pushing a 6 foot tidal wave of snow.

Surely, what was about to happen must be unlawful, I thought.  My mind worked feverishly:  trespass.  The government can't simply dump a tidal wave of snow onto my real property, can it?  But then I remembered: emergency services.  No right to exclude.  OK, but if the government needs to occupy my property for the benefit of the public, that's a taking, right?  Sure, one day the snow will melt, so it's not a permanent occupation, but hey -- here in Minnesota, it's close enough.  But, of course, I receive some significant reciprocal benefits from the street being plowed.  It's a balancing test.  I considered yelling, "Wait! It's a balancing test!" at the driver, but it was too late.  I was buried to my thighs in a new pile of snow.

My 7 year old daughter has a birthday party to attend, so I started to dig again, cursing the truth that in the end, property rights depend on the power to enforce them.  Back inside, liberated once more, and re-gaining my balance enough to realize there's no taking, or any other type of claim, I found a message waiting on the phone: party cancelled.  And as I sit here typing this, the snowplow just went by again.

Serenity now!

Mark A. Edwards

Update #2: Perspective achieved. 

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For a recent decision from another snowy state, Vermont, affirming dismissal of trespass and takings claims on facts very close to the experience of Mark Edwards, see the Ondovchik Family Ltd. Partnership v. Agency of Transp.,
996 A.2d 1179 (Vt. 2010).

John Echeverria
Vermont Law School

Posted by: John Echeverria | Dec 13, 2010 6:18:50 AM

That's wonderful, John! Thanks for that. It doesn't sound to me like the plaintiff is the type to give up easily -- I wonder what will happen next.

Posted by: Mark A. Edwards | Dec 13, 2010 7:25:10 AM

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