Saturday, December 11, 2010
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.
Mark A. Edwards
Update #2: Perspective achieved.
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