PropertyProf Blog

No Public Trust for Birds in California?

     Altamont Pass, a windy ridge in the east bay portion of the San Francisco bay area is the site of many wind turbines.  In addition to generating energy, those turbines kill around 1,000 eagles and hawks each year, and from 800 to 3,000 other birds annually.  Two years ago the Center for Biological Diversity sued the turbine owners and operators in California state court under California's unfair competition law and the public trust doctrine, in an attempt to stop these deaths.  In mid-October a state trial judge dismissed the complaint as to all causes of action.  The trial judge reasoned that, under California's unfair competition law a plaintiff is required to show personal harm to his property to have standing.  Because the harm alleged was to all Californians via their public trust ownership of the birds, standing to assert the unfair competition claim was absent.  The public trust claim fared no better.  The judge narrowly construed the doctrine to apply to waters, rather than include within the doctrine all unowned natural resources enjoyed in common. 

     A press release from the Center of Biological Diversity provides more information.  Here is a  news article about the decision.  A link to the press release by the law firm representing the turbine operators is here.  A wind energy industry site with links to various issues concerning birds and wind turbines is here.  The complaint is here.  I'm trying to get a copy of the judge's ruling and opinion, which I will post when I obtain it. 

Calvin Massey

Happy Halloween

Well, it's Halloween and that means it's time for a little fun at propertyprof.  I'll begin with one of the most amusing law review articles I've ever read: James Gordon's "How Not to Succeed in law School," which appeared in the Yale Law Journal in 1991.  My favorite line among many good ones:

Just to prove that at heart they are really gentle, fun-loving people, professors will occasionally do something a little bit zany, like wear a costume to class on Halloween. This makes the students laugh and cheer. Before you laugh and cheer, however, you should check your calendar. It is often difficult to tell whether a professor is wearing a costume or not.

Of course, propertyprofs all know Stambovsky v. Ackley, 169 A.D.2d 254, 258.  Ah, what a great case.  (You may recall this entry from summer 2006 on psychological defects.)  And, along these lines, you might also enjoy Judith Richardson's book, Possessions, on the haunted landscape in the Hudson Valley.

You might find Gates v. Roberts, 350 S.W.2d 729 (Mo. 1961) of some interest, because it's about adverse possession of a house reputed to be haunted back in the 1930s.  Nice case of squatters establishing a right to a house.

Then, going back a bit further, William Sampson argued to the New York Supreme Court in 1810 that the common law ought to evolve.  He pointed out that a number of states had abandoned English law.  Then he contrasted old, superstitious the common law with the modern, American law.  Those efforts to abolish the old common law would have been in vain,

if ever and again some unsubstantial specter of the common law were to rise from the grave, in all its grotesque and uncouth deformity, to trouble our councils and perplex our judgments. Then should we have for endless ages the strange phantoms of Picts and Scots, of Danes and Saxons, of Jutes and Angles, of Monks and Druids, hovering over us like "ravens o'er the haunted house" or ghosts "That inglorious remain Unburied on the plain."  In vain would this country advance in commerce, this and industry; in vain science and philosophy make their abode among us; in vain propitious heaven designate with a favoring hand our station on the globe, and distinguish us by freedom and prosperity, if we mar our own destiny by such servile adherence.

Never know where images of witchcraft will appear in conjunction with the common law, do we?

Maybe next year for Halloween, I'll link to some ghost stories where property is important.... Then again, maybe I'll try to figure out John Dryden's role in William Sampson's thought....

Endnote:  The image of the St. James Hotel in Selma--which looks like it might be haunted! and is rumored to be (nice article from the Selma Times-Journal, one of our nation's oldest newspapers)--comes from our friends at the Library of Congress' Historic Buildings Survey, conducted during the 1930s.  Check out their website for some great photographs.  They're a source I often use when looking for public domain illustrations for propertyprof entries.

Alfred L. Brophy
Comments held for approval, so they will not appear immediately.

Roger Pilon on the Kelo Ballot Initiatives

Roger Pilon writes in the LATimes on ballot initiatives designed to respond to Kelo. His article begins:

NEXT MONTH, in 12 states, including California, voters will get a rare chance to talk back to the Supreme Court. Those are the states with measures on their ballots to protect property rights, sparked by the court's 2005 Kelo decision, which lets government condemn a person's property and give it to someone else who can make "better use" of it. In an instant, Americans across the country woke up to the realization that, as Justice Sandra Day O'Connor wrote in dissent, "The specter of condemnation hangs over all property."

To date, 30 states have enacted measures to restrain their power to condemn, and citizens have stepped in where legislatures have balked, placing initiatives on the ballots. Despite intense opposition from the powers who benefit from the status quo, these initiatives are doing well in the polls because they're tapping into a bedrock American principle: the right of everyone to own and enjoy property.

You can read the entire article at this link.

Rick Duncan

[Comments are held for approval, so there will be some delay in posting]

Why YouTube Might Not Have Infringement Problems

Tim Wu (Columbia Law School) has a great post on Slate explaining why YouTube isn't likely to go the way of Napster.  This issue came up during my short tour through IP law in my Property class; if you cover this stuff, it might be worth directing your students to Wu's post.

Ben Barros

[Comments are held for approval, so there will be some delay in posting]

Possession as the Root of Title

Over at How Appealing, Howard Bashman reports on a recent 4th Circuit property case (excerpt):

"That possession is nine-tenths of the law is a truism hardly bearing repetition. Statements to this effect have existed almost as long as the common law itself." A unanimous three-judge panel of the U.S. Court of Appeals for the Fourth Circuit today issued an opinion that begins, "This case concerns the ownership of papers from the administrations of two governors of South Carolina during the Civil War."

In that opinion, written by Circuit Judge J. Harvie Wilkinson III, the Fourth Circuit affirms a federal district court's ruling that the State of South Carolina "failed to establish that the papers constituted public property under South Carolina law of the Civil War era." As a result, a man who, according to today's opinion, "found the papers in 1999 or 2000 in a shopping bag in a closet at his late stepmother's home" retains ownership of the documents.

More discussion and more links at How Appealing here. This is the same case Al just posted about.

Rick Duncan

[Comments are held for approval, so there will be some delay in posting]

Civil War Era Letters and Presumptions about Property

Carl Christensen brought Judge Wilkinson's opinion in Willcox v. Stroup to my attention.  It's destined for the first year casebooks.  It revolves around a dispute over who has title to a set of several hundred documents from the administrations of South Carolina governors Francis Pickens (1860-1862) and Milledge Bonham (1862-1864).  The papers had been in the family of Thomas Law Willcox since probably 1865 when his great-great-uncle, a Confederate general, seems to have taken possession of them around February 1865, in advance of General Sherman's attack on Columbia, South Carolina.

The papers, then, were in possession of Willcox and his ancestors for more than 140 years (though in the 1940s they were microfilmed and a microfilm copy was put into the UNC's library, so that they've been available to researchers for decades).  In 2004, as the plaintiff was circling the rim of bankruptcy, he offered them for auction, which attracted the attention of the South Carolina archives.   South Carolina obtained a preliminary injunction against the sale.  Subsequently a bankruptcy judge concluded that the papers belong to the state.  A district court reversed that finding.

Judge Wilkinson resolves the case by concluding that the state of South Carolina failed to meet its burden in showing that it ever had a property right in the papers.  (He rested in part on the adage that "possession is nine-tenths of the law" and then asked South Carolina to overcome that presumption.)  Pretty interesting stuff here. 

I wonder, though, whether a better resolution would have been to leave title to the papers in theplaintiff on adverse possession.  Wasn't South Carolina on notice since the 1940s about the existence of the papers--and even who held them?  I think it's harder to go back and make a statement about the law of South Carolina on ownership of papers prepared by governors than to say South Carolina's claim is barred by adverse possession.

I'm always pleased to see cases that support property rights that vested generations ago.  Reminds me in a lot of ways of the United Daughters of the Confederacy v. Vanderbilt University, another case on which I hope to have something more to say soon.  As I say, I think this one's headed for the casebooks.

Endnote: The illustrations are of Governor Pickens and Governor Bonham.

Alfred L. Brophy
Comments are held for approval, so they will not appear immediately.

Welcome to the Blogosphere: Essentially Contested America

My colleague Bobby Lipkin has just started a new blog, Essentially Contested America.  Knowing Bobby, I'm sure it will be a very interesting and thought provoking read!

Ben Barros

[Comments are held for approval, so there will be some delay in posting]

CCELP Analysis of Proposition 90

The California Center for Environmental Law and Policy has done an analysis of California's Proposition 90, a proposed amendment to the California Constitution that contains a Kelo-backlash public use limitation and a Measure 37-type regulatory takings compensation provision.  The public use limitation isn't very well worded, but seems okay to me.  The regulatory takings compensation provision is a disaster.  As I've noted here before, I'm not a big fan of regulatory takings legislation that sets a low bar on the level of diminution required for compensation.  My bigger problem with Proposition 90 is that the regulatory takings provision is very subtle and is wrapped up in language talking about eminent domain abuse and Kelo.  I doubt that even sophisticated voters are going to understand what they are voting for or against here.

Ben Barros

[Comments are held for approval, so there will be some delay in posting]

Kettles on Formal and Informal Allocation of the Commons

Gregg Kettles (Mississippi College School of Law) has posted Formal Versus Informal Allocation of Land in a Commons: The Case of the MacArthur Park Sidewalk Vendors on SSRN.  Here's the abstract:

Sidewalk vendors are becoming a more common presence in cities in Latin America and the United States. Vendor demand for the best sidewalk vending spots increasingly exceeds supply, making necessary a system to allocate space in what is essentially an open access commons. This paper presents an empirical study of two very different systems of allocation that have been adopted in the city of Los Angeles, California, a formal one imposed by the city on legal vendors when they were unable to come up with one on their own, and a second that was embraced by illegal vendors across the street on an informal basis. The fact that illegal vendors were able to adopt any system at all, while a handful of legal vendors were unable to when given the same opportunity, is not what would have been predicted by social norms scholarship. Nor can it be attributed to the activities of local street gangs. Instead the respective success and failure of these two groups of vendors are best explained by Robert Sugden's game theory of spontaneous order. Turning to their relative merit, the illegal vendors' system of space allocation is superior, enjoying as it does a number of efficiencies. By contrast, the city's formal system suffers from a number of costs. It seems intent less on benefiting the community as a whole than on protecting storefront merchants from legitimate competition.

Ben Barros

[Comments are held for approval, so there will be some delay in posting]

Tate on Ownership and Possession in the Early Common Law

Joshua C. Tate (SMU - Dedman School of Law) has posted Ownership and Possession in the Early Common Law on SSRN.  Here's the abstract:

Much has been written on the possible influence of Roman or canon law on the early English common law of property. Maitland thought that the canonist's actio spolii was the inspiration for the assize of novel disseisin. Sutherland argued that the assize borrowed from the Roman interdict unde vi. Milsom, by contrast, thinks that the early common-law writs must be understood within a feudal framework, and that the early common law took nothing from Roman law than the Latin language.

This Article offers a new perspective on ownership and possession in the early common law. It examines the theoretical development of proprietary and possessory concepts in the ius commune as it would have been understood in England in the late twelfth century, taking into account the Liber pauperum and the early ordines as well as reports of ecclesiastical court cases. After surveying the current debate, the Article then turns to the advowson writs, which have not yet been studied as a possible example of Roman law influence. Finding some evidence of the ownership/possession distinction in the advowson writs, the Article comes to the conclusion that the possibility of influence from the ius commune is greater than Milsom thinks.

Ben Barros

[Comments are held for approval, so there will be some delay in posting]

Welcome Back, Rick

As noted in the post immediately below, Rick Duncan will be posting regularly here on (among other things) religious land use issues.  We're delighted to have him back after his great visit of a few weeks ago.

Ben Barros

[Comments are held for approval, so there will be some delay in posting]

First Amendment Center Defends Religious Exemptions In Response to NY Times

Over at the First Amendment Center, Charles Haynes responds to the recent NY Times series that expressed concern about the legitimacy of religious exemptions from regulatory restrictions. Here is a key excerpt:

The village of Suffern, N.Y., treats Orthodox Jews just like everyone else — and that’s why it’s being sued by the U.S. Department of Justice for religious discrimination.

Equal treatment, it turns out, sometimes keeps the faithful from practicing their faith.

Orthodox Jews, for example, can’t drive on the Sabbath or other holy days. So a Jewish service agency in Suffern built a “Shabbos House” across from the hospital, giving believers a place to stay while visiting patients (the nearest hotel is more than three miles away).

But since the Shabbos House is in an area zoned for single-family homes, the Jewish group requested — and was denied — a zoning variance. Now both the Jewish agency and the federal government have filed suit, claiming the denial unlawfully burdens the Jewish community’s free exercise of religion.

The Suffern conflict is one of many similar disputes across the country. Last month, for example, the 6th U.S. Circuit Court of Appeals heard oral arguments in a case involving the Okemos Christian Center. The church wants to build a larger structure to hold an expanding congregation, but it can’t because of zoning restrictions in Meridian Charter Township, Mich. Although the church prevailed in a lower court, the town appealed the decision.

Cases like these are part of a growing national debate over religious exemptions to laws and regulations concerning everything from zoning to taxes. What critics (including many local officials) disparagingly call “special treatment,” religious groups describe as needed protections for religious freedom.

Although the Times editors believe that the NYT "series showed that the wall between church and state is being replaced by a platform that raises religious organizations to a higher legal plane than their secular counterparts," religious exemptions from restrictive laws actually protect the wall between church and state by ensuring that the state cannot breach the wall to impose substantial burdens on religious freedom. As Haynes puts it, the Times and other critics may call it "special treatment," but "our Framers called it religious freedom."

With Ben's kind permission, I will be serving as a kind of roving religious land use reporter for PropertyProf for the foreseeable future. I look forward to this assigment.

Rick Duncan

[Comments are held for approval, so there will be some delay in posting]

CSM on Takings Initiatives

The Christian Science Monitor has a thoughtful commentary piece on takings initiatives that, among other things, comes down against "regulatory taking" initiatives like Oregon's Measure 37.  Thanks to John Rooney for the tip.

Ben Barros

[Comments are held for approval, so there will be some delay in posting]

Clowney on Churches and Zoning

Stephen Clowney (Yale Law School) has posted An Empirical Look at Churches in the Zoning Process on SSRN.  Here's the abstract:

Using data from New Haven, Connecticut, this study attempts to examine empirically whether churches face discrimination in the zoning context. Specifically, in this paper I scrutinize local government records to determine whether religious institutions are treated fairly in the zoning appeals process. This study contributes to the ongoing discussion over the regulation of religious land uses by answering two questions. First, to what extent does the Board of Zoning Appeals treat churches differently from secular applicants? Second, are there disparities between the fates of small religious sects and mainstream denominations in applications for zoning exemptions? My research casts some doubts upon the dominant narrative, which suggests churches have been routinely victimized by local zoning boards.

Ben Barros

[Comments are held for approval, so there will be some delay in posting]

Glaeser and Ward on Land Use Regulation

Edward L. Glaeser (Harvard - Kennedy School) and Bryce Adam Ward (Harvard University) have posted The Causes and Consequences of Land Use Regulation: Evidence from Greater Boston on SSRN.  Here's the abstract:

Over the past 30 years, eastern Massachusetts has seen a remarkable combination of rising home prices and declining supply of new homes. The reductions in new supply don't appear to reflect a real lack of land, but instead reflect a response to man-made restrictions on development. In this paper, we examine the land-use regulations in greater Boston. There has been a large increase in the number of new regulations, which differ widely over space. Few variables, other than historical density and abundant recreational water, reliably predict these regulations. High lot sizes and other regulations are associated with less construction. The regulations boost prices by decreasing density, but density levels seem far too low to maximize total land value.

Ben Barros

[Comments are held for approval, so there will be some delay in posting]

Liberal Theories of Property Part III

This is the third in a series of posts on theories that tie property rights to individual freedom.  The first two posts discussed work by Charles Lindblom and Charles Reich, neither of whom can be described as pro-market or libertarian.  Both descriptions fit the subject of today's post, Milton Friedman (though Friedman would prefer "liberal" to "libertarian").  The first chapter of Friedman's Capitalism and Freedom (1962) contains one of the classic articulations of a liberal theory of property.  Like Lindblom and Reich, Friedman discussed the role of property in securing an individual's ability to act independently of the state:

In order for men to advocate anything, they must in the first place be able to earn a living.  This already raises a problem in a socialist society, since all jobs are under the direct control of political authorities.  (At 16).

For advocacy of capitalism to mean anything, the proponents must be able to finance their cause – to hold public meetings, publish pamphlets, buy radio time, issue newspapers and magazines, and so on.  How could they raise the funds?  There might and probably would be men in the socialist society with large incomes, perhaps even large capital sums in the form of government bonds and the like, but these would of necessity be high public officials.  (At 17).

A key additional element of Friedman's theory was the observation that property promotes political freedom by separating economic power from political power:

Viewed as a means to the end of political freedom, economic arrangements are important because of their effect on the concentration or dispersion of power.  The kind of economic organization that provides economic freedom directly, namely, competitive capitalism, also promotes political freedom because it separates economic power from political power and in this way enables the one to offset the other.  (At 9).

Political freedom means the absence of coercion of a man by his fellow men.  The fundamental threat to freedom is power to coerce, be it in the hands of a monarch, a dictator, an oligarchy, or a momentary majority.  The preservation of freedom requires the elimination of such concentration of power to the fullest possible extent and the dispersal and distribution of whatever power cannot be eliminated – a system of checks and balances.  By removing the organization of economic activity from the control of political authority, the market eliminates this source of coercive power.  It enables economic strength to check the political power rather than be a reinforcement.  (At 15).

Next up:  Hayek.

Ben Barros

[Comments are held for approval, so there will be some delay in posting]

Brown University's Steering Committee on Slavery and Justice Report

This afternoon, Brown University's Steering Committee on Slavery and Justice released its final report.  The report is available here.  We're been following the story at Brown for a while.  I'll have a few more thoughts after I read in detail the lengthy report, but I have a couple of quick observations.  First, I think Brown will serve as a model for future investigations by schools, as well as businesses, of their connections to slavery and Jim Crow.  I expect that a number of schools will turn in the near future to the Brown report and then begin to ask about their own histories.  Second, Brown's recommendations are about fairly general actions geared towards social justice, like further discussion of its history and educational scholarships.

UPDATE:  Here's an excellent article from Insiderhighered.com, which discusses some of the implications of the report.  I have some more thoughts on reparations here.

I also have some more thoughts on the Brown report over at ratio juris.

Al Brophy
Comments are held for approval, so they will not appear immediately.

Hicks on the Property Law Frontier

Gregory Alan Hicks (University of Washington School of Law) has posted Memory and Pluralism on a Property Law Frontier on SSRN.  Here's the abstract:

This article explores the limits of legal victory and the problem of legitimacy of legal outcomes. It chronicles the decades-long dispute between Hispano settlers on northern New Mexico's Sangre de Cristo land grant and the succession of entrepreneur owners of the grant in the last decades of the 19th century and the first decades of the 20th century. The dispute occurred on a legal and cultural frontier defined by the transition from Mexican to U.S. dominion in the years following the end of the Mexican War and by the opening of the region to larger scale economic development at the end of the 19th century. The new Dutch and American owners of the grant sought to displace patterns of land and resource use developed during the Mexican colonial period, and suited to the frontier circumstances and subsistence local economy of that earlier period, with patterns of use intended to encourage new colonial settlement and the intensive development of the region's natural resources. In spite of winning every legal challenge to their new ownership, the new entrepreneurs struggled to establish effective control over land and resources to which they held formal title. The resistance of the Hispano settlers produced continual litigation and exacted efforts from the entrepreneurs to appease the sense of right of the Hispano settlers faced with extinction of their customary rights of access to the land and resources. The settlers' resistance, grounded in a sense of right based on the circumstances of their settlement and in an unwillingness to be displaced from their homes, proved enduring, and stymied the efforts of the entrepreneurs to develop the land as they would have preferred. Using correspondence and litigation records, this article reconstructs the dispute between the U.S. Freehold Land & Emigration Co. and its successors and the Hispano settlers, who organized themselves as the Defensive Association of the Land Settlers of the Rio de Costilla. The article situates the Costilla episode as one of several in American legal history where popular property norms diverge from the property rules offered by the legal system. The article is strongly grounded in the specifics of the Costilla dispute, but it uses its sense of locality to explore larger questions about law, dissent, and the challenges that are posed when a legal system is asked to absorb and reflect pluralist values.

Ben Barros

[Comments are held for approval, so there will be some delay in posting]

PLF Conference on Eminent Domain

The Pacific Legal Foundation is organizing a conference on eminent domain that will be held this Friday, Oct. 20, at Chapman Law School in Orange, California:

What: Symposium on eminent domain issues and debate on Proposition 90.  Free to general public. Attorneys may receive 3 CLE units for $15 ($10 for current Federalist Society members).

Where: Chapman Law School, Room 237, One University Drive, Orange, California 92866.

When: Friday, October 20
1:00 p.m. Panel One:  History of Eminent Domain and Current Controversies.

3:30 p.m. Panel Two:  DEBATE on Prop. 90, which, if passed, would restrict eminent domain and other regulation.

5:00 - 7:00 p.m. Reception.

Who:  Assemblyman Ray Haynes, R-Riverside; Gary Patton, Executive Director of Planning and Conservation League; Prof. Gideon Kanner, Loyola Law School; Ken MacVey, Best Best & Krieger; Prof. John Eastman and Prof. Lawrence Rosenthal of Chapman Law School; John Murphy, Rick Rayl, and Paul Weiland of Nossaman Gunther Knox & Elliot; Tim Sandefur, Dave Stirling, and Harold Johnson of Pacific Legal Foundation.

Ben Barros

[Comments are held for approval, so there will be some delay in posting]

Eminent Domain as Motive For Murder

My student David Warner sent me the TV Guide description of last night's CSI episode "Death Eminent":

A city councilman, the swing vote in an important development plan, is stabbed to death in an empty waterfront house. The investigation reveals the homeowners in the neighborhood where the victim was found are being forced to sell their properties so a wealthy land developer can build a hotel on the site. During the probe, another body turns up and Horatio attempts to link it to an old rival. Also, Nick harasses Natalia at the crime scene.

Probably no surprise, but David thought that the show misrepresented how eminent domain actually works.  But hey, cop shows don't let criminal law and procedure get in the way of a good story, so why be accurate about eminent domain.

Ben Barros

[Comments are held for approval, so there will be some delay in posting]