September 14, 2022
A word about property rights and freedom
William Appel

A “Private Property” sign asserts ownership in a wooded area, carrying implications about how the land may be accessed and used. (Addshore, CC BY-SA 4.0, via Wikimedia Commons)

September 14, 2022
A word about property rights and freedom
William Appel

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The essays, analyses and opinions presented as Community Voices express the perspectives of their authors on topics of interest and importance to the community, and are not intended to reflect perspectives on behalf of the Salish Current.

In old English common law, private ownership of land included the right to kill intruders. 

Having practiced various aspects of real estate law for over 50 years in Philadelphia, Seattle, Waldron and now in Friday Harbor, I’ve done a lot of thinking about property and what constitutes “ownership,” a legal institution devised to keep the peace and encourage productivity. 

But some things aren’t good subjects of private ownership, which today are referred to as “the commons.” As ecological sciences progress, the definition of the commons expands, the care of which supports our prospects of survival as a species. 

My thinking has been advanced by, among other things, two books that might be of interest to readers.

One of the most brilliant works in my opinion is Elinor Ostrom’s Nobel Prize winning (and readable) “Governing the Commons,” Cambridge University Press, 1990. For those interested in the economic implications of repricing natural resources to their true value, I recommend “Economics for a Fragile Planet” by Edward Barbier, Cambridge University Press, 2022.

The rebelling American colonies adopted the English law of 1776, and with additional states, modified their property laws (including the right to kill intruders). The Fifth and Fourteenth Amendments to the U.S. Constitution require legal (due) process and compensation in governmental taking of private property for public purposes. These elements, echoed in state constitutions and laws variously defining private property, are the foundation of American capitalism. 

Analysis by many ardent defenders of property rights ends there. This analysis omits a fundamental reality: Property rights aren’t the thing itself; they are rights concerning a thing. Nor are they immutable. Private property rights are subject to two still-expanding qualifications:

  1. Property rights are defensive in nature. They do not include the right to injure other people or their property, such as excessive noise, pollution, or sluicing drainage upon neighbors. Property owners are naturally concerned about what their neighbors are doing with their own land. In lieu of mortal combat, the government enforces the rights of others concerning your activities on your land, and your rights concerning their activities on their land. Thus, land use, nuisance, and water and air pollution laws.
  2. Various levels of government representing not only you, but your neighbors near and far, also have rights in your land. For example, our state owns and so regulates underground water and the wild creatures that have traversed your land since before it was settled. Just as you can restrict activities on your land, so can the government in protecting its wild animals and historical and acquired easements to natural systems such as drainage. As more interacting natural systems are understood, regulations will increase.

So, consider our government, with the world’s most capitalist economy, in its continual balancing of the peace, health and economic welfare of its people with the growing understanding of the large natural systems supporting life on this planet as we know it, as your co-owner. What you own is inextricably intermixed with a growing list of items of public ownership and concern, and consequently regulated: air, water, wild creatures, invasive plants and animals, noise and even light. 

— Contributed by William Appel

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