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July 20, 2012

The Price of Civilization (And What We Take For Granted)

“I try to be very accepting. But I feel hate. I normally do not feel hate. But I hate Pepco.”

- An Unsatisfied Customer

My post on NIMBY power consumers who complain when their power goes out because of fallen trees but don't want the power company to trim trees on *their* property seems to have touched a nerve.

Here is a list of things that are not clear to me:

1. What kind of person plants a tree under or near a power line in the first place?

2. If a homeowner moves onto a property with existing trees under/near the power lines, isn't it the homeowner's responsibility (not to mention just plain common sense/enlightened self interest) to keep limbs clear of the power lines?

3. Whose responsibility should it be to remove dead trees and dead limbs on private property that will interfere with the rights of others outside the property lines if they fall?

4. Why should the power company EVER have to prune trees on private property?

Back in December of 2000, the Spousal Unit and I were looking forward to his retirement from the Marine Corps after 20 years of service. At the time, we were renting a nice brick townhouse in downtown Rockville, Md. We liked the area - the Editorial Staff went to high school there and it was near my parents' home - but real estate prices were sky high there.

So we looked farther away from the DC metropolitcan area. Eventually we found a lovely, lakefront lot in a quirky, crunchy granola neighborhood in western Maryland. The lot was fully wooded, as were all the lots across the street from us. The road was unpaved, but maintained by the PUD. It was in fairly good shape. The other homes on our street were 15-20 years old.

The interesting thing about our development is that it is mostly self governed. Libertarians often pine for a world with less government and fewer rules. There's just one problem with this: government and rules don't create themselves. People create them because the vaguaries of human nature bring us into conflict with each other, and competing rights must be balanced and disputes ajudicated.

I may have mentioned that the road in front of our idyllic lakefront lot was unpaved. "Not to worry!", we were told. The PUD is working on it and the road is scheduled to be paved within the next few years. Neighbors we talked to as we walked what would soon be our lot and poured over house plans told us, "Yeah... they've been saying that for years." There was a lot of good natured grumbling: no one believed the road would be paved anytime soon, but everyone loved living there. We all paid into a Community Development fund that financed improvement projects in the neighborhood.

When we went to close on the lot, we got the first of many surprises. The plat clearly showed we already had a sewer hookup adjacent to the house on our left. But the plat was wrong: when the house on our left was built, the developer took "our" hookup. So we had a last minute negotiation with the seller of the lot. He dropped the price and absorbed half of the $11 thousand dollar hookup fee.

Construction began on our home and it was scheduled to be completed in November of 2001. We visited our lot every weekend, altered the plans and made a number of improvements to the blueprints, shopped for custom lighting fixtures, added a stone fireplace and picked out tile for the kitchen, front hall and master bath. We moved the ceilings up a foot and moved several interior walls to improve the flow and added transoms over the french doors on either side of the fireplace to let in the filtered light from our wooded back yard. The house began to seem substantial - no longer the stifled dream of two people who had never lived anywhere longer than three years. This was to be our retirement home: eventually we'd finish the basement and our grandchildren would come visit us and we'd have that sense of permanance - of home - that military brats long for all their lives. We were near both sets of parents and most of our brothers' and sisters' families and if we were very, very lucky, maybe our kids would settle in the same area and we'd know what it was like to belong somewhere; to have roots.

It turned out that Osama Bin Laden had other plans for our lives.

We lived in our new home a mere 10 months before moving to California. The house was rented out and I didn't see it again for 2 years. By now, the road should have been paved. Once or twice a year, Miss Utility trucks would come out and spray paint lines on the ground and hope would rise like the sap in the hardwoods that surrounded us does at the first touch of Spring.

Three more years passed. It was 2007 and the Spousal Unit went to Iraq for a year. The neighbors down the street were getting madder and madder about the road. These were people who had built new houses (and apparently didn't do their homework before moving in). We decided to attend - for the first time, because now you see we wanted something - one of the community board meetings. We had complaints.

I wasn't too sure about the complaints, but felt mildly ashamed at never having offered to help run our small community. And I was curious about the holdups on the road paving. So I signed the complaint and attended the next meeting.

And my eyes were opened to a whole world I never knew existed. I should have known, because things don't "just happen". People don't twitch their noses like Samantha in Bewitched and presto! there's a pool or a playground or a lovely landscaped area or walking trails around the lake! It's magic!

Only it's not magic. It's hard work, and these people were doing it for no pay. And what I took away from that meeting is that you could not have gotten me to do that job for any amount of money. Patiently, these volunteers explained to us what was involved in getting our roads paved: the negotiations with lot owners who, although there were existing sewer easements on their properties, threatened legal action if trees and brush were cut back or trenches were dug. There was stormwater management, and negotiations with the county, and competitive bids that expired when the PUD couldn't get lot owners to cooperate.

In 2011, the Spousal Unit finally retired from the Marine Corps. Our road was still not paved, but paving had begun elsewhere in our village and big trucks came through and cut down trees in our beautiful woods to make way for sewer lines and storm drains and ditches. We decided that we had waited long enough. We wanted to build a garage on our property, but we couldn't do that because of the easements that were disclosed to us when we bought the house. They were right there on the plat.

Fair enough.

It is now 2012. The Unit and I drove past our old retirement home a while back and the road is still not paved. But it's getting closer.

In the end, my neighbors prevailed and the PUD spent a ridiculous amount of money to pave a small section of the road that stopped - I kid you not - just short of our driveway. They did this knowing that this temporary road would have to be torn up when the permanent road went in. I withdrew my support for the complaint and mostly kept silent when my neighbors complained about the stupid, evil PUD that solved complex problems and somehow managed to balance the interests of developers, lot owners, home owners, state officials, and a host of other folks.... slowly, because they had to forge compromises and build support for every.darned.thing.they.did. And they had to handle complaints from people who were too busy to learn about what was going on under their own noses, who weren't around when lot owners had to be contacted, and bargained with, and cajoled into "allowing" roads and sewer lines and stormwater management systems to be constructed. I had gone from wondering why it was taking so long to utter amazement that there had been any progress at all.

It's easy to complain when you have absolutely no idea what goes into the hundreds of amenities we take for granted every day: roads, schools, power and water, cable and DSL and phone lines. All of these things involve some diminution (heh...) of our rights. We have to pay taxes or respect easements, or deal with inconveniences like having to ask permission from Miss Utility before digging a hole on our own property and taking out half the street's electricity or cable.

But it's OURS, dammitalltohell!!! We should be able to do as we please on our own property. No more of those stupid, evil, ignorant bastards spending money just for the pleasure of descrating those cherry trees we planted under the power lines (because Lord knows, trees don't grow any taller over the years, do they?). Do they even know what they're doing? Why yes, it turns out they do know what they're doing:

Our foresters are licensed professionals who take great care and pride in the work they do with the trees in the communities Pepco serves. Combined, they bring more than 80 years of experience to work each day. Their educational background includes a Master of Forestry from Virginia Tech, Bachelors of Science in Forestry and Wildlife from Virginia Tech and West Virginia University and a Forestry degree from Paul Smith's College (AAS) just to name a few.

Their experiences have taken them to Bolivia and El Salvador working in agro forestry and soil conservation efforts for the United States Peace Corps to George Washington's Mount Vernon Estate as the assistant grounds supervisor.

All are certified arborists and members of the International Society of Arboriculture.

I get it: we don't like big government or big corporations. And it's a natural human tendency to take things for granted, to resent what we have not taken the time to understand, not to consider how our little beefs fit into the mosaic of competing interests, opinions, and rights we call civilization.

But you'd better believe we expect our power to stay on. We paid our bill! Nevermind that trees are the #1 cause of outages, or that our failure to maintain trees growing on our property can impact countless others; even cost them their lives. Not our problem, really.

Unless, of course, the lights go out.

Posted by Cassandra at July 20, 2012 08:06 AM

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Comments

Questions #1-3 should not assume the individuals in question take the time to consider the possibilities before the situation(s) in question bite their southern hemisphere and/or they could/would give a rodent's posterior.


Question #4: Those described in questions 1-3 did not assume their responsibilit(y/ies), leaving the utility with no option other than to act, for the greater good. And in addition to having the Right of Way and/or Easement laws on the side of The Utility, the Utility has the backing of those who enforce and rule on the laws.


"I get it: we don't like big government or big corporations. And it's a natural human tendency to take things for granted, to resent what we have not taken the time to understand, not to consider how our little beefs fit into the mosaic of competing interests, opinions, and rights we call civilization.

Yup. Human nature. We all know it's so much easier to just p!$$ and moan about <fill in the blank> than to do something about <fill in the blank>.

// the hun looks at the radar and decides to go to out back and shout at the Rain Deities.//

Posted by: bthun at July 20, 2012 10:55 AM

You're sure right, and I take your point as a number one kvetcher about BIg Government. I never paid the slightest attention to local politics until about 2000, when my old Houston neighborhood was swept up into controversies about homeowners association (which, I must interject here, are often evil incarnate). Horrified by what I saw looming, I ran for and won the position of president of the civic association. Then for the next two years I was horrified by what it takes to hold petty local office among people who expect benefits but don't want to be involved or even become minimally informed.

My own ideals of limited government can be communicated persuasively to my neighbors only if I constantly show them how things can get done without surrendering power to a lot of meddling bureaucrats. People need to see the basic tasks getting done by cooperation, or they'll start supporting a way to get them done by coercion. This is the one sense in which the slogan "It Takes a Village" makes sense to me. A healthy community acts for itself and heals itself when it sustains a blow. It doesn't wait for someone else to come in and take charge. Neighbors need to know each other and be in the habit of cooperating informally, so when the zombie apocalypse arrives they know what position to take on the ramparts.

In law school one day the professor was going on about how we needed the city government to fix potholes. One classmate from West Texas drawled that, in his little town, whoever saw the hole would just go borrow the town's pothole-fixing truck and fix it. The professor was annoyed, but I was thrilled.

Posted by: Texan99 at July 20, 2012 11:03 AM

There's just one problem with this: government and rules don't create themselves. People create them because the vaguaries of human nature bring us into conflict with each other, and competing rights must be balanced and disputes ajudicated.

Well, sometimes. Sometimes rules and governments exist for other reasons than balancing our competing rights, or solving legitimate disputes.

We almost bought a place I liked a lot better up in Tennessee, except when I went to look at the papers I realized that the owner had given away tons of the rights of ownership to the state. Apparently he wanted his beautiful property to become an old growth forest, in time, so you couldn't cut any of the trees on the property; nor were there any mineral rights; nor could you clear any of the land; although you could build one (1) house on the land. Otherwise, you had no rights at all as a property owner.

Which was bad enough, but just to make it impossible to accept, the state asserted a legal right to come onto and inspect the entire property at any time without notice, to be sure that you were living by the rights it had been granted. So: no right to privacy, nor even a right to be notified that there were going to be armed strangers on your land today.

Well, we didn't buy the property. Ultimately, though, I would suggest that the mere existence of a rule or a power structure should not be taken as evidence for its legitimacy.

What right does that guy have to decide how every future owner of the land he wants to sell should be allowed to use it? What if everyone did that? But the state enforces the right to do just that, because it's to their advantage. They gain liberation from 4th amendment restrictions, for example, for every piece of land whose owner enters into such a compact with them.

Often rules and power structures exist for the advantage of the powerful, not for the maintenance of civilization. This is a trivial example, because you're free to buy a different piece of land instead; but there are a lot of examples not so trivial. Much of the government in our lives has grown beyond the common good, and into the realm of servicing the interests of the powerful -- the state, and private citizens or organizations of certain levels of wealth and influence.

Some trees need trimming to remain in their ideal shape, but the law is like that too.

Posted by: Grim at July 20, 2012 11:38 AM

I'm puzzled. Why shouldn't a landowner be able to make what amounts to a public park of his land, but retain the right to sell some limited use to a future resident? The "buyer" of that property is actually buying something more like a limited lease to use a park under strict conditions, but the restrictions are fully disclosed. How is that different from someone endowing a new Yosemite?

We have neighbors here who sold their land to the Nature Conservancy subject to a right of occupancy for themselves and their children for life. Other sold their land outright either to the Aransas National Wildlife Refuge or Goose Island State Park. I'd sure rather see that than the lawsuits that neighbors sometimes file to prevent development of nearby property -- tracts they don't own, but have gotten used to enjoying in their wild, undeveloped state.

Posted by: Texan99 at July 20, 2012 01:18 PM

What right does that guy have to decide how every future owner of the land he wants to sell should be allowed to use it? What if everyone did that? But the state enforces the right to do just that, because it's to their advantage. They gain liberation from 4th amendment restrictions, for example, for every piece of land whose owner enters into such a compact with them.

He owned the property. He voluntarily surrendered some of his property rights in exchange for something he valued: the knowledge that his property would remain close to nature (the state in which he bought it).

There's a price to be paid: future purchasers will not be willing to pay his asking price for a lesser set of ownership rights. But he chose that.

What right did he have? The ownership right. Once he gave away those rights, there were (in effect) multiple owners to the property. You can do that, as a property owner. You can give half your lot to your kids and their decendents, or simply grant them mineral rights in perpetuity or for a stated time period with an agreed upon expiration date.

What right of yours (or anyone else's) did he violate?

None. Why should you - as a buyer with no standing and zero ownership rights as of yet - be able to break the agreement he made and unilaterally terminate someone else's ownership interest?

Answer: you shouldn't. Just because you don't like something doesn't mean it's wrong. You didn't like it, so you didn't buy the property. Some other buyer may prize the knowledge that the lot cannot be cleared more than he values his privacy. That's his decision to make.

I don't understand your "What right did he have?" question. He had every right - he paid for the property (including the full set of rights) and disposed of them as he wished.

Neither you nor anyone else really has a say in the matter.

Often rules and power structures exist for the advantage of the powerful, not for the maintenance of civilization. This is a trivial example, because you're free to buy a different piece of land instead; but there are a lot of examples not so trivial. Much of the government in our lives has grown beyond the common good, and into the realm of servicing the interests of the powerful -- the state, and private citizens or organizations of certain levels of wealth and influence.

You know Grim, you are the one who introduced me to that magnificent quote from Chesterfield about not clearing away a roadblock until you could explain why it was put there in the first place.

You can conflate 'what you want' with "the common good", but in reality there is no one "common good" and no mechanism for determining what the common good might be except for voting and letting the majority decide.

That doesn't erase other notions of the common good. It's merely a means for settling disputes as to what the common good might be.

Posted by: I Cannot Lie.... at July 20, 2012 01:25 PM

That said, I agree with your assertion that mere existence does not determine legitimacy or rightness.

But I also think that in a world where people don't agree on many things and choose to remain ignorant of a great many others, it is generally wise (a la Chesterfield) not to assume that because you don't see the point of something, that there is no point to it or that it was put in place to serve the interests of "the powerful".

That amounts to assuming malice with no evidence of same, when it would be wiser to admit that you really don't know why something happened and seek to find out before imputing bad motives to others or assuming that something should be changed without studying the issue in full.

Posted by: I Cannot Lie.... at July 20, 2012 01:29 PM

I assume not malice as such, but self-interest by the powerful; it's more likely that they don't care about the effect on others than that they are conspiring to hurt them. Self-interest is such a bedrock part of human nature that even Chesterton would understand looking to it for interpretation: he also believes in the reality of original sin.

I don't accept the general argument you're putting forward here on two grounds.

First, I don't agree that we owe the powerful a duty to fully research and understand them before we challenge them. Generally you can't do that: such information is often classified (in the case of the government) or proprietary (in the case of private actors). Thus, finding out how the negotiations went is at the discretion of the powerful; and if I am not allowed to challenge the rule without that information, I can do nothing but accept the society that the powerful shape for me.

That's not my way, and it's not right in any case.

Second, you're just wrong about this issue of "what right did he have?" Your answer sounds reasonable, but you failed to answer the question "What if everyone did this?" It's a question you yourself generally like to ask, so let's ask it.

What if every property owner conceded to the state the right to inspect their property without a warrant, not only during the time that they own the property, but forever regardless of who should come to own it? What would happen is that a major privilege and immunity would be lost from American citizenship.

That means it is wrong not only for 'everyone,' but for him too. The state has no business doing this. The 4th Amendment establishes the right; the 14th Amendment holds that "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States."

So, it's wrong. He has no right to concede our liberty to the state for any purpose of his, nor does the state have any right to enact or enforce such a law.

Posted by: Grim at July 20, 2012 01:49 PM

What if every property owner conceded to the state the right to inspect their property without a warrant, not only during the time that they own the property, but forever regardless of who should come to own it? What would happen is that a major privilege and immunity would be lost from American citizenship.

So you want to limit other people's ownership rights - in advance - on the remote possibility that suddenly huge numbers of people *might* do something?

That sounds suspiciously like exactly the kind of thing you normally oppose. Except in this case you like the outcome.

Moreover, I suspect that you may not fully understand the government's right asserted in the deed. 4th Amendment rights apply to search and seizure rules where evidence can be seized and used at a criminal trial. They are not all encompassing.

And no one is forced to buy that property. If they do, they do so knowing up front what they are buying.

What if everyone did it? If everyone did it (and I don't believe for one moment that will happen, but let's say it did) then I would have to conclude that "everyone" had decided on a lesser set of property rights that pass with the sale of real estate.

If you find yourself grossly out of sync with your neighbors wrt your legal rights, you probably need to move.

Posted by: Cass at July 20, 2012 02:09 PM

Rights can be waived, Grim, voluntarily, without invalidating the general law that recognizes those rights.

Rights only really make sense when they are asserted and defended. If "everyone" chooses to waive a right voluntarily, that has nothing to do with the rights of people who have NOT voluntarily chosen to waive the right. It might make desireable real estate less easy to find for the minority, but the answer to that is not to limit the ownership or contract rights of other landowners pre-emptively.

If you choose to buy a lot like that, you've voluntarily accepted it "as is". If "everyone" decides to cut down all the trees on their lots tomorrow and you find that offensive, do you have the right to prevent them from doing as they wish?

Posted by: Cass at July 20, 2012 02:12 PM

I don't have a problem with the guy waiving his own right; but he has no right to waive the right for future owners of the property.

You apparently see this as my intending to limit his ownership rights or right to contract, but the other way of looking at is as defending others' rights -- and not merely their property rights, but also their natural rights. The 4th Amendment recognizes a pre-existing natural right, and the state simply does not have the right to allow someone to waive natural rights on someone else's behalf.

If I'm out of step with the rest of humanity on that point, I'm still right about it.

Posted by: Grim at July 20, 2012 02:17 PM

Again, I very much doubt your landowner waived his Constitutional search and seizure rights under the 4th Amendment, Grim. One can insert such a clause into a contract but it's probably unenforceable in a court of law because the Constitution trumps state contract or real estate laws (so far as it applies, and it's not clear to me that the 4th Amendment applies here at all).

People don't really understand those rights all that well. Like the 1st, which people constantly re-interpret to mean they have 1st amendment rights against private persons (they don't), your rights under the 4th Amendment are narrower than they are popularly supposed to be.

I would guess here, for instance, that what your landowner granted was the right of the State to come onto the property for the express purpose of inspections (which are NOT search and seizure) whose purpose is to establish whether the State's ownership rights are being protected. They can't enter your house, because the contents of your house form no part of the protected right. And they certainly can't seize your property (without a warrant).

The right of a part-owner to come onto land he partly owns has nothing to do with the 4th Amendment, really. Any more than the right of a power company to come onto your property to read the meter does.

You're treating this as a sale between a sole owner and some future owner. But it's not.

Actually - there are multiple owners and the landowner can only sell the rights he retained to third parties. The existing rights of other owners (here, the State) unaffected by the sale of rights they don't possess.

Posted by: Cass at July 20, 2012 03:20 PM

You apparently see this as my intending to limit his ownership rights or right to contract, but the other way of looking at is as defending others' rights -- and not merely their property rights, but also their natural rights. The 4th Amendment recognizes a pre-existing natural right, and the state simply does not have the right to allow someone to waive natural rights on someone else's behalf.

That's not what is happening in your scenario, though.

Posted by: Cass at July 20, 2012 03:20 PM

We seem to disagree on what the 4th means. It could be read very narrowly, but I don't think that reading is the right one.

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

So, let's take a narrow reading. I'm an agent of the state. I am not going to "search" through your property without a warrant; I'm just going to come onto your land to inspect it to make sure my ownership interests are protected. For example, the state has an ownership interest in any wild animals that reside on or travel over your land (at least in Georgia, all wild animals are said to be owned by the state). That includes non-venomous snakes, by the way, which can get inside the walls and in your home, so I'll need to look through your house, too. It's not a "search," though. Just looking out for my animals.

Of course, if I discover something in there that suggests probable cause for a crime having been committed, then I can obtain a warrant to "search" the property that I was just "looking through" before.

We could read the 4th as narrowly as this, and still be within the technical letter of the law. There's a real danger that we will have read out the freedom that was to be protected, though.

That freedom was freedom from harassment by agents of the state. The Founders were revolutionaries, who were remembering how the agents of the British state had treated them. They didn't want a state whose agents were allowed to behave arrogantly, or treat their private property so freely. That's what they wanted to protect. On an originalist reading, this is what the 4th means; and on that reading, what this fellow is doing is surrendering that right, not for himself, but for all owners of that property forever.

For himself I can see it; but I think the state is wrong to enter into a deal whereby they allow him to surrender the rights for future owners of the land. The 14th Amendment should be read as limiting them from doing so -- even if you want to say that the owner of the land should have the right to do it (which I still think is wrong, but even if you want to say it) the state may not enact a law that allows them to enforce such a limitation on an important privilege or immunity.

Posted by: Grim at July 20, 2012 03:47 PM

Question #!: sometimes the kind of person who didn't look 20 years ahead when he planted his tree, or the kind of person who planted his tree, then the area around him urbanized and the power line went up.

Sometimes rules and governments exist for other reasons than balancing our competing rights, or solving legitimate disputes.

Amen, Brother. This applies to HOAs, too, which T99 correctly describes as evil incarnate. We looked hard at a piece of dirt on which we wanted to build our retirement home, even right nearby, and it was on the edge of a hill that gave us a great view of the plains below while being properly populated with trees on the other three sides. We put money down the the dirt and got our HOA covenants.

House had to have so much windowing, nor more nor less. Two stories tall, exactly. Worse: no protests. No political signs on your property visible from the street.

My fat, pale a**. I'd rather look at a sea of Vote for Obama signs than have my rights curtailed like that. I'd rather have OWS camping below my picture window bellyaching about my success than have my rights curtailed.

We took our money back. That wonderful piece of dirt had lost all of its attraction.

Finally, though, he has no right to waive the right for future owners of the property.

He has waived no rights of others; those "future owners" are not owners, and so they have no rights to be waived.

What you're suggesting is that no owner has any right to attach any conditions to a sale: such attachments abridge the rights of future owners to behave differently with their future property.

Eric Hines

Posted by: E Hines at July 20, 2012 04:01 PM

Grim:

Instead of inventing hypotheticals that don't match the original case we were discussing, let's stay with that. This is your description of the rights your landowner gave or bargained away:

when I went to look at the papers I realized that the owner had given away tons of the rights of ownership to the state. Apparently he wanted his beautiful property to become an old growth forest, in time, so you couldn't cut any of the trees on the property; nor were there any mineral rights; nor could you clear any of the land; although you could build one (1) house on the land.

To sum up, here are the rights the new owner does NOT have:

1. Cutting down trees.
2. Clear the land.
3. Take minerals from the ground.
4. Build more than one house.

And this:

... the state asserted a legal right to come onto and inspect the entire property at any time without notice, to be sure that you were living by the rights it had been granted.

So by your description, the state can do ONLY those things that are reasonable to protect its rights.

1. It can look at trees on your property to see if there is evidence of unlawful cutting.

2. It can look at your land to see if parts have been cleared.

3. It can look at your land for evidence of mining.

4. It can look at your land to see if you've built more than one house.

NOWHERE in any of this can they enter your house. There are no trees in your house, no land to be cleared in your house, no minerals to be extracted from your house, and they can see perfectly well whether there are one or two houses without ever entering your house.

You do not have a natural right to pay for less than the full set of ownership rights (I think it's called fee simple absolute) and then retroactively and unilaterally nullify the rights of other owners.

And you have not shown what any of this has to do with the 4th amendment.

Posted by: Cass at July 20, 2012 04:09 PM

The 4th Amendment doesn't apply to my house only. It also applies to my effects, which is to say my things. Real property is a thing. The state has no right to come on mine without a warrant or probable cause, and that's just how I want it. I'm not even doing anything wrong; I just don't want to have an armed agent of the state sneaking around on my land, spying on my family.

You do not have a natural right to pay for less than the full set of ownership rights (I think it's called fee simple absolute) and then retroactively and unilaterally nullify the rights of other owners.

What I'm saying is that the state has no right to make it impossible for anyone in the future to purchase the full set of ownership rights. It would be one thing if you owned the mineral rights, and wanted to come inspect whatever; for one thing you're not an agent of the state who can turn around and fine or arrest me if you see something you don't like; and for another, I could buy them from you.

What the state has done here is to permanently reduce the set of rights that pertain to this piece of property. Those rights no longer exist. They cannot be bought for any price, forever.

'If everyone did that,' we would be manifestly less free as a people. Thus, it is an illegitimate thing to do even in the singular case.

Mr. Hines:

What you're suggesting is that no owner has any right to attach any conditions to a sale.

No, that would be a Tex-style situation. If he'd put those limits in the contract as an agreement between him and me, I'd have probably bought the place. I didn't even want to mine it or cut down all the trees or whatever.

To be free from state intrusion, however, I very much want.

Posted by: Grim at July 20, 2012 04:17 PM

It would be one thing if you owned the mineral rights, and wanted to come inspect whatever; for one thing you're not an agent of the state who can turn around and fine or arrest me if you see something you don't like; and for another, I could buy them from you.

Technically, he COULD report you to police if (stupid example) he saw a dead human body during his inspection. Yes, he can't arrest you, but he could most likely enable a warrant to be issued based upon his testimony.

And look, I'm EXTREMELY sympathetic with your principle on this one. But I will say that as long as there's no attempt to hide the facts attached to the property (i.e. that they can come on the property and inspect), there's really no conflict in my mind. YES, the original owner sold those rights to the state (or to another third party). But much like folks who buy homes next to the airport don't have a leg to stand on about the noise being a problem (I'm more sympathetic to homeowners who have one built nearby after they've bought their home), if you know that the property comes with unacceptable limitations, it's a caveat emptor situation.

TO me it's like a homeowner who owns a plot of land:
XXXXX
XXXXX
XXXXX
XXXXX
XXXXX

We all agree he can sell a parcel of it in toto, it's his land after all:
XXXXX
XXXXX
XXOOO
XXOOO
XXOOO

So he still owns property X, but no longer owns property O. I think everyone can agree that's reasonable. And so too should be TECHNICALLY ok to sell like this:
XXXXX
XOOOX
XOOOX
XOOOX
XXXXX

But who would buy such a property? They have no rights to get on to property O (since he didn't sell right of way), and while there may be some arcane law preventing such a sale, logically if you could find a person willing to by O but never allowed to get to it, more power to you.

In this case, we're not talking about selling in toto, but it's similar. As long as you're aware that what you're buying is a stupid idea (and I believe giving up rights to be secure in the privacy of your property is kinda dumb to agree to), I will not stand in the way of two people engaging in free commerce. So let some other fool buy the "tainted" property. And when a tree gets dutch elm and is going to fall and crush the house, let him try and fight with the state for rights to save his home. I will have none, thanks.

Posted by: MikeD at July 20, 2012 04:46 PM

I don't think I've said that private sellers shouldn't be free to do stupid things, or to sell to suckers on unfair terms. What I've said is that the state has allowed itself to be a party to the weakening of the rights that pertain to owners of land. They have dissolved those rights, so that they are no longer available for sale at all.

This is a Magna Carta kind of issue, in other words. The question is what kinds of rights a property owner ought to have, and one of them is the right to be left alone by the state on his property. The state is redefining the rights in cases like this so that this traditional and important right is no longer available to anyone who otherwise comes to 'own' the property.

As I told Eric, I wouldn't have a problem with him putting it in the contract as a condition of sale between equal, private citizens. This action is bothersome because it eliminates a traditional right of a landowner in the interest of the state.

Posted by: Grim at July 20, 2012 05:21 PM

... the state has no right to make it impossible for anyone in the future to purchase the full set of ownership rights.

From your original description, the state has done no such thing. It has simply accepted what the owner transferred/sold/donated freely of his own choice to it. It's no different than if he had done the same directly with you. Furthermore, he made it a requirement of all future transfers. This is just the same as the GPL licensing for software.

...he can't arrest you....

Yes, he can; we still do citizen's arrests in this country. They're just very hard to pull off, and justifiably so.

A quibble:
XXXXX
XOOOX
XOOOX
XOOOX
XXXXX
But who would buy such a property? They have no rights to get on to property O....

Actually, they do. Most states require the owner(s) of the surrounding property to grant access to the surrounded property.

...the state has allowed itself to be a party to the weakening of the rights that pertain to owners of land.

But the state has done no such thing: it has only accepted what the owner has done/offered to do. The state is merely the counterparty to the transaction. We might decry the state's role in the transaction, but it's legitimate. Moreover, the only rights that are affected are the rights of the current owner. Future owners, entirely nebulous, unreal entities that they are, are not the present owner, and so they have no rights vis-a-vis this land.

It goes beyond that, though. Inalienable rights (vis., the example list in our Declaration of Independence) are unseverable from the person. These rights include the right to acquire property. But they do not extend to property itself--they are in the person--and not to any particular item of property.

You asked earlier "what if everyone did that?" I submit the answer is that they will have altered the social compact that binds them in a fundamental way, which is their right. If we disagree with that change, then our choices are two: leave or revolt--each of which is our right--our duty, even. But until that event happens, the owner of the Tennessee land has acted entirely legitimately, regardless of what you or I or Cassandra might think of it.

Eric Hines

Posted by: E Hines at July 20, 2012 06:13 PM

Grim, do you think it's wrong for a landowner to sell the property to the state?

Posted by: Texan99 at July 20, 2012 07:14 PM

But the state has done no such thing: it has only accepted what the owner has done/offered to do. The state is merely the counterparty to the transaction.

This is not so. The state is also the maker of the laws under which the transaction occurred, and should someone challenge the terms, it is also operates the courts in which the claim would be heard, and the enforcement mechanisms.

Grim, do you think it's wrong for a landowner to sell the property to the state?

No, but it would be wrong for the state to sell property to citizens only on the condition that they grant access to agents of the state at will forever. You see why that's the proper analogy rather than a sale to the state, yes? There's no damage to the set of citizen-landowner privileges and immunities in a sale to the state; but when the state participates in withholding that traditional right (or, I would argue, dissolving it insofar as that piece of land is concerned), then the issue arises.

Posted by: Grim at July 20, 2012 09:10 PM

Also:

Inalienable rights (vis., the example list in our Declaration of Independence) are unseverable from the person. These rights include the right to acquire property. But they do not extend to property itself--they are in the person--and not to any particular item of property.

Either the right to be secure in your papers from search and seizure is not an inalienable right, or this formulation is wrong. Any papers I have done so much as write on become protected property. They can be separated from my body by ten thousand miles, but the government still can't take them or search them without due process.

By the same token, the government can take a particular piece of land via eminent domain if they pay me for it. But whatever piece of land I happen to own, up until they condemn it and pay for it, they can't come on it without my permission, or something like probable cause or a warrant. That right protects the security of my land, in the same way that the security of my papers are protected.

You asked earlier "what if everyone did that?" I submit the answer is that they will have altered the social compact that binds them in a fundamental way, which is their right.

We just discussed this recently: at least according to Locke, the social contract can't legitimately permit a violation of natural rights. Thus, it isn't their right to alter their social contract in this way: it's wrong, even if everyone agrees that it would be totally sweet to have the state enjoy this power.

Posted by: Girm at July 20, 2012 09:19 PM

the right to be secure in your papers from search and seizure is not an inalienable right

It isn't. Due process allows this to be penetrated. Just as eminent domain allows your real property to be seized. The commonality here is that, with proper procedure, each can be taken.

Your inalienable rights to life, liberty, the pursuit of happiness (among others) are protected under a social compact by transferring certain powers, together with explicit limitations on those powers, to the government. Under our particular compact, those powers include the penetration of your person, house, paper, and effects, against unreasonable searches and seizures, and your real property after due process and eminent domain.

No inalienable right is transferred to the state by land sale of the form you describe in Tennessee. We can argue that the state ought not to have accepted the deal, but only on the basis of its foolishness, not through any rights violation. And having accepted the sale, it's as bound by the contracted terms as would be any private party.

What the people will have done in their fundamental alteration of the compact will have been to alter the limits on the transferred powers; no inalienable rights will have been transferred. They've just altered the mechanism by which they consider those rights maximally protected.

Eric Hines

Posted by: E Hines at July 20, 2012 09:38 PM

I'm not sure your formulation makes sense. The state can also 'alienate' me from my life, in practical terms; that doesn't mean that the right isn't inalienable in the sense the Founders meant. If inalienable really means that you can't take it away from me regardless of process, then I have an inalienable right not to life, but to death. That's the one thing you really can't take away from me.

Posted by: Grim at July 20, 2012 09:50 PM

The state can also 'alienate' me from my life, in practical terms....

In Lockean terms, a man who commits a crime has made war on the members of the compact--all of them, even if his crime only immediately affects one--and so placed himself outside the compact. As such, the compact can apply whatever sanction it deems proper, including killing the miscreant.

Here is where Locke gets fuzzy. Even in Lockean terms, every man has an inalienable right, say, to his life. But even in Lockean terms, he can be put to death in response to a suitably bad crime.

As to the lesser rights--to be secure in your person, house, paper, effects, and real property, for instance--these must occasionally be penetrated to protect you, and the rest of us, wrt our inalienable rights. To arrest you as a legitimate suspect in a crime, to enter your home and search it in the investigation of a crime, to seize your property for a larger public use (which activist judges have morphed into public purpose and then into the private use of a superior economic entity, beginning with Berman).

Eric Hines

Posted by: E Hines at July 20, 2012 10:25 PM

In Lockean terms, a man who commits a crime has made war...

Well, it's not so fuzzy. In the Second Treatise on Government, Locke originally locates a natural right to revenge in the state of war; and the state of war exactly equals the state of nature, except that you're at war with some of your neighbors.

We'll leave aside the facts that (a) Locke is wrong about there having ever been a state of nature, and (b) that he's also wrong to be thinking about all this in terms of contract theory, when it's really more like a treaty between warring parties. The point is that he thinks your being killed for thieving is a holdover of natural law: you just ceded that pre-political natural right of revenge to the state. But things are progressing post-state just as they ought to progress pre-state: thieves die.

Locke doesn't use the term "inalienable" to describe rights; he's interested (as I am) in natural rights, that is, the rights that pertain to your nature as a man. However, because natural rights are not contingent on any political system -- it is, rather, the degree to which the system protects natural rights that determines the legitimacy of the system -- they are usually taken to be the ones that are inalienable. That means, specifically, that you can't alienate yourself from them by joining a social compact: they must survive in any legitimate compact.

Property was certainly a natural right for Locke. I'm not at all sure he'd have agreed with the idea of eminent domain. (The subject of property redistribution was heavily engaged during the English Civil War, and indeed throughout his lifetime, but I think as far as he goes in this direction is stating that you might lose your right to property that you 'own' in a legal sense, but don't actually use at all.)

I'm sure that he wouldn't approve of a legal system that subverted your natural rights as a property owner. The state maybe can take your land for pay, but you have a right to buy more; and wherever your land is, at any given time, your rights over your property are highly significant for Locke.

But here's a thought experiment. Say the state decided to buy everyone's property via eminent domain, and then to resell all the property within the state with the restriction that they retained a right to come on the land and inspect it whenever they wished.

If I understand what you're saying, this is a nonproblematic exercise of market forces. To me it seems like an illegitimate exercise of state power to impose a limit on a natural right. That's a pretty big delta. Are you sure you're good with the seller imposing any restriction they want, when we're talking about the state as owner, and the restriction amounts to waiving the natural right protected by the 4th Amendment?

Posted by: Grim at July 20, 2012 10:55 PM

...Locke is wrong about there having ever been a state of nature....

Whether he was right or wrong on this isn't particularly important, Locke's state of nature was a hypothetical construct to illustrate his later points. It was Hobbes who considered the natural man--and the state of nature (not his term, but Locke's, but that was the idea) in which he existed--to have been a literally extant thing.

...wrong to be thinking about all this in terms of contract theory, when it's really more like a treaty....

This is not much of a distinction; all any treaty is is a contract between/among the treators.

It's true that inalienable isn't Locke's term; it's used by the Founders as the then-modern referent to natural rights.

For all that, though, property was--and is--a natural right for our Founders and for us today, as I pointed out in another thread with the cite from Adams. That said, Locke might well have argued with our concept of eminent domain, but as you've pointed out, he recognized the possibility of losing ownership (a different sort of "property" than a property in labor, land being actively manipulated, and in the produce of that labor) under specified circumstances--including to a state.

Even our eminent domain--whether as originally constructed by the Founders or as distorted later by misbehaving courts--recognizes the right to acquire other property subsequent to any seizure.

Your thought experiment, though, is self-defeating. If the state seizes all property through eminent domain, then it is denying each of us our right, in Adams' terms, to seek and obtain our own happiness by universally denying access to our inalienable/natural right to property. That the state might choose to resell later is irrelevant: from the moment the state has acquired all property until it chooses to resell any part, we are denied. Inalienable permits no separation of the right from the man, however briefly.

Eric Hines

Posted by: E Hines at July 20, 2012 11:32 PM

List of things: Because too many of us (well, not necessarily us here) have fallen into the idea that "someone else will do it, it's someone else's responsibility".

Witness the lawsuits filed by people who spill hot coffee on themselves; notices we have to put on hammers reading "do not hit yourself on the head with this hammer".

Posted by: ZZMike at July 20, 2012 11:34 PM

This is not much of a distinction; all any treaty is is a contract between/among the treators.

There's a huge distinction. A treaty is binding and legitimate even though the only reason you agreed to it was that because I was about to cut your head off with my sword. A contract entered into under duress isn't binding at all.

If you violate the contract that I forced you at sword point to enter into, we'd say you were right. If you break the treaty that allowed you to survive, we'd say you were wrong. That's what we said about Saddam, after all: we granted him peace at the end of the Gulf War on unilateral terms he didn't even actually agree to in any formal way. When he broke those terms, we came back, kicked his ass, and handed him over to his people for a good hanging.

And we had every right to do it.

Your thought experiment, though, is self-defeating. [Explanation.]

If you'll forgive my saying so, that's more a confirmation of what I'm saying than a defeat of it. Your point is that it's right to overthrow the state even before we get to the part where they are selling it back to us, only without our natural rights appertaining.

But say we all decided, out of some passing spirit of love, to sell our property to the state with the understanding that they'd sell it back to us with this limitation. We've all consented, individually, to surrendering not only our rights, but the rights of future generations. Future generations will be less free, because we no longer have the ownership rights to pass to them that once we had.

That in itself seems like the kind of thing Locke would take to be a violation of natural rights. The fact that everyone agreed to it, every single man and woman, is not the important point. An inalienable right is inalienable. Future generations can't lose their natural rights because our generation decided to pretend those rights weren't important or didn't exist.

Posted by: Grim at July 21, 2012 12:14 AM

"No, but it would be wrong for the state to sell property to citizens only on the condition that they grant access to agents of the state at will forever. You see why that's the proper analogy rather than a sale to the state, yes?"

Not at all. If I sell my property to the state, the state can then decide to prevent anyone from building a house on it, or can allow people to build houses there under strictly limited conditions. The State of Texas, for instance, allows people 99-year leases to build houses on stilts out in the coastal marshes (or they used to, anyway). The land still belongs to the state, which has significant rights to inspect the houses and interfere in all kinds of ways with their use. That's because the state is a lot more interested in maintaining the habitat than in making the human occupation convenient.

I think this is exactly how it should work. It's the opposite of what the EPA does, which is come in and tell you how to build on your property without bothering to buy it from you first. It's also the opposite of how "green" neighbors behave when they sue to keep WalMart from finally building on that pretty greenbelt they bought and held for the last ten years, which the neighborhood kids got used to being able to romp in. There's nothing wrong with trying to protect a piece of land in perpetuity as a kind of park or natural preserve, as long as it's your property to protect in the first place.

Posted by: Texan99 at July 21, 2012 08:59 AM

I agree with this statement:

There's nothing wrong with trying to protect a piece of land in perpetuity as a kind of park or natural preserve, as long as it's your property to protect in the first place.

If it wants to buy the land outright, then it can do what it wants. I don't think it should be able to buy 'just enough' to void the citizenry's possibility of exercising the old rights and liberties.

Cassandra rightly named the estate as fee simple. The "fee" here is is derived from "fief," and related to "feudal." This is an ancient set of rights that we are talking about. Protecting the ancient rights of the free from novel intrusions by the state is a duty we ought to take very seriously wherever it crops up.

Posted by: Grim at July 21, 2012 10:08 AM

A treaty is binding and legitimate even though the only reason you agreed to it was that because I was about to cut your head off....

Such a treaty is no more legitimate than the contract signed under duress. The only thing that binds either is brute force; there is no legitimacy extant.

If you break the treaty that allowed you to survive, we'd say you were wrong.

You might. Others might say I was foolish. I might say I chose to risk continued slavery, or outright extermination, on the chance of regaining freedom and dignity and honor.

Your point is that it's right to overthrow the state even before we get to the part where they are selling it back to us, only without our natural rights appertaining.

Actually, you've just proven my point. When I sell a piece of dirt under the terms you described for the Tennessee plot you were looking at, I'm severing some of my secondary rights from that land in perpetuity. I'm severing no future buyer's rights, even secondary, since until he buys there is no such thing in the real world, and that buyer has the freely available option to buy under those terms or not.

But when the entire population sells the entire land of the compact to the state without the individuals' natural rights--an entirely different kettle of fish from what you originally proposed--this is impermissible. Natural rights, aside from not being inherent in property but in the man who has that property, cannot be severed from the men, as you correctly note. A population that attempts to do so has erred grievously, and a government that is a party to such an attempt has demonstrated its fitness for overthrow. Moreover, a population that succeeds in the sale have deprived all of those nebulous future buyers of their natural rights to, among other things, seek their own safety and happiness by denying those future ones the means to do so. But selling with encumberances, and selling less than all of the land in the compact, has denied no one a natural right.

Future generations can't lose their natural rights because our generation decided to pretend those rights weren't important or didn't exist.

Indeed. And this was one of the arguments against hereditary governance.

Posted by: E Hines at July 21, 2012 11:49 AM

This isn't a novel intrusion by the state. The owner, for whatever reason, decided to sell or give away part of his ownership rights.

If you seriously believe in property rights, you can't seriously suggest that property owners shouldn't be allowed to dispose of their property as they please. Current property owners have no duty to "future owners".

You're inventing rights out of whole cloth, Grim. The only possible theory I can think of that might support your position is that he has entered into a contract against public policy. The problem here is that you don't get to decide what public policy is: that's something society decides.

No one is losing any natural right here. Or, what Eric said:

...selling with encumberances, and selling less than all of the land in the compact, has denied no one a natural right.

Posted by: Cass at July 21, 2012 12:04 PM

I disagree with both of you, but I'm tired of arguing about it. I still believe precisely the position I held at the beginning of this discussion. think the man was wrong to despoil the property in this way because it harms the liberty of future generations.

We do have a debt to 'future owners' in the same way that we have a debt to the next generation, which is to preserve the liberty we found and pass it to them intact. In the case of land that is available in fee simple, that means preserving all the rights that pertain to the land so that the next generation of owners can enjoy the land with the same liberty we knew. I believe in property rights, but I also believe in the existence of this moral debt.

I think the state acted wrongly as well, legally rather than morally -- the state is not capable of morality -- but I have explained why. If you are unconvinced, so be it. I am not convinced by the counterarguments either.

Posted by: Grim at July 21, 2012 12:50 PM

The black-and-white approach to rights that Grim is describing may or may not have existed in the 12th century, but it certainly has not been a part of modern real estate law for centuries. Our common law traditionally has allowed real estate rights to be carved up into all kinds of pieces via conditional grants and exceptions, in the form of liens, leases, retained estates, easements, reservations, covenants, joint ownerships, and a host of other long-term encumbrances limited only by the imagination of the seller and the patience of the buyer. That's why we have title searches and title insurance: to flush out all the old quibbles and make sure the buyer is comfortable with them before he closes.

Posted by: Texan99 at July 21, 2012 04:40 PM

We had easements all around our property in our old neighborhood. We chose to put in stone steps on the easement between the road and our driveway, knowing that they might very well come by and tell us we had to move them or even take them down when the road came through.

wrt to restrictions that lessen ownership of real estate to something less than FSA, they are extremely common and frequently very useful and beneficial.

When I was in paralegal school many moons ago, we spent a week doing title searches (not binding ones that could be used for title insurance - we were students). I wouldn't want to do that for a living, but was actually pretty interesting and fun as many of the houses in the little SC town we lived in had been around for a very long time.

I see no reason to limit people's freedom to sell or give away their property just to suit other people who really have no ownership interest. People are always keen on limiting other people's freedom.

Their own, not so much. I've never been convinced (rhetoric on both sides notwithstanding) that conservatives love freedom any more than liberals. We just find different restrictions objectionable :p

Posted by: Cass at July 21, 2012 05:37 PM

In all fairness, I should say that I think Grim is right thus far: there is always danger of losing liberty.

Where I think I differ from him is in his evaluation of this situation. There are different kinds of freedom. Some value one kind of freedom more than another, and I don't believe any generation has the right to decide for a future generation what kind of freedom they will have (or should value). Each generation needs to make up its own mind about that.

The world has changed immensely since we first trudged out of the primordial ooze. I believe there are some values that transcend generations - for instance, I don't think it will ever be "right" to steal, or rape. I don't think might will ever determine right.

But there are a number of other freedoms, the value of which may well seem very different to our children and grandchildren. For instance, if we were to be invaded by aliens, freedom from unlawful search and seizure could easily come to be pretty damned unimportant compared with freedom from having your brains scooped out by ET and eaten on a Ritz cracker.

With a very few exceptions, I'm suspicious of moral absolutes, and I don't see the 4th amendment as any kind of moral absolute in the same sense that rape or murder are moral evils.

All each generation can do is determine for itself which values and freedoms are worth fighting for, and try to leave those to our children. Future generations are under no obligation to value what we value, though. It will be their obligation to defend the freedoms they hold most dear. They don't "owe" it to us to defend what we held most dear.

Posted by: Cass at July 21, 2012 06:43 PM

The black-and-white approach to rights that Grim is describing may or may not have existed in the 12th century...

Not to re-engage the argument, but simply because you asked: this system of ownership actually dates to the end of the 13th century. In 1290 Parliament passed a law called Quia Emptores, which allowed for the sale of fiefdoms. It required that no conditions be attached to the sale, which is why it is called 'fee simple' -- the older system was vastly more complex. If you wanted to 'buy' land that I held from the crown, you couldn't; but you could make an arrangement with me whereby you could have the land for a period, but it would revert to me or my heir on various conditions (like you dying without an heir, or me not approving of your heir, or ten years passing, or you using it for purposes other than what I approved).

Under the new law, you couldn't do that anymore; but you could sell your fiefdom outright to someone. They came in with no duties to you, although they had certain duties to the king.

These duties to the crown, by the way, are exactly the same duties that either originated with William I's original feudal system, or that came from the revision to that system that we call Magna Carta. There are five.

1) If you die without heirs, the crown (the state, in our case) gets the land back. This is called escheat.

2) The crown has the right to insist that you obey the law on your land, or it can reclaim the land.

3) The crown has the right to insist that you be a loyal subject and not revolt against the crown (loyal citizen, same/same), or it can reclaim the land.

4) The crown has the right to take back the land if there is a pressing need (we call this "eminent domain," with the addendum that you must be paid).

5) You have to pay taxes or render military service as a condition of ownership (just taxes for us, for now).

The complications arose between 1215 (Magna Carta) and 1290. The 1290 law intended to reduce the limits on the freedom of feudal lords, so that they were only subject to the basic duties to the crown that define fee simple. These are the same duties we have today; which means that those of us who hold land in fee simple are, in practical fact, feudal landholders on precisely the same terms as the lords of England in 1290.

Posted by: Grim at July 21, 2012 09:55 PM

Check fire: that law from 1290 was actually issued by the king, Edward I. That's the same Edward I "Longshanks" that you know from Braveheart. He was guilty of attempting to force the subjugation of Scotland and Wales, but as you can see, he was also willing to grant new liberties to those who were on his side.

He was also something of a reformer; this was an age in which the learning of the ancients was being restored to the West, following the conquests of Toledo and Seville in Spain. Translations had been moving Greek and lost Roman knowledge into Latin since the 11th century (fall of Toledo, which territory had been a Visigothic state under the Romans before being taken by the Muslims); Thomas Aquinas is a 13th century figure. Edward Longshanks reformed the monarchy in a number of ways along old Roman lines.

But he also is the source of the Parliament we know today. The so-called "Model Parliament" met in 1295 -- five years after the law I originally sourced to them. That's the sort of niggling detail that, gnawing on the brain, keeps a man up at midnight.

Posted by: Grim at July 22, 2012 12:00 AM

I daresay there are a lot of parallels between fee simple in 1290 and fee simple today. There just aren't a whole lot of parallels between fee simple today and the myriad other real estate arrangements that have been much more common in the intervening centuries, and certainly the last couple. The trend in our law has been to give buyers and sellers more flexibility to deal with each other on whatever terms suit them best.

Posted by: Texan99 at July 22, 2012 09:17 AM

Doubtless, but I wasn't opposing that with regard to buyers and sellers of private estates. Every one of those forms is 'fee simple'-minus; you take a piece of land held in fee simple, and alienate certain rights to certain other parties. If that's another private party, there's no problem. You could always buy it back, if you can come to an agreement; and anyway in principle it could be bought back in the future, restoring a case in which the land is held with all the ancient rights intact. The complete rights pertain to the land, they just may not all be held by the same person.

The problem with giving (or selling) those rights to the government is that it weakens the liberty pertaining to the land itself. Whoever owns the land, there are fewer rights to own. Thus is no longer possible to hold the land with the old liberties. This is the strength of my conviction that the government should either purchase the land outright, or sell it into the private space with the full 'fee simple' rights appertaining.

I was not asserting a right to tell any future person what they should value. Rather, I was asserting not a right but a duty: the duty to preserve all the old liberties, so that whatever ones future generations determine to be important to them are as available to them as they were to me.

Posted by: Grim at July 22, 2012 06:46 PM

I don't see what involving the state in the chain of title has got to do with it. For me, it's still a question of a seller putting strings on the title and a buyer accepting them.

Posted by: Texan99 at July 23, 2012 09:41 AM

Again, I'm not trying to persuade you at this point; you're welcome to believe what you like. However, since you asked, I'll explain.

If we are the analog to feudal landholders, the state is the analog to the king. The state doesn't own land the same way any other party does. The state claims a different form of ownership, which is called alloidial title. What this means is that the land is theirs, outright, with no duties and restrictions, and no one can take it from them for any reason.

Thus, our system of property ownership really is feudal in the sense that we aren't really buying ownership, we're buying the right to hold the land under terms. When we "buy" property, what we are buying is the right to hold it of the state under the traditional feudal duties. The state continues to own the land under the same terms that the king owned the land in England, and can reclaim it on the same terms.

What that means is that giving the state 'some of the rights in perpetuity' is categorically different from giving those same rights to a private party and their heirs or designees. In the latter case all the rights still exist for private parties to exercise; in the first case, the property now carries a smaller set of rights for whoever comes to own it.

That was my point about 'what if everyone did this?' What it would mean if everyone did it is that the next generation is impoverished in terms of its ability to actualize their rights. Because there wouldn't be a place for it, even if you retain in some sense the legal right, you lack the capacity to enjoy the actual right. Destroying the potential to actually enjoy a liberty strikes me as functionally equivalent to destroying the liberty, which is why it seems objectionable to me to go this route.

Posted by: Grim at July 23, 2012 11:03 AM

1. What kind of person plants a tree under or near a power line in the first place?

Very often the tree was there first, albeit smaller.

2. If a homeowner moves onto a property with existing trees under/near the power lines, isn't it the homeowner's responsibility (not to mention just plain common sense/enlightened self interest) to keep limbs clear of the power lines?

The power company discourages homeowners from trimming limbs near power lines. Too many incidents of people with inadequate equipment or knowledge dropping limbs on lines or getting
electrocuted, I'd wager.

3. Whose responsibility should it be to remove dead trees and dead limbs on private property that will interfere with the rights of others outside the property lines if they fall?

The property owner. However, very often the tree is in fact on part of the property where the municipality has an easement to run the road through. Who's responsible in such a case?

4. Why should the power company EVER have to prune trees on private property?

Because they have the experience and expertise to do it safely and fix things quickly if a mistake is made. Now, should they bill the private property owner? Sure. But see again my question about who owns the property.

Posted by: RonF at July 23, 2012 03:06 PM

So, now, answer this question:

Given that people like trees, have always liked trees, will continue to like trees and that this cannot have been any surprise to anyone for generations, why don't the utility companies bury the lines? No worries about tree limbs, no worries about ice storms, no worries about a truck hitting a power pole, etc., etc.

Posted by: RonF at July 23, 2012 03:11 PM

"Our foresters are licensed professionals who take great care and pride in the work they do with the trees in the communities Pepco serves. Combined, they bring more than 80 years of experience to work each day."

1) Well, I don't know about your neck of the woods but around me the people cutting the trees speak Spanish as their primary language. If they've got college degrees in forestry or anything else I'll be surprised.

2) Knowing how to cut a tree next to a power line safely and make sure that it and they survive the experience is one thing. Caring what the whole thing looks like when they're done is another. When it comes to balancing the desires of the people involved, will they favor the property owner or the people who pay them?

Posted by: RonF at July 23, 2012 03:17 PM

Oh, and I'm lucky that the power lines are on the other side of the street, so my trees are untouched. But I've seen the work that they've done to my neighbors' trees. The work leans more towards "let's get this done fast and make sure we never have to come back here" as opposed to "let's make sure this thing looks half-decent when we're done."

Posted by: RonF at July 23, 2012 03:20 PM

Given that people like trees, have always liked trees, will continue to like trees and that this cannot have been any surprise to anyone for generations, why don't the utility companies bury the lines? No worries about tree limbs, no worries about ice storms, no worries about a truck hitting a power pole, etc., etc.

That's an easy one. They're doing exactly that near my office:

The McLean Revitalization Corporation contributed $1.3 million. The rest of the $3.5 million is from a Fairfax County bond passed about 10 years ago, with additional funds from the general county budget and proffers. The cost would have been higher if the affected property owners hadn’t agreed to grant easements.

It’s taken two years to get the easements for the 16 separate properties affected, Minnix says. That includes three gas stations, three banks, Chicken Out, Merchant Tire, 7-11, Starbucks, Boston Market, a dry cleaners, Franklin Sherman Elementary School, and a McDonalds, which has since closed and is being used as a staging area.

According to Mannix the project costs about $1,750 a linear foot; if the county had to pay for the land, the cost would rise to $2,400 to $2,500 a foot. He calculates the cost at $13 million a mile.

Not everything will be underground. There will be four Dominion four by eight-foot transformers and switchpads on the surface plus several small Cox facilities.

Underground utilities minimize—but don’t prevent—power outages. There won’t be wires that can be knocked down by trees during a storm, but an outage could still occur if there is a lightning strike. And if there is an outage, repairs could take longer if the underground wires have to be accessed.

***********

And then there's this - oh! the humanity!!!

New housing projects often have underground utilities, usually paid for by the developer with the cost passed along to homebuyers. Burying utilities in older, residential neighborhoods would require cutting down a lot of trees.

Posted by: Cassandra at July 23, 2012 03:27 PM

Buried power lines are not fool-proof.

IIRC at least once a year a backhoe would find the main communications trunk or the power lines buried just outside of the BACC campus, which was beside a main thoroughfare in the area. Even when Miss Utility marked the area... Just as better armor begets better firepower, fool-proof begets a more capable fool.

The BANG! Whoa! Oh Hail! event would usually result in entire regions of the county going dark and/or ether-bits expiring prematurely, all packeted up with no place to go...

That said, I surely enjoy the surrounding countryside not having suspended utility lines on creosote poles blocking my view of the, trees...

Posted by: bthun at July 23, 2012 05:28 PM

It's hugely more expensive to bury the lines, as we discovered when we built here -- our covenants require the lines from the road to the house to be buried. Also, it's much harder to repair the lines underground. They may be less subject to damage there, but if something does go wrong, it tough to find and fix the problem.

Downtown Houston has mostly buried utilities. For the last five or six years that I worked there, they were in a continuous process of digging up huge sections of the downtown streets to repair utilities. What was funny was that they did it over and over, repaving each time, but coming back to fix a new area of infrastructure each time. Our gummint in action!

Posted by: Texan99 at July 23, 2012 10:59 PM

Grim, the part I can't understand is why it would be OK, then, to transfer title to the state, but not OK to transfer title to a willing buyer with some limited strings in favor of the state. I get that anything we give to the state diminishes our private rights; that's a point we normally agree on. On the other hand, I don't have any private rights in some other guy's real estate, so if he wants to give it to the state, I don't see how I have a right to complain, as if I had standing to assert his loss as well as my own.

The "hybrid" state/private arrangement seems to bother you a lot more than it does me. I see it as leaving more control in private hands than an outright transfer to the state would have done.

Posted by: Texan99 at July 23, 2012 11:06 PM

The state never ceases to have title to the land; their alloidial title continues to exist even while you hold the land in fee simple. Thus, if someone dies without heirs the land returns to the state by escheat.

What I would like to assert is that the state ought not to be allowed to claim more than the five traditional rights for land that it does allow to be sold privately. That's the freest we have ever been able to make land from state control. We've never been able to really own our land; but we've been able to hold them to the five duties defined in Magna Carta's revisions, and simplified in 1290. This is the highest degree of ownership, and therefore of practical liberty, we've ever had.

So when land is available to be held from the state, I think we ought to defend the principle that the state should be held to the traditional bargain. Otherwise we lose that other traditional English concept (as indeed the English have lost it): "Every man's home is his castle." As per the law recently enacted in Indiana, in America your home still is your castle. You can even hold it against the state, provided that the state is acting illegally. (If you are the one acting illegally, the traditional bargain allows the state to seize your land.)

So why is it worse? Because if you sell the land outright to the state, their ownership hasn't really increased; alloidial title always allowed them to take it back, if only by eminent domain. But if you allow the system of bargains to weaken with land that 'remains' in private hands, there is a danger of a serious erosion of our traditional liberties. So, at least, it seems to me.

Posted by: Grim at July 24, 2012 12:03 AM

So when do we start bewailing why they have to dig up trees we've planted on buried power lines to service them?

Posted by: MikeD at July 24, 2012 09:18 AM

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