🚀 go-pugleaf

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Read the excellent article in the current issue of the 
quarterly DISSENT by Eric Freyfogle entitled something like 
"Ecology and Property." Freyfogle discusses the basis of 
"property rights" notions, and explains that our 
understanding of what constitutes "property rights" is an 
ever evolving thing. The most zealous property rightists cry 
"takings!" whenever a restriction is imposed on their 
ability to use their property in any way they see fit. The 
trouble is that never has the law actually recognized any 
such thing as "absolute property rights." Property rights 
have always been rung around with many restrictions to 
protect the neighbors and environment that property was 
surrounded by. No one has ever had, for example, a right to 
set fires on their property unimpeded.  The most basic 
problem is to establish a baseline of what rights inhere in 
a particular property right. Customary and long established 
uses of property are generally regarded as so inhering. But 
even customary uses must sometimes be restricted and turned 
into "noncustomary" ones. We are currently in a time of 
great ferment with respect to what will continue to 
constitute "customary use." Imagine, for example, that the 
community had always been sufficiently ecologically 
enlightened to recognize the importance of healthy wetlands 
to our environment. Then it would never have been considered 
a "customary use" of them in the first place to drain and 
develop them unfettered, anymore than randomly setting fires 
to one's property would be. We wouldn't even be having many 
of the disputes we have today if that had been the case. But 
it so happens that society changes, and with time people 
grow enlightened about formerly "customary uses" that should 
no longer remain so customary. The fact that they were 
customary in the past at most gives property owners a 
legitimate expectation of some accomodation. It is only fair 
that a new law with a disparate impact on some property 
owners have some sort of phase-in provisions to ease that 
impact. This does not mean they should necessarily be given 
indefinite compensation for all the "value" that the 
property could have theoretically had but for this change. 
It does not mean that all future owners should receive the 
same compensation even after custom has changed. It means 
only that some politically expedient and fair approach may 
be needed to ease the burden. But only for as long as it 
takes to remove that "customary expectation," so that no 
property owner can rightfully claim he was "fooled" into 
believing he could do something with a property only to 
later get the rug pulled out from under him by the 
government.

Guy Berliner

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-- 
Finger berliner@netcom18.netcom.com for pgp key. 
Please send me encrypted mail! Everyone else will see gibberish,
but I'll only see plaintext, cause I just push the "Decrypt"
button in my copy of Windows Z-mail! (Ask me for more info.)