Playing By Different Rules?: Property Rights in Land and Water
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Description
One of the ancient philosophical conceits about the nature of the universe was that it was divided into three separate elements: air, water, and land. As an explanation of elementary particles, this antique tripartite division is an arid intellectual curiosity. But, ironically, in dealing with the organization of property rights systems, this early classification system is right on the mark. The focus of this chapter is not primarily air rights of all kinds and descriptions, although the topic does come up. Instead, it deals systematically with the differences and similarities that arise in forming property rights systems in both land and water. One point common to the two types of systems is that each works in two dimensions. One dimension asks about the assignment of property rights to two or more private parties. The second dimension deals with the relationship of all private right holders, either individually or in groups, to the state. Viewed globally, these cases are concerned with the taking or regulation of land, including land use, which the government may do only if it provides an owner with just compensation for any property interest that is eliminated or reduced. The usual prism through which this topic is raised in the United States is the takings clause, “[N]or shall private property be taken for public use, without just compensation” (U.S. Constitution, Fifth Amendment), and the allied doctrines that develop under analogous state constitutional provisions. On the first issue, dealing with private disputes, the uniform rule with respect to both land and water starts with an assumption of parity of entitlements among all participants in the original position. Although the remedial side of the question will not be stressed here, the implicit assumption is that both damages and injunctions are available to provide redress for past grievances and protection against future ones, all in an effort to steer the realignment of property rights through voluntary transactions. In contrast, that assumption (to some extent) cannot be fully realized in any takings context because, by definition, the government exercises a set of unique powers in relations requirement is satisfied, as it typically is, injunctive relief is off the table so long as the government is prepared to pay just compensation. These second-order questions are again put to one side. This chapter addresses the key challenge of outlining the main features of a private and public system of law with respect to both land and water. The feel, texture, and characteristics of these two resources differ in ways that tend to create large differences in the legal regimes that govern them. The dividing line between land and water has huge staying power in this area, but it is by no means the sole relevant categorical division. As Daniel Cole and Elinor Ostrom (2010) have stressed (see chapter 2 of this volume), differences in property rights within each of these broad categories are at least as important as the similarities. A sensible conception of the much-criticized notion of natural law helps inform analysis of the many doctrines of private and public law that are discussed in this chapter.
Source Publication
Property in Land and Other Resources
Source Editors/Authors
Daniel H. Cole, Elinor Ostrom
Publication Date
2012
Recommended Citation
Epstein, Richard A., "Playing By Different Rules?: Property Rights in Land and Water" (2012). Faculty Chapters. 378.
https://gretchen.law.nyu.edu/fac-chapt/378
