Property

Antebellum judges furthered the tumultuous economic growth of the era by redefining property law. Eighteenth-century Americans thought of property as an institution "merely of security," in which its possession defined social status. ²⁸ Two other important ideas were part of this static conception, and both of them derived from Blackstone Commentaries. The first, absolute domain, was summed up in two phrases from Blackstone: "Use your own property in such a manner as not to injure that of another," and "the owner of the soil owns to the sky." ²⁹ Absolute domain gave to every property owner a veto over the acts of others that might disturb the quiet enjoyment of his land. The second idea was vested property rights, which guaranteed to every individual the right to enjoy ownership of land free from arbitrary governmental interference.

Absolute domain and vested rights made sense in an economy characterized by low-level activity. But, as the tempo of economic activity quickened in the early nineteenth century, these concepts came under growing scrutiny. Americans increasingly adopted a dynamic conception of property, one that stressed property as an "institution of growth." ³⁰ This dynamic view of property complemented the needs of growing communities. The economic success of the commonwealth depended on government intervention in the marketplace through devices such as eminent domain to foster economic expansion. To put property to new uses, yet "simultaneously preserve a reasonable measure of security for vested rights, became a critical task for the [judiciary]." ³¹

Antebellum property law moved through two distinct phases. During the first phase, the doctrine of priority and prescription held that the best way to promote initial economic activity was to give a monopoly over the uses of land to those persons willing to undertake the risks of development. The rights they enjoyed were prescriptive; that is, because they were there first others could not interfere with the uses they made of the property. By the 1830s this doctrine yielded to a second, instrumental concept of property law, known as the reasonableness or balancing doctrine. It stressed the efficient use of resources based on competition and rejected as inefficient the monopolistic features of absolute domain. The rule permitted courts to choose among competing economic interests based on their assessment of the proper balance to be struck between the rights of the individual and the rights of the public.

The judicial transformation of property law was extensive. For example, courts either abandoned or modified the common law tradition of "ancient lights," which had prevented the erection of buildings that cast a shadow or blocked the view of an adjoining property owner. Judges also weakened the doctrine of "waste," which had required a tenant to tear down any improvement he had made to the land at the end of his lease. The judicial acceptance of a dynamic view of property law based on economic efficiency and public rights doctrine was especially evident in three areas: water rights, eminent domain, and nuisance.

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Date: 2015-01-29; view: 668