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Source link: http://archive.mises.org/10004/homesteading-abandonment-and-unowned-land-in-the-civil-law/

Homesteading, Abandonment, and Unowned Land in the Civil Law

May 22, 2009 by

As you may recall, I’m a libertarian and intensely interested in various normative theories regarding property rights, including justifications thereof, Lockean-type homesteading theories, and Austrian economics as related thereto. I have found your own formulations in this regard (e.g. in sec. 1 of your Property treatise)–e.g., your discussion of the nature of property, including its scarcity–to be exquisite and to highlight the essential compatibility of the basic notions of civilian property with the Lockean-libertarian conception thereof, despite the legal positivism and deviations of the civilian system.

I was perusing the Civil Code and your Property treatise recently, and studying in particular issues such as how the code deals with abandonment, acquisitive prescription, petitory actions, and so on. I was struck that I could find nothing about unowned immovable property or acquisition of ownership of same by acts of homesteading. I suppose I had never noticed this before. Were I borrowing from the Civil Code to hammer out a more libertarian-compatible code of a stateless libertarian society, such provisions would have to be added. The code would have to specify that if an immovable is abandoned, it becomes unowned once again (unless possessed by another). And it would specify that someone may acquire ownership of or appropriate an unowned parcel by appropriate acts of homesteading–transforming it, putting up a fence, etc.

But as far as I can tell none of this is contemplated, at least not directly, in the current civil law. In my beginning couple years as a lawyer, 1992-94, I practiced oil & gas law and title opinion type work, before shifting to patent law, and perhaps I’ve forgotten the justification for this, but from what I recall, to prove perfect title you trace it back to a previous owner, all the way back to the sovereign… as contrasted with what you would do in Lockean utopia where you would trace an unbroken chain of title back to some natural person’s act of homesteading of the land in its unowned state.

The code seems not to contemplate even the possibility of unowned land. It seems to presuppose, in legal positivistic fashion, that all title can be traced back to the state; and it seems to leave no room for abandonment of title to immovables–otherwise there would need to be some homesteading provision. It seems to me that acquisitive prescription cannot really be used as a substitute for homesteading, since homesteading need not satisfy the longer time periods and other requirements of acquisitive prescription.

I could be that my practical knowledge is rusty and I am missing something obvious here, but I wonder why it is not an obvious glaring omission that there are no homesteading and related provisions in the code regarding unowned immovables?

I would greatly appreciate any thoughts you might have on this, or pointers as to any further material I could peruse for enlightenment.

***

see my comment here, from years ago (1994 or so)–and see my heroic use of scare quotes even back then:

http://blog.mises.org/archives/003745.asp#comment-19438

Stephan Kinsella
Yancey– you are right, the state does own our property. I have noted this before in this law review article (endnote 59 or 60),

It is interesting to note one (only apparent, as will be seen below) theoretical difference between the civilian and common law conception of real property ownership, concerning the right of the sovereign (king or state) to ultimate ownership of land. In Louisiana, “Ownership is the right that confers on a person direct, immediate, and exclusive authority over a thing. The owner of a thing may use, enjoy, and dispose of it within the limits and under the conditions established by law.” CC 477. Lands in the thirteen original American colonies were held in tenure, however, with the king as the ultimate lord and owner of the land. CORNELIUS J. MOYNIHAN, INTRODUCTION TO THE LAW OF REAL PROPERTY, 7-8, 22 (2d ed. 1988); see also ROGER A. CUNNINGHAM, WILLIAM B. STOEBUCK, AND DALE A. WHITMAN, THE LAW OF PROPERTY, Chapter 1 (West 1984). “The American Revolution clearly ended any tenurial relationship between the English king and American landholders. Some of the original thirteen states adopted the view that the state had succeeded to the position of the English king as ‘lord’ and that tenure continued to exist, while other states enacted statutes or constitutional provisions declaring that land ownership should thenceforth be ‘allodial,’ or otherwise declaring that tenure was abolished.” Cunningham, et al., at 25 (footnotes omitted). However, “In the remaining states it would seem that lands are still held in tenure of the state as overlord.” Moynihan, at 23. “Throughout the rest of the United States, it seems clear that tenure never existed.” Cunningham, et al., at 25 (footnote omitted).
However, despite this theoretical difference between civilian and common law ownership, at least in some states such as Pennsylvania and South Carolina, Moynihan, at 23, “Even in the states where tenure may theoretically still exist between the state and one who owns land in fee simple, tenure would appear to have little or no practical significance. For all practical purposes, one who owns land in fee simple anywhere in the United States has ‘complete property’ in (full ownership of) the land.” Cunningham, et al., at 25 (footnotes omitted).

It must be pointed out that, in reality, in none of the 50 United States do nominal “landowners” really have “complete property” in “full ownership of” “their” land. To say that land is owned “allodially” is a fiction. For land is subject to expropriation by way of eminent domain. See, e.g., La. Civil Code 2626 [now La. R.S. 9:3176]:
The first law of society being that the general interest shall be preferred to that of individuals, every individual who possesses under the protection of the laws, any particular property, is tacitly subjected to the obligation of yielding it to the community, wherever it becomes necessary for the general use.

Article 2627 [now La. R.S. 9:3177] further provides:
If the owner of a thing necessary for the general use, refuses to yield it, or demands an exorbitant price, he may be divested of the property by the authority of law.
Furthermore, it cannot truly be said that one “owns” property which is subject to divestment if annual “rents” (i.e., property taxes) must be paid to the sovereign for the privilege of retaining possession of one’s property. Tenure, then, exists after all, in all fifty states, and the theoretical difference pointed to above is not really a difference at all.
Published: June 23, 2005 1:16 PM

{ 2 comments }

Tim Singleton October 2, 2010 at 9:20 am

Is homesteading practiced anywhere in the Western hemisphere or Southern and Southeast Asia with any protections from the law for your efforts?

loki September 22, 2011 at 5:25 pm

the modern codes may not have provisions for the acquisition of abandoned titles (i believe there is 4 types, abandoned, unclaimed/probate/without decedents, foreclosed and public-trust-held which is called ‘crown’ land in commonwealth nations), but, and this is little known, all law of the previous state holding jurisdiction are still in effect unless repealed. this means all british law prior to 1901 in australia is still in force, as is the same for the USA prior to 1776.

one of the most interesting and important of these acts, in my view, is the cestui que vie act of 1666, passed, like the federal reserve act, while everyone was looking the other way (yes, the great fire of london).

it’s a very short act and it can be difficult to understande it’s olde englishe but the essence of it is that all estates are presumed abandoned and as such are being held in trust under the administratorship of the state. it doesn’t directly say it but it is implied therefore that the administrator of the estate, should they step forward and claim that role, will then become the full and sole administration of such an estate. you might think, ‘surely it can’t be that simple’ but it actually is and i have seen evidence personally and testimony from numerous people who have been recently experimenting with this, it is most definitely true and has force at law and any judge who tries to overrule such a designation of the administrative role of a living estate can be properly declared incompetent and unfit to preside. believe me, the state’s lawyers all know it is true, they just can’t admit it on the record because that would mean violating their fifth amendment type right of non-incrimination.

so that’s one little part of the story, and obviously as it relates to estates, which is the trust structure implied in a living man or woman’s body of property (estate) and there is another one, obliquely related – birth registrations consist of the same essential elements of a deed for immovable property, a description of the equity that the title is in reference to. for a person it is, birth weight, eye colour, hair colour, gender, the parents’ names, and usually both foot and handprints. a land title usually contains a description of the location, shape and dimensions of the property.

so, i am posting this here because it seems obvious to me that the writer of the article is reasonably familiar with the laws of property and the principles involved, i have heard one person say that if you can find a title in one of the states i mentioned above, all of which amount to title held in trust by the state for the cestui que vie act ‘lost at see’ estates… that the process simply amounts to surveying the land that has this type of status, writing up a deed including the particulars of the land, having this surveying attested as being true and correct (sworn) by a notary public, and sealed, a certified copy of this original sealed deed held by the claimant, and the original filed into the lands registry claiming jurisdiction and from there at law any such claims of eminent domain are invalid and can be struck down by the administrator of the estate which this deed is held within.

of course they could send in the black helicopters and murder everyone and steal it back but i suspect that if this claim of title is properly published by the claimant after doing these things that any interested party who wanted to could have every single person responsible for the expropriation stripped of their titles and the government made liable for a massive theft and murder operation. there is a growing army of researchers out there who are all working as a distributed, decentralised whole who are working to have it such that no matter who they try to shut up there will always be someone willing to step up and lodge a complaint with the courts and force these people to explain their actions.

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