Curran, your given situation brings up the problem of “traditional right of way”. A new owner is held to allow the same use by the community that the previous owners allowed.

I don’t know if there is a practical answer in the “common law” tradition, but the up front answer is for all such information to be made available to any prospective buyer, and therefore the prior owner will take better care of things in order to get the most money for their property when sold. I know I would consider it fraud if I bought property with such an easement without knowing it was there.

In Curran’s example, if the factory began polluting in a fixed area before any other property was established in that area, then any future owners who established property in the affected area would have to tolerate it. In fact the act of polluting the unowned area probably should be viewed as taking posession of the area; the factory would then have ultimate say in allowing or disallowing future homesteaders to take posession of property in the region, and would have ultimate say in setting out conditions on the transferred property (such as requiring new owners to tolerate unlimited future pollution from the factory). The property rights of homesteaders in the pre-polluted area

If there were already homes established before the factory was built, or if the factory began producing pollution in a larger area, so that pollution was falling on previously unpolluted homes, then the factory would be stepping outside its rights and onto the rights of others, and would be liable for damages to those parties.

Pollution does not resolve the paradox, simply shifts it.

First, I generally agree with the principle of original ownership for establishing property rights, but not that the principle is sufficient to define all morality nor that it doesn’t require a fair amount of further exploration in the Natural Law to define how much is owned.

If I dig a pond for some flowers next to and dependent on the river, do I now own the river, tributaries, and springs all the way to the origin insofar as it is required to maintain my pond?

Lets say there is a new land opening up. I rent a military size cargo plane and drop popup “Mine!” signs over thousands of square miles. Do I own it? Who defines “use” or “improvement”. OK, I drop some nice flower seeds.

Better yet, I drop a bunch of really smoky torches along a line near the upwind end. Now I’ve polluted thousands of square miles, so I now own those.

Lets say I die the day after (but having mailed my claim, which is found valid) and never do anything else. My will says the estate is to do nothing with the property. So I now own it forever, even though the signs will eventually rot, and/or the smokepots will go out, and the land will never find another use. Or has no one else noted that we sometimes die? What happens to ownership beyond my span of years? Is there a requirement of even maintainence much less some even trivial continued improvement?

Also Hoppe’s system would have the original owner maximize obnoxiousness. If I know that if I don’t continually blast out loud dissonant noises, I will lose the right to, and if I don’t send toxic pollutants across the entire area, I’ll lose that right, my incentive is to put up as many obnoxious speakers and toxic smokepots even if there is otherwise no benefit to me.

Another problem is the contradiction between “physical damage” and not counting value. Lets say some weed-killer flows over to your lawn and kills the dandelions. Did I cause damage or improve the land? There may be a tresspass tort, but how do we measure it? You can kill my dandelions anytime you want if it is tit-for-tat. Otherwise the value of the loss must be established.

Maybe I consider you ugly, and I didn’t have to see you when I originally owned the land – can I demand that you not be visible nor block my view of lands beyond? And that carbon dioxide you keep emiting must stop! At some point, it becomes absurd – the law needs to draw a line between ordinary or common conduct and nusiance. It is not that it can’t be drawn, but that “who’s on first” has by itself no answer.

In a post below I noted that speaking is an act. That can damage the value of property. This generally requires the act to be malicious – the specific intent is to damage the value of you or your property.

Also I will disagree with a subtlety in the characterization of “Self-Ownership” by Aquinas and the other Christian thinkers. Our minds (will, soul, spirit) and bodies are granted by God and under our guardianship – we are responsible for them. The difference is that God maintains a Lein. If you don’t, then you don’t deny slavery, as long as I am the one selling myself into slavery. Or I am selling my will, vote, body, jury finding, respect for property rights, etc. The “self” is that with the right and ability of ownership, not just another thing owned.

If I could use your body before you could take ownership (unless you agree with l4l.org) – say with an electronic implant or hypnosis or maybe just cutting out some cells like embryonic stem cells, Do I now own your body even if your “soul” shows up later?

TZ is right: polluting unowned land, making it unsafe or uninhabitable by one means or another does not confer ownership. Homesteading an acre of land and then installing automatic machine guns to spray the adjoining area’s with bullets is no legitimate way to appropriate those areas.

Rothbard and Hoppe surely agree too: such activities do not come near to anything resembling homesteading.

Do such activities establish a weaker form of property (other than ownership)? After all, their point is that an “easement” is established.
However, talk about “an easement” sounds like a mere evasion.

How would a [libertarian] judge look at the matter? I suppose he would treat it as a question of nuisance, spill-over or neighbourhood effect, not as a question of property rights. Symmetry would be a relevant consideration. I do not think a judge would grant a newly established pig farmer his claim against the one who was there first: “Your pig smells no better than his.”

In other cases, if the polluter for a while profited from the fact that neighbouring land was unoccupied, without bothering to homestead sufficient land to keep the nuisance on his own property, one may wonder why he should be granted the right to enjoy that advantage indefinitely. Why should we not say that he gambled that no one would come to appropriate the land next to his — gambled and lost? I think a judge could properly rule that a new homesteader should be granted the right to force the already established owner to bring down the nuisance / pollution to some acceptable level.

Noise pollution and stench are transient phenomena, leaving rubble and toxic stuff are not.
This raises the interesting question of clean-up costs. I do not continue to own the things I throw away, yet why should this mean that I am no longer responsible / answerable / liable for the harm that they do? I exposed others to the harm by letting those things get out of my control.

I am not formulating any ‘hard rules’ here. Such cases must be judged individually, on their merits, taking into account all the relevant particular information. That is a job for judges, not for legal theorists. A sensible Austrian economist should not presume to have an economic theory that allows us to dispense with entrepreneurial judgment. For the same reason, a libertarian should not presume to have a a theory of law that leaves no room for the judgement of judges.

Jonathan,

Homesteading airspace and owning silence are not helpful concepts here. The problem is nuisance or spill-over effects. Some of these must be tolerated, up to some level, if social life (peaceful co-existence and interaction) is to be possible at all. Others, and all above some level, cannot be tolerated above some level, if social life is to be possible at all.

The issue for libertarians is whether those instances and the corresponding levels of tolerable spill-over effects should be determined by political means (via a monopolistic government or its monopolistic court system) or by economic means (negotiation, contracting, assisted if need be by technical and judicial experts chosen by those who are directly involved.)

A libertarian judge must hear all sides; he cannot escape his peculiar responsibility, which is to define acceptable standards of behaviour for the case before him and to justify those standards with arguments that are pertinent to the case. Of course, there always will be people who do not want to agree to finding a reasonable modus vivendi. There will be those who have agreed to let a judge sort out the case and then refuse to honour the standard he has defined merely because it is not what they want (without showing that his arguments were wrong). Such people may pose problems, even become dangerous, but then libertarianism — or should I say, paleolibertarianism? — is not about abolishing human nature. It about promoting standards of reasonableness within a framework of respect for persons and their property.

The Earth (or Nature) is a trust in the sense that it does not have zero value before someone does something to it. I’ve made that point in other ways saying our bodies and souls (Life and Liberty) also function more as a trust than outright ownership, i.e. you cannot sell yourself into slavery since your liberty is entrusted to you (I’d say by my creator, but use whatever construct you like). Similarly, Life (which I measure from conception to natural death) is something else that cannot be abrogated. It is still murder even if I ask or pay you to kill me.

Some of this derives from teleological ideas – what is the purpose or end of Liberty, or property ownership. I don’t see these so much as ends in themselves which I why I think in terms of guardianship or stewardship and not merely ownership.

Property can be resold (if not despoiled). I don’t see the idea of improvement creating ownership as conflicting as trusts normally increase in value. Doing so would indicate you are a good guardian and ought to continue.

(I’d grant very wide latitude here as to what is considered “improvement” including preserving things in a natural state – finding a really nice acre, different from the hundred others and preserving its state is in a way “improving” it).

I’m new to Libertarian ideals, so this question may seem sophmoric. Why is it reasonable to place more value in the property rights of a “first owner”, than in the property rights of subsequent “neighboring owners”? It seems to contradict the idea that every property owner has exclusive rights. In my opinion, the timing of ownership is irrelevent to the rights of the owner. The only real test is whether property has been damaged. If a factory owner polutes the surrounding area without claiming that area and then another owner claims that area, the simple fact is that further polution to that property is damage. The factory owner can protect themselves by either acquiring the property, limiting polution to a non-damaging amount or contracting with downstream owners for polution rights. Otherwise, the future rights of the factory neighbors are being altered without compensation.

Lisa,
The difference here is that noise (at least at the levels of a trauma center) is not a property damaging polutant. If the hospital had been surrounded by unclaimed property that they routinely dumped medical waste on and then you moved in and claimed an adjacent lot, would the hospital have the right to continue dumping medical waste on your property? Property owners, regardless of order of ownership, should be liable for the physical damage they cause to the property of others. In this sense, the question becomes what constitutes physical damage?

If the hospital is dumping waste on surrounding land, they are effectively homesteading that land as a waste dump — you can’t come along and “claim” it later. Perhaps you can if the hospital doesn’t consider it their property, but then you can’t stop them dumping more waste, or make them clean it up.

If they just dump some pollution and then leave, like the case with the airdropped “my property” flags, and they’re not making use of it, you can claim it — but you get in the polluted state; you can’t make them clean it up.

If they’re actively dumping on it at the time, but disclaim ownership (I don’t know if that makes sense or not; just dropped it in there in case someone thought it did and held it against me), the situation is the same as if they’re using it for access — if you homestead the property they have a track or road across, you can’t stop them crossing your property. So, I think, you can’t stop them dumping more waste there.

Yes, if you buy the property, you’ll work out what rights each party has in the contract of sale.

Peter,

Can you point me to any Libertarian arguments for the access rights that you’ve alluded too? I’d like to read some more about this aspect of property rights.

I’ve always considered homesteading an absolute. If you homestead, you’re claiming land that has not been previously claimed. Therfore, you have sole rights to use of that property. In the case of the hospital example, it may be as Paul C. suggests, the hospital is homesteading by dumping. Thus the situation can never arise where someone homesteads, but still must allow another to pollute their property.

Paul C. brings up another area of property rights that I’m still trying to figure out. How do you define property rights on movable resources such as air and water (rivers, oceans). If someone owns a property that includes a portion of the river. Do they have the right divert the river and collect all water passing through their property? What about the property owners downsteam? Has the property of downstream owners been damaged by the upstream owners actions? A similar question arises in relation to pollution. Can the upstream owner dump as much waste as they like into the river on their property? What rights do the downstream owners have in this regard?

Peter,

You write:

So if I dump a million leaflets with the text ‘This is my property’ from a helicopter over an unowned area then I homestead the area just as if I had stored them in a crate on a few square meters?

Dropping landmines from a helicopter over a large area is just a careless way of storing landmines?

What are you talking about?

The property rights principle is that you can do what you want with and to your homesteaded or otherwise justly acquired property — not that you can use your property to do anything you want (or do not want) to any unowned resource, land or space in the universe.

Let me repeat the point of an earlier post of mine:
Some spill-over effects must be tolerated at least up to some level, if social life is to be possible at all; other spill-over effects cannot be tolerated at all, and none above a certain level, if social life is to possible at all.

Concepts like homesteading, use and so on must be interpreted in relation to human action (i.e. praxeologically, in terms of technological units — see Rothbard’s famous article on Law, Property Rights and Air Pollution in the 1982 Cato Journal). Determining the limits of one’s homestead simply by tracing the physical effects of events that occur on one’s property will not do: if it did then advances in measurement technology would have the potential of setting off endless rounds of litigation. The concept of property would cease to be a concept of order.

No problem. But no, I think you’re misinterpreting what I’m saying. The basis of the “homesteading” principle is this: unowned resources are of no value to anyone (or someone would have claimed them already), so of course you can do anything you want to unowned resources (i.e., it’s not harming anyone); when you make use of a resource, because you find it of value to you, you’re claiming ownership. But of course you don’t claim ownership just by touching a thing. If you walk over some unowned land, you’re not homesteading it. Similarly if you drop “this is my property” notices on it, or landmines — that’s not necessarily making use of it in any way (there’s apparently a guy who claims to own the entirety of every body in the universe apart from the earth; he filed papers taking advantage of some loophole in US law, apparently…he actually sells off blocks of land on the moon. It goes without saying, his claims are bogus).

But if you want to use some block of land as a storage area for your signs (or mines), or cross it habitually to gain access to another place, then that is homesteading. The distinction is what you intend (do you plan on storing more things there later? Do you expect to recover the things you left there? Etc.)

If two (or more) people can use the same resource without interfering with each other, then they can all homestead it, and have a legitimate claim to ownership; but to the extent that they do interfere with each other’s use of resources, the first user is the owner. So you can do anything you want with your section of river, as long as it doesn’t interfere with anyone downstream. If someone downstream later does something new that uses more water, he limits what you can do later still if the water is available – but if you’re already using it, he’ll just have to find water elsewhere (or not do his thing). I.e., everybody is in the same position with respect to each other, regardless of who is upstream and who downstream. Advances in measurement technology cannot retroactively make some pollutant a problem – if it was a problem when it started, the polluter is at fault; if it wasn’t, it never can be in the future. In other words, you’re wrong: no “spillover effect” has to be tolerated at all.