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Possession and Dispossession in Property Law on Another Person’S Property (We Call It a Restrictive Covenant Or a Servitude)

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Possession and Dispossession in Property Law on Another Person’S Property (We Call It a Restrictive Covenant Or a Servitude) ORIGINS: POSSESSION AND DISPOSSESSION 1 IN PROPERTY LAW 1.1 BEGINNING PROPERTY Often Property casebooks start with a statement from William Blackstone’s Commentaries on the Laws of England, which describes the seemingly absolute rights associated with property: There is nothing which so generally strikes the imagination, and engages the affec- tions of mankind, as the right of property; or that sole and despotic dominion which one man exercises over the external things of the world, in total exclusion of any other individual in the universe.1 Blackstone’s classic statement of the ‘‘sole’’ and ‘‘despotic’’ dominion of property rights is appealing to those who believe they can do whatever they like with their property. They can use it however they would like; they can build whatever they would like on it; they can sell it to whomever they would like; they certainly can keep people off of it — the list goes on and on. However, much of what we study in property class contradicts these common assumptions. We study the limitations of rights of property. One neighbor’s right to use her property is limited by the other’s right to be free from interference; one person may have a right (we call it an easement) to cross another’s property; one neighbor may have a right to prevent building 1. 2 WILLIAM BLACKSTONE,COMMENTARIES ON THE LAWS OF ENGLAND *2 (1765). Blackstone’s often-quoted statement reiterates the notion of long-standing precedent and the value of property in our society in casebooks that introduce property rights by dispelling absolutist myths. See, e.g.,A.JAMES CASNER ET AL., CASES AND TEXT ON PROPERTY 785-838 (5th ed., 2004); JOHN E. CRIBBET ET AL,PROPERTY:CASES AND MATERIALS 3-4 (7th ed. 1996) (same). Dwyer and Menell delay their discussion of absolutism of property until well into their book. See JOHN DWYER &PETER S. MENELL,PROPERTY:AN INSTITUTIONAL APPROACH 273 (1997). 3 4 Chapter 1. Origins: Possession and Dispossession in Property Law on another person’s property (we call it a restrictive covenant or a servitude). Furthermore, numerous statutes and regulations affect how a prop- erty owner can use her property. From zoning regulations, to civil rights statutes, to environmental regulations, such as restrictions on development of wetlands, owners face many limitations on their rights. The array of restrictions on the rights of property owners leads one to conclude that property rights are not absolute. Property rights are limited by and exist in conjunction with the rights of others. Understanding the complexities of these relationships is the key to understanding property law. The materials in this book expose you to the relationship between race and property law, and the impact of the law on all people, whether or not they own property. Eminent domain, for example, refers to the power of the sovereign (government) to ‘‘take’’ property from its citizens. However, the power of eminent domain is not unlimited. The property must be taken for ‘‘public use’’ and the sovereign must pay just compensation (usually the fair market value) to the dispos- sessed property owners. What ‘‘public use’’ means has been hotly debated in recent years, especially after the United States Supreme Court’s 2005 decision in Kelo v. City of New London, 545 U.S. 469 (2005). Despite these restrictions on the sovereign’s power, eminent domain has been the legal mechanism by which some communities have been torn asunder. Yet, even Blackstone, with his vision of ‘‘sole’’ and ‘‘despotic’’ domin- ion, warned us not to look too closely at the origins of our treasured prop- erty rights. For if we did, we would likely find an inequitable origin — and the discomforting truth that our right of possession depended a great deal on others’ dispossesion. Blackstone observed: Pleased as we are with the possession, we seem afraid to look back to the means by which it was acquired, as if fearful of some element in our title; or at best we rest satisfied with the decision of the laws in our favour, without examining the reason or authority upon which those laws have been built. BLACKSTONE’S COMMENTARIES, supra note 1, at *2. Blackstone accepted the utility of refusing to interrogate the source of title. For, presumably, such an inquiry might destabilize respect for property. As Blackstone wrote, ‘‘It is well if the most of mankind will obey the laws when made, without search- ing too nicely into the reasons of making them.’’ BLACKSTONE,COMMENTARIES, supra note 1, at *2. Thomas Paine, in his pamphlet Common Sense (written at the start of the American Revolution), used such a technique to undermine the basis of heredity nobility, one of the key organizing principles of English society: England, since the conquest, hath known some few good monarchs, but groaned beneath a much larger number of bad ones; yet no man in his senses can say that 1.1 Beginning Property 5 their claim under William the Conqueror is a very honorable one. A French bastard landing with an armed banditti, and establishing himself king of England against the consent of the natives, is in plain terms a very paltry rascally original. It certainly hath no divinity in it. Thomas Paine, POLITICAL WRITINGS 13 (Bruce Kuklick ed. 2000). Paine’s revolutionary message was clear — if hereditary nobility had such dishon- orable origins, then no respect need be accorded to such ‘‘armed banditti.’’ Those seeking to destabilize a regime often question the legitimacy of its origins and those seeking to support the regime do not want to see it questioned. Others, however, sought to provide a justification for property rights, even as they might appear at first glance to be inequitable. When William Paley wrote his treatise on moral philosophy in the early nineteenth century, he spoke about the seeming incoherence of property law. He asked readers to imagine a system in which some labored for others. This makes little sense at first inspection. Paley used a vignette of birds to suggest property law’s hidden significance and logic: If you should see in a field of corn a flock of pigeons, all of whom, save one, were engaged, not in choosing for themselves the best food, but the worst, and reserving the best for that single pigeon, the weakest and perhaps the worst of the flock; and if, while that single pigeon was devouring or wasting at pleasure, you should see, when another hungry and hardy pigeon touched a grain of the hoard, all the other pigeons fly on the intruder, and peck it to death; you would then see nothing more than what is practiced every day among men. In civilized society, many persons toil to find superfluities for one, sometimes the least deserving of his species; getting for them- selves only the worst and smallest share, and quietly look on, while they see the fruits of their labor spent or spoiled by that single one or his minions. They will even join to hang a man, whose necessities may have led him to take the smallest particle from the hoard so unequally distributed. PALEY’S MORAL AND PRACTICAL PHILOSOPHY 69 (Richard Green ed. 1835). This chapter starts off in another way — exploring dispossession as an origin of property rights. The question of dispossession is a more challenging one. Chapter One looks at a variety of materials in order to explore that ‘‘hidden’’ story of dispossession. As we do, several issues arise: 1. How should a court deal with claims to property that has been unjustly taken? 2. Is it appropriate for a court to question the morality of title to property? 3. How should a court deal with a claim by a property owner or a non-property owner? 6 Chapter 1. Origins: Possession and Dispossession in Property Law 1.2 DISPOSSESSION: OWNERSHIP OF ANOTHER PERSON Let us begin with a case, then, with humans as property. This is the most profound type of dispossession possible — the ‘‘taking’’ of individuals’ freedom to control their lives. Thus, the idea of ownership of a human being obviously raises critical issues of morality. How did courts approach those fundamental issues of morality? How did they deal with claims that one person should not be owned by another? Mostly, courts did not even begin such inquiries. To formulate some initial answers to how courts approached slavery, we begin with The Antelope, a case involving the origins of property in another human, the international slave trade, piracy, and the responsibility of the United States to uphold the law of nations. The complex chain of events that form the background to The Antelope began when a privateer ship left the port of Baltimore in 1819 and continued through 1825 when Chief Justice John Marshall of the U.S. Supreme Court decided the fate of the surviving human cargo aboard the captured slave ship. The original vessel, the Columbia, sailing under a Venezuelan registry, clandestinely left Baltimore harbor with a crew of 30 to 40 Americans. The privateers changed the ship’s name to the Arraganta, hoisted the flag of the obscure Latin American state Artega, and began preying on slave ships south of the equator along Africa’s west coast. The first ship they attacked was an American ship, purportedly the Exchange from Bristol, Rhode Island. From this American ship, the Arraganta confiscated 25 newly captured slaves; the ship then proceeded to attack various Portuguese vessels and confiscate the slaves aboard them. Finally, the Arraganta captured The Antelope, a Spanish ship, carrying an estimated 160 slaves. The privateers (whom the opinion also called ‘‘pirates’’) sailed the Antelope and the Arraganta to Brazil to sell their bounty of slaves.
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