Chapter 1: Why “Property” - Foreign Military Studies Office - U.S. Army

dweller’s right to deny access and will try to punish the trespasser.More complicated still is the non-right of persons living hundreds ofmiles away to pollute the air with acid rain, which diminishes the valueof the right to unfettered enjoyment. It is very possible that someonewould make legal demands respecting this type of non-right.Additionally, our example of suburban land is placed in a NorthAmerican common-law jurisdiction. That is to say the tradition ofdecisions and case precedents weighs on the manner in which eachright might be brought to and considered by the courts. Still, so manycodes, covenants and local statutes apply that the division of ownershipor its analysis would not be very different if the location had been set insome other Western country with a code-based property law tradition.If someone were to own all the various rights in a piece of land,it would be said, under English common law, that the land was ownedin "fee simple absolute" or that the owner "held the fee". Of course, nopiece of land is really held in fee these days. The government alwaysfinds the right to tax, over fly, zone or condemn. The closest a wouldbetotal owner can come is to hold a clear title to a remote piece of dirtoutside any school district or municipality, insured by a reputable andsolvent title guarantee company. Not many of us want or can afford tolive on such a plot. If we did, we would find that complete ownershipof the land still entails some public and private duties. A restrainingorder could be slapped on us at the request of even distant owners if wewaste the land or despoil it in some way that endangers their lands,enjoyment of public lands, or even that endangers some species ofanimal. An owner, unless he is the nuke-armed tyrant king, cannot dojust anything he wants.The community is going to hold some common rights in privateproperty no matter how dear a price is paid for the dirt. In addition, theworth of land and the measure of its worth in the marketplace areintimately related to personal priorities consciously or subconsciouslyassigned to various kinds of rights in land. As we gain a greater controlof some rights, we find that the value of the property (probablyreflected in its market price) is very limited in relation to other rights.25