6/27/2005
KUFM / KGPR
T. M. Power

            The US Supreme Court last week confirmed that local governments could condemn private property for economic development purposes. That triggered howls of protest that now no property was safe. Rogue judges, we were told, had again attacked a fundamental American right.

            These ideological claims about property rights tend to ignore our own history. The fact is that our legislatures and courts have constantly redefined “property rights” as our society and its economy have changed. There has not been a single trend in this evolving definition of property rights. Consider one cycle of changes. [1]

            Originally, property rights were a legal tool that one property owner could use to block property uses by adjacent owners when those uses damaged the “quiet enjoyment and use” of their property because of “spillover effects.”  That should sound familiar. It is the basis for modern “nuisance” suits and the contemporary principle that the “polluter should pay.”

In an 18^th century world of low-density settlement and extensive agricultural uses of land rather than intensive industrial uses that was not surprising. When there were conflicts between property owners, the existing pattern of property use prevailed against the new use that damaged adjacent owners. People nodded their heads and said “of course.” Property rights in that setting were a conservative force.

            Industrialization ultimately led to dramatic changes in property rights, changes that for a while seemed to largely abandon the idea that property owners had a right not to be harmed by adjacent land uses.  Courts shifted dramatically to emphasizing the right of owners to use their property, almost regardless of the impacts on other property owners and citizens.

In an 1886 Pennsylvania case where a widow sued because the pollution from an upstream coal mine had destroyed her fish pond, water supply, and riverside land, the court ruled that the problem was created not by the coalmine but by gravity and stream flow that incidentally move the pollution to her property. The economic value of the coalmine was much greater than the residential value of the widow’s homestead. To quote the court: “To encourage the development of the great natural resources of a country, trifling inconveniences to particular persons must sometimes give way to the necessities of a great community.” “We must have factories, machinery, dams, canals and railroads. They are demanded by the manifold wants of mankind and lay the basis of all our civilization.”  Why such productive and profitable economic activities could not pay for the “trifling” damage they did to others was not explained by the court.

            The definition of who had what property rights had shifted to accommodate the dominant economic interests of the time. This legal pattern continued into the middle of the 20^th century. In 1954 the Pennsylvania courts again ruled against a homeowner who sued because the poisonous hydrogen sulfide gas emanating from piles of mining wastes were corroding everything in his house from the paint to appliances to plumbing, not to mention his health. The court ruled that the rights of the mining company “to make normal and customary use of its land” trumped the “do no harm aspect” of Common Law.  As the court said: “One’s bread is more important than landscape or clear skies... Without smoke, Pittsburgh would have remained a very pretty village.”  Note the derisive dismissal of a citizen’s and adjacent property owner’s right to be free of poisonous polluting gasses.

            But things change.  Only twenty years later Montanans adopted a new constitution that declared that citizens had a constitutional right to a clean and healthful environment. At about the same time, at the federal level, the Clean Air and Clean Water Acts also clearly declared that industrial operations could not use their property in ways that polluted air and water beyond the levels established by law. Economic use of property no longer automatically trumped people’s rights to a healthful environment. The ancient Common Law “do no harm” limitation on the use of property was given explicit legal expression. Most citizens now accept the property principle that the “polluter should pay” for the damage done.

            Many industrial corporations continue to howl that these environmental laws represent an unconstitutional violation of their right to use their property as they see fit. Environmental laws, they insist, effectively “take” their property.  What they are trying to hang on to is the late 19^th and early 20^th century industrial version of property rights.  But it was that industrial period that was the exception in the longer history of property law that had always focused on protecting people and their property from the damaging activities of the few. What our legislatures and courts have done over the last half-century is simply to return to that older legal tradition after the threatening excesses of an industrial economy.

            This debate over the legitimacy of industrial-era property rights will not go away soon. Many of the industries that most benefited from that period have committed their fortunes to think tanks and lobbying organization to roll back modern environmental law and freeze the legal definition of property rights where it happened to be when those industries were the economic and political kings.

 We will all be worse off if they win that retrograde ideological battle.