Property Rights and the Industrial Revolution

In the 1700s, property owners acquired prescriptive rights if they were the first owner at a specific location.
Or, if they had performed an action or enjoyed something over time, they could exercise rights over others' property to protect their own.
Latin maxim: "Use your own property in such a manner as do not injure that of another."
Blackstone's commentaries on the law of England in the 1770s:
- Volume two focused on property law.
- Included property transfer, nuisance suits against neighbors.
  - Example: If someone built a house with an overhanging roof onto your property, you had rights to stop it.
  - Ancient lights: Preventing neighbors from blocking sunlight or moonlight after you've enjoyed it for a time.
  - Corrupting the air: Preventing neighbors from creating disturbing smells on their property to prevent enjoyment of your property.
  - Doctrine of lateral support: Neighbors can't build in a way that causes your house to collapse, particularly on a hill.
  - Riparian Rights: You cannot cut off a neighbor's stream of water coming from your property.
  - All of the mentioned rights work really well in colonial America because they maintain community harmony, they protect people who are there first.

Common law also stated that landowners had sole and despotic dominion over their land, owning everything from the soil to the sky.
Inherent contradiction: You have sole ownership but can't harm neighbors.
19th Century Shift:
- Individualism emerged.
- Relativism replaced absolutism.
- Equality replaced priority.
- Reasonable use replaced prescription.

New Latin maxim: damnum absque injuria stating that you can have an injury without a legal remedy.

Neighbor may harm you somehow but you can't recover
Began with riparian/water cases.
Directly related to the Industrial Revolution in America.
Industrial Revolution couldn't start in America before 1780 due to British mercantilism.
Britain outlawed colonial manufacturing, so little manufacturing existed in colonial America until 1807.

Courts shifted to a utilitarian rule of reasonable use.
Palmer v. Mulligan (1805):
- Upstream owner dammed a stream for a mill.
- Even though he didn't have prescriptive rights over the water, and it caused a little inconvenience to others.
- Court of Appeals through Brockholz Livingston said that it was okay.
- A public whose advantage is always to be regarded would be deprived of the benefits which always attend competition and rivalry
- Courts should consider the public good and equal rights.
Platt v. Johnson & Martin v. Bigelow:
- Rights are correlative, not absolute.
- Courts should aim for public good and equal rights, not just priority.
Joseph Angle opposed this shift, advocating for first-user rights.
Trend favored Palmer v. Mulligan view.

Lemuel Shaw (Chief Justice of Massachusetts) was a key figure in the 19th-century legal change.
Carey v. Daniels (1844):
- Cotton mill significantly diverted water.
- Shaw said that the test is not the injury of users, but the usages and wants of the community.
- Mills are vital for society, allowing dams for water.
- Community benefit outweighs private property owner suffering.

Thurston v. Hancock (1815):
- Lateral support case.
- Hancock built a deeper foundation next to Thurston, causing Thurston's house to collapse.
- Court ruled Hancock wasn't liable if he didn't intentionally cause harm.
- Got rid of the idea of lateral support
- Thurstons' house collapsing was deemed a "price of progress."
Parker v. Foot:
- Ancient lights case.
- The court refused to adopt the common law rule of ancient lights, deeming it unsuitable for growing American cities.
Greenleaf v. Francis (1836):
- Underground water rights case.
- Court held that there were no prescriptive rights to underground water.
- Francis had a reasonable use of water and could use it.
Auburn & Cato Plank Road Co. v. Douglas:
- Douglas removed a fence on his property along a turnpike.
- Court sided with Douglas, stating he could do what he wanted with his land as long as there's no malicious intent.
- Sic utero tuo, I.e. use your own property so as not to injure that of another, is utterly useless as a legal maxim.

Canal Boom: Canal mileage increased from 100 to 3,300 miles between 1816 and 1840, largely funded by the public.
Railroad Expansion: Railroads grew from 73 miles in 1830 to over 30,000 miles before the Civil War, with significant public funding.

Taxing power
Police power
Eminent domain: Taking of private property for public use, with just compensation (5th Amendment).
Courts extended eminent domain to private corporations for public use.
Bonaparte v. Camden & Amboy Railroad:
- Public use, not public ownership, is required.
Gaston Raleigh Railroad Co. v. Davis:
- Praise for private enterprise in executing public works by Justice Thomas Ruffin.
Greenville & Columbia Railroad Company v Partlow:
- Railroad is a public use.
Sharpless v. Philadelphia:
- Public taxation can aid private corporations for public use, based on the general welfare.

Judges, not juries, decide the amount of compensation because it's an issue of law.
Offset Provisions: Benefits to the property owner from the project are deducted from compensation. Johnson v. Chesapeake & Ohio Canal Co. example provided.

Damage without title transfer generally isn't compensated.
Callender v. Marsh (1823):
- Regrading streets left Callender's house with a 9-foot drop-off, but it was a non-compensable consequential injury.
Hollister v. Union Co.:
- Stream straightening flooded Hollister's land.
- Non-compensable, consequential injury.
Henry v. Pittsburgh & Allegheny Bridge Co.:
- Dirt piles blocked access to Henry's house.
- Non-compensable consequential injury.
Richardson v. Vermont Central Railway:
- Embankment runoff damaged Richardson's house.
- Non-compensable consequential entry.
Bellinger v. New York Central Railroad:
- Railroad embankment flooded Bellinger's farm.
- Non-compensable consequential entry.
These cases exemplify that the government can injure property with no consquences as long as they title is not taken, placing the burden on those in the way of progress.
Note there was a reference to New London versus Kilo, a 2004 Supreme Court case.