Property Law and 18th/19th Century Transformation

Prescriptive Rights in the 1700s

• Property owners gained prescriptive rights if they were the first owner or had enjoyed something over time.

• These rights allowed them to exercise authority 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 (1770s) dedicated a volume to property law, focusing on property transfer and nuisance suits.

Nuisance Suits

• Allowed landowners to sue others for using their property in a way that injured the plaintiff's property.

• Examples:

  • Overhanging Roofs: Preventing neighbors from building roofs that overhang and dump rain onto your property.

  • Ancient Lights: Preventing neighbors from blocking sunlight or moonlight that you've enjoyed for a long time.

  • Corrupting the Air: Preventing neighbors from creating noxious smells (e.g., tanneries, candle makers).

  • Doctrine of Lateral Support: Preventing neighbors from building in a way that causes your house on a hill to collapse, even if they build on their property.

• Riparian Rights: Water rights where the first user of a stream has rights to its natural flow, preventing upstream neighbors from damming it.

Contradictions in Common Law

• Common law maintained community harmony while also emphasizing the landowner's "sole and despotic dominion" from soil to sky.

• This created a contradiction: landowners had extensive rights but couldn't use their land to harm neighbors.

Shift to 19th-Century Individualism

• Relativism Replaced Absolutism: Rights became relative and correlative rather than absolute.

• Equality Replaced Priority: Equal rights were prioritized over who was there first.

• Reasonable Use Replaced Prescription: Reasonable use became the standard instead of prescriptive rights.

• New Latin Maxim: Damnum
  ewline esque
  ewline injuria (injury without legal remedy).

Doctrine of Reasonable Use

• Allowed for injury without a legal right to recover damages.

• Originated in water rights/riparian cases, influenced by the Industrial Revolution.

Industrial Revolution's Impact

• Before 1780: British mercantilist system restricted colonial manufacturing.

• After 1807: Jefferson's embargo and the War of 1812 spurred domestic manufacturing due to trade disruptions.

• Textile mills increased dramatically, requiring water power and dams.

• From 1815 to 1831, the number of textile mills increased approximately 10-11 times.

Water Rights Disputes

• Common Law Doctrines:

  • Priority: First user of water had rights if there was scarcity.

  • Natural Flow: Reasonable use for "natural uses" (agriculture), but not for non-traditional uses like manufacturing.

• Courts shifted to a utilitarian rule of reasonable use to accommodate industrial needs.

• Palmer versus Mulligan (1805): Upstream owner allowed to dam stream for a mill, even if it caused "little inconveniences" to others. The public advantage of competition outweighed individual inconveniences

• Platt versus Johnson, Martin versus Bigelow: Rights are correlative not absolute. Courts should consider public good and equal rights.

Joseph Angle and Border Law

• Joseph Angle, an early treatise writer on border law, opposed the shift away from prescriptive rights, but the trend favored reasonable use.

Lemuel Shaw and the Usages of the Community

• Lemuel Shaw (Chief Justice of Massachusetts) was a key figure in 19th-century legal changes.

• Kerry versus Daniels (1844): A cotton mill could significantly divert water if it benefited the community.

• The test was not the injury to individual users, but the "usages and wants of the community."

• Mills were considered beneficial as they were profitable to owners and beneficial to the public.

• Private property owners might suffer, but community benefits were prioritized.

Reasonable Use in Other Contexts

• Thurston versus Hancock (1815): Lateral support case in Massachusetts.

  • Thurston had a house with a 15-foot foundation since 1792. Hancock built next door with a 30-foot foundation, causing Thurston's house to collapse.

  • The court ruled in favor of Hancock: As long as Hancock didn't intentionally try to harm Thurston, he couldn't be sued for building on his own property.

  • There was no zoning or building permit system in early 19th-century Massachusetts.

• Parker versus Foot: Ancient lights case.

  • New York court rejected the common law rule of ancient lights, calling it an anomaly unsuitable for growing American cities.

• Greenleaf versus Francis (1836): Underground water rights.

  • The court ruled that there were no prescriptive rights to underground water, only reasonable use.

  • Francis's use of the water, even if it deprived Greenleaf of access, was deemed reasonable.

• Auburn and Cato Plank Road Company versus Douglas:

  • Douglas removed a fence on his property next to a turnpike, allowing people to avoid paying tolls.

  • The court sided with Douglas, stating that landowners can do what they want with their land as long as there's no malicious intent.

  • The maxim sic
    ewline utero
    ewline tuo was deemed "utterly useless" as a legal maxim.

Internal Improvements and Eminent Domain

• Vast increase in canals. From 100 miles to 3,300 miles.

• Railroads expanded. From 73 miles to over 30,000 miles before the civil war.

• Three Powers of Sovereignty

  • Taxing Power

  • Police Power

  • Eminent Domain:
    *Taking private property for public use with just compensation (5th Amendment of the U.S. Constitution). State law also authorized the taking of property
    *Issue: The definition of public use; Courts ruled that eminent domain could be used by private companies for projects benefiting the public (railroads, etc.)

• Bonaparte versus Camden and Amboy Railroad:

  • Public use, not public ownership, was required.

• Gaston Raleigh Railroad Company versus Davis:

  • Thomas Ruffin (Chief Justice of North Carolina) praised private enterprise for public works.

• Sharpless versus Philadelphia:

  • Tax money could be used to fund private corporations if it was for the general welfare (railroads).

Just Compensation & Offset Provisions

• Ruffin stated, amount of compensation is determined by judges and this determination is an issue of law not an issue of fact.

• Offset Provisions:

  • Benefits received from the project (e.g., railroad) were subtracted from the compensation amount.
    *Johnson versus Chesapeake Ohio Canal Company: The amount of what the person benefited by, subtract what amount of land the person owned.

What Constitutes a Taking

• Damage Without Title Transfer: Compensation was generally only provided if title to the property was taken.

• Callender versus Marsh:

  • The state regraded streets, leaving a nine-foot drop from Callender's front door to the street.

  • The court ruled it a non-compensable consequential injury.

• Hollister versus Union County:

  • The state straightened a river, flooding Hollister's land, but that land was still owned by Hollister.

  • The court ruled it a non-compensable consequential injury.

• Henry versus Pittsburgh and Allegheny Bridge Company:

  • The state built a bridge, creating a 12-foot pile of dirt in front of Henry's house.

  • The court ruled it a non-compensable consequential injury.

• Richardson versus Vermont Central Railway:

  • Railroad embankment caused water to run into Richardson's basement, causing her house to collapse.

  • The court ruled it a non-compensable consequential injury.

• Bellinger versus New York Central Railroad:

  • Railroad embankment caused Bellinger's 360-acre farm to flood.

  • The court ruled it a non-compensable consequential injury.

Government vs Citizens

• The government could injure property without consequences if no title was taken.

• Society benefitted from railroads and infrastructure, even if some individuals were negatively impacted.

• Auburn and Cato Plank Road Company was an exception.

• New London versus Kelo (2004):

  • A modern case where the Supreme Court allowed the taking of private property for economic development, but the project was never completed.