Property rights and wrongs

Private property rights are an essential mainstay of American civic justice. It probably comes as no surprise that an unprecedented 100 percent of recent poll respondents agreed that the Supreme Court had been wrong—in its Kelo ruling—to decide that the city of New London can force middle-class residents out of their homes to make room for commercial development.

But as important as the principle of private property rights is, in practice it entails certain internal conflicts that create some knotty problems for communities setting up rules and regulations governing land use.

The first conflict occurs when one person does whatever they want with their property, and it prevents another from doing whatever they want with theirs. We saw a concrete instance of this recently in the Town of Highland. Hunting clubs, chafing at the fact that they could not, as they wished, hunt right up to the edge of their own property, proposed a law that would have allowed them to do so—but only at the cost of preventing their neighbors from erecting structures on the first 500 feet adjacent to hunting club land. For the hunters to do as they wished with their private property, they would have had to take rights away from their neighbors. The proposed law was voted down. But it illustrates the point that in a world where we live check-by-jowl with neighbors who have different wants and needs, there may be times when it is logically impossible for everybody to do what they want on their own land.

The second conflict is illustrated by “the tragedy of the commons,” an interesting little exercise constructed by an amateur mathematician, William Forster Lloyd, in the 19th century. Lloyd described a case in which a community of herders is allowed to graze its animals on common land. The rational behavior for each herder is to add more animals to the herd, as they receive the full profit from each additional animal, and their additional cost is zero. At some point, however, the land will become overgrazed and start producing less food for each animal. Nevertheless, even at this point, each herder will continue to add animals to his own herd. The negative effects of the overgrazing produced by adding one animal will be shared by all the herders, while the positive effects for the herdsman who adds the animal will accrue entirely to him. Because the individual negative impact is only a tiny fraction of the individual positive impact, it is to the benefit of each herdsman to keep adding animals even after overgrazing starts reducing its productivity.

The only problem in the long run, of course, is that the land will eventually become so overgrazed that it won’t support even one animal, and everybody will lose.

Even though this example is based on a plot of public land, the reasoning is valid for any kind of human resource that is commonly held. An instance of particular local concern is the water supply and its relationship to tree cutting. In order to secure a healthy water supply and prevent flooding, it is crucial to maintain certain types of vegetative cover, especially forests, to capture the water so that it can replenish the water table rather than run off the surface. But as open land disappears and human development overtakes larger swaths of property, this means that the quality and reliability of the water supply depends increasingly on the type of vegetation private property owners maintain. If they have nothing but lawn, or cut down all their trees to have a nicer view from their porch, their exercise of their private property rights starts to deplete the “commons” of our water supply.

The benefits to the owners of having their property look the way they want are immediate and clear. Their own impact of the damage they do to the water supply is fractional. But cumulatively it is devastating, and as a community we cannot ignore it indefinitely.

As the example of Kelo shows, it would be extremely dangerous to assert some absolute right of government to tell private property owners what to do with their properties. But as the Highland hunting club case and the tragedy of the commons show, the idea that anybody can do whatever they want with their own property doesn’t hold up either. As many of our local townships review and revise their comprehensive plans, it will be important to navigate a course between these two extremes, recognizing the right to private property as a fundamental one but realizing also that, as people live closer and closer to each other and shared resources become increasingly scarce, it is a right we can only maintain in cooperation with our neighbors.

Dr. Punnybone

Have a Nice Swim!