You can't take it with you

Land, especially

If I own a house in a pleasant neighborhood of similar houses, what right do I have to determine what kind of changes can be made to the neighborhood? What right do I have to determine what kind of changes might be made to my own particular part of the neighborhood—my house and the lot it sits on?

These questions come up all the time. Cities often have ordinances saying that grass has to be cut regularly; such ordinances infringe on my right to develop a butterfly sanctuary, for instance. Most cities have zoning laws; I can’t tear down my house and build an apartment complex, let alone a fertilizer factory. In times past, neighborhoods had covenants banning sale to certain classes of people. Some still have covenants restricting what color I can paint my house.

Such regulations prevent me from exercising full control of my property. In doing so, they deprive me of some portion of my rights to that property. Monetarily, I suffer from not being able to develop my property to its maximum economic value. My lot would be worth much more if a ten-unit apartment building could be erected upon it.

By what right do the powers that be deprive me of my rights?

The basic answer is that the way I use my property has an effect on others’ enjoyment of their property. My neighbors would find their backyards less pleasant if an apartment tower blocked their sun. If I let my yard become an eyesore, the resale value of their homes would fall. Likewise, the argument went, if a black family moved into the neighborhood. I might not be a racist, but some potential buyers could be, and if they were put off by integration of the neighborhood, then I and my neighbors would be poorer come resale time.

Where cities and states draw the line between my property rights and those of my neighbors varies from place to place and has varied over time. Restrictive racial covenants went out during the 1960s. That is, they became unenforceable, although they remain on many deeds. New York has tight restrictions on what can be built where; Houston is more relaxed. In most states, people who live outside cities are freer to do what they want with their property than urban folks.

Sometimes the arguments over property rights are couched in moral terms. John Locke made property one-third of his holy trinity of natural rights, the others being life and liberty.

Sometimes the arguments are utilitarian. In nineteenth century America, reformers who sought to help Indians adjust to life in the broader culture contended that doing so required the distribution of reservation lands to individual Indian families. Without secure ownership of particular parcels of land, the reformers argued, the families would have no incentive to improve their property.

This has been a basic argument against public or communal ownership of all kinds of resources, and in favor of private property. In the case of the Indians, it wasn’t always put forward sincerely. The Dawes Act of 1887, based on this argument, was also supported by speculators who thought the law would facilitate swindling Indians out of their land. They were right.

The utilitarian argument was used against the Indians in another way. White farmers looked at the large tracts occupied by nomadic tribes of Indians and concluded that under white ownership and cultivation those lands would support many more people. The argument was self-serving, of course, but it was plausible, especially in an age when population growth was almost universally accounted a good thing.

The utilitarian argument underlies the principle of eminent domain, whereby governments can compel the sale of property when that property can be put to higher use by the community as a whole. Urban renewal in America in the 1960s was built on this principle, following the lead of Napoleon III in rebuilding Paris in the 1850s and 1860s. In both those cases the powerful and wealthy wielded the principle against the weak and poor, yet its misuse didn’t negate the validity of the principle itself.

The moral argument for property rights works better for property that is clearly created by the owner. Intellectual property is an example. The song “Yesterday” wouldn’t exist if Paul McCartney hadn’t written it. Presumably he should have the ownership rights to it. Yet even here, copyrights last only so long; eventually the song will belong to the public.

A farmer who fences land and improves it can credibly claim ownership rights to the improvements. This is one reason property tax bills typically distinguish land value from the value of improvements.

The moral claim to land itself seems dubious. No human created it. The land existed before we were born and will exist after we die. Francis I of France rejected the Treaty of Tordesillas of 1494 dividing the new discoveries in the Atlantic between Spain and Portugal; Francis demanded to see the clause in Adam’s will reserving the great ocean to the Iberians.

As Francis’s objection suggests, the moral claim has rarely—if ever—persuaded those who didn’t benefit from it. The hard fact of history is that land has generally been seized by the strong and held until someone stronger fancied it. The Arikaras controlled the Black Hills of South Dakota until the Crows drove them away; the Crows were displaced by the Lakotas; the Lakotas were dispossessed by white miners, loggers and ranchers. Each group spun a tale of how they merited the region, but merit meant less than force on the ground.

Which is to say that though your home might be your castle, you’re smart to be nice to the neighbors.