Whenever there is a libertarianism thread, the following scenario nearly always comes up:
Well, then, the guy who moved in behind my Mom’s house must be a fool. A few years ago, he knowingly bought a plot of land which had no access to the main road. My mother asked him how he was going to get in and out and he asked to use her driveway (which does not end at her house, but continues past it to the property line) and that he was going to extend it beyond the property line to his house.
My mother said, “No way.” She didn’t want some stranger using her driveway like it was his own.
The county (Johnson County, Texas, south of Fort Worth) said, “Yes, way,” that he had easement rights. They also said that he had to share the expense of maintaining the part of the driveway my mother owns since he was using it. She appreciated that, but she’s still not completely happy about this turn of events and had no idea such a thing was possible. (Neither did I. I always thought the “donut-shaped real-estate” scenario was purely hypothetical.)
Would such a scenario ever happen under Libertaria and if so, how would it be handled? Would it matter that the land inside the donut (the “hole”) was the last to be sold? Would it matter if the donut had many owners or just one?
(No giant squids were harmed in the creation of this thread.)
If you didn’t allow the guy access my guess is that you would either be detaining him against his will or denying him access to his property, that would contravene his human rights.
Sure, it happens in real life, although the isolated land is not often surrounded by a single owner’s land. Just as in your mom’s case, property law deals with it through an “easement of necessity.”
::shuffling through old Property Law outline::
Such an easement exists where a grantor conveys lands to which there is no accessible right of way except over the grantor’s land, or where the grantor has retained land which is inaccessible except over the conveyed land. The implied right of way exists where a unity of title existed at one point–there is no requirement of unity of title in the most recent conveyance of the isolated property.
The right-of-way recognized in the easement of necessity must cross the land of somebody whose purchase isolated the land that needs the right-of-way; thus, the right-of-way goes over land that was sold after the isolated land.
An easement of necessity is only possible when the necessity is created by severance of title. If the water level rises on your lakefront property and swallows your driveway, that’s your tough luck–you don’t get to put a new driveway across Mother Jab’s front yard.
I seem to remember from my bar review there are some Texas cases on easements of necessity, but my property law materials are at the office, so I can’t be specific.
Is this so? Doesn’t seem fair, but that dosen’t always mean much in law.
If there was a flood, and the driveway was washed away with the river bank, couldn’t Mother Jab be compelled to grant easement at fair market value?
Peace,
mangeorge (Doesn’t really have a cabin)
If you’re curious, you can see my mom’s house in the center of this aerial photo from http://www.mapquest.com. (Taken by satellite? From an aircraft? Ya got me…) (You can zoom in for a closer look, from an apparent altitude of 1500 feet, I’m guessing.) Her house is the red-roofed one at the corner of the paved road. (Across the road, to the SE, is a dairy.) The driveway in question is the unpaved white strip that runs NW to SE. The guy’s house is the white-roofed one at the end of the driveway. If you zoom out, you’ll notice many, many mobile homes in the vicinity. When we first moved here back in '73, my mom’s house and the one a quarter-mile to the east were the only houses here. The rest of the land was pasture-land and cropland (mostly cotton and sorghum).
A lot of changes can happen in 28 years!
This means my father bought that land LONG before this guy moved in. It became my mother’s land upon his death. She sold most of it to pay bills and taxes and the new owner sold that plot of land behind my mother’s house shortly thereafter. IOW, my mom was there first and yet she had to provide this new guy easement.
Gee thanks, jab1. I wasted the last half hour looking at arial photos of the houses of practically everyone I know.
Gotta go. More houses to look at.
Peace,
mangeorge
Let me give the Libertarian/Coasian response to the OP. We could have 2 sorts of property rights.
Regime 1: Those with property outside the donut have the right to deny access.
Cool. If that’s the case, the person with land inside will be able to bribe the outside person sufficiently to gain access. Or the insider would not; that’s ok too, since it would be clear that the person outside values their privacy more than the person inside values access. Efficiency obtains.
Regime 2: Those with property inside the donut have the right to have access to their property.
Cool. If that’s the case, if the outy values their privacy sufficiently, they will be able to bribe the inny sufficiently to stop accessing their land. Or they would not; that’s ok too, since it would be clear that the person inside values access more than the person outside values their privacy. Efficiency obtains.
The preceding assumes that the costs of negotiation are zero. It also puts a high degree of faith in the private negotiating process (and less faith in the skill of the zoning board).
May I change the scenario just slightly?
What if guy #1 buys the “hole” first, then guy #2 (who’s very rich and very mean) comes along and aquires the “donut” parts?
In Libertania, would the inny have a right to free access his property? Without a helicopter, I mean. Oh that’s right, the outie would own the sky above his property, wouldn’t he?
Oh, well.
Peace,
mangeorge
I’m rather new to debating libertarianism, but it seems to me that a lot is assumed in this little example…
That the people doing the ‘valuing’ on either side have enough economic clout to negotiate in the first place. If hole-guy doesn’t have enough excess capital on hand to sway the donut owner, he’s SOL.
That the owner is benevolent enough to look for a negotiated compromise at all. If the hole had any economic value, a competitive donut owner could charge so much for access that the hole-owner is forced to sell below market value, just to cut his losses. Imagine a plot of family-owned farmland hemmed in by an agribusiness corporation that wants the inconvenience of a donut hole removed.
That the choice of ‘regimes’ is predetermined, and the application of the law is not conditioned by the legal and economic resources of one party. I’m thinking of the agricorp again - if easement comes down to a court decision, they can throw bajillions of lawyers at it; if it rests on abureaucratic process, there’s always bribery and intimidation.
The problem is that we’re looking at a model without bothering to imagine the complex of power relations that will surely condition it in practice…
My response is “did someone put a gun to your head and force you to buy the land?”. It’s up to you to perform due diligence. If your dream home is in the middle of a “land donut”, and the owner of said donut won’t give/sell you easement rights, don’t buy the donut hole.
Now let’s say that the “donut” was purchased after you purchased the hole. In that case, you could claim easement, as no one can force you out of your land.
That part about the right to the sky over your land is a good one. Could I use a .50 Browning to shoot down low-flying planes over my land?
I’ll be watching this thread in future. The concept of land rights is very fascinating.
If things were as you suggest, then there would be nothing to stop an individual or a group of landowners getting together to deny access to land about to be sold and its value would fall.
This would place those conspirators in a very favourable position, my guess is that it would be an unfair advantage.
Every piece of land is surrounded by others, except islands of course, so there would be a lot of potential for abuse.
jab1, I think minty green explained it to you in his post: precisely because she was there first and she sold the land, the law says she has to give an easement. That’s the law: If you break a piece of land in two and now only one has access from the road, then the one with access is burdened with providing access to the other one. Makes sense to me. If you don’t like it, then don’t sell a piece of land in this way which would create the burden you don’t want. Since you are the owner and were there first, you can avoid it. But if you sell the law says you are now burdened with providing acces through your property. And the easement right and burden convey with the property. It does not matter it has gone through twenty hands and the guy arrived yesterday. he bought the property with the rights which the property enjoys.
oh, IANAL
mangeorge: This easements of necessity are a common law concept, although the common law has been codified in some states. I’d hesitate to generalize the common law in all jurisdictions. But there weren’t any qualifier in my old Property II notes, so if the isolated land becomes isolated by Mother Nature rather than severance of title, I think you’re s.o.l.
jab: In other words, your mom’s property and donut guy’s property were once a single tract of land, i.e., there was “unity of title.” That’s the condition under which easements of necessity are available for donuts. And sailor has it exactly right: there is an easement implied in law because we presume the parties to the severance simply forgot to negotiate that part of the contract. If a sales contract specified that there was not to be any easement over the surrounding property, I am quite positive the courts would enforce that provision.
Why do it this way? Easy. First of all, in nearly every instance of creating an isolated tract of land, the most likely explanation is that the parties simply forgot about the access problem, and would have addressed it if they’d remembered. Second, isolated property is economically useless, and the commmon law doesn’t like such situations. By slightly burdening your mom’s driveway, donut guy’s property is now available for whatever enterprise he was planning on (most likely, building a house). Instead of one productive chunk of land, now we’ve got two. So it’s a pretty efficient outcome, even if it’s not as efficient as it would have been if the parties hadn’t forgotten about it in the first place.
A B-52? Lousy choice. Those behemoths have no pinpoint bomb-delivery capability. You’d have to carpet-bomb not only Father Pacelli’s property, but the entire surrounding donut of land as well. Either that, or drop a nuke on it, which would violate a whole lot of land owners’ rights. And worse, a B-52 is so large it would probably span several plots of land at once.
No, for a scenario like this, what you really need is a small strikefighter capable of dropping a laser-guided bomb, such as an F-15E or a good old-fashioned Stealth Fighter. Or even better, something that can launch a Maverick air-to-ground missile. That way, you can surgically remove the .50 Browning installation without touching any of its neighbors.
I’d really like to know, though. Let’s say I own a farm or whatever. Some arsehole in a little airplane enjoys buzzing my farmhouse. I take my .50 and start plinking away at the little puddle jumper. It crashes and explodes. Could the pilot (or his next-of-kin, for that matter) sue me for damages?
Wrongful death, loss of wages/services, reckless endangerment, fear and suffering, property damage, and I’m sure other basis as well. Of course, they’d have to line-up behind whatever gov’t action has taken against you…
Better to just git the tail number and let the FAA make your hypothetical buzz-boy’s life a living hell. (the FAA is real good at doing that to the GenAv folks)
Ok, going back to the “legal murder” thing that came up in GQ a few weeks back, does this mean that you could legally let a neighbor starve to death if a flood or an earthquake destroyed his access to the outside world?
There are two answers to that question, Manda JO. There’s the criminal law answer, and the property law answer.
Criminal law: In general, you are under no sort of duty whatsoever to lift a finger to assist any other person, in any way, shape, or form, no matter how terrible the danger to that person or how easily you could prevent the tragedy from occurring. You’re legally entitled to laugh yourself silly as some poor guy drowns five feet from shore, as long as you did not contribute to the person’s predicament.
This rule of criminal does not apply if you have a special relationship with the person in danger. If it’s your spouse or child drowning, get your butt in the water or face the possibility of homicide charges.
So basically, criminal law doesn’t care if you let your neighbor in the donut hole starve to death. However, don’t go pointing your shotgun at the poor schmuck if he tries to cross your property, 'cause then you’ll be actively contributing to his demise.
Property law: Sure, the earthquake-surviving donut hole guy will be trespassing when he crosses the surrounding property. Tough luck for the surroounding property owners, basically. The common law recognizes a limited license to use another person’s property when necessary to save your own life or property. Of course, you’ll have to pay damages for the trespass, but it’s not like walking across somebody’s back yard on the way to the Red Cross shelter is going to cause enough harm to make it worth suing over. Note that this “license” is rather different from the easement of necessity, in that the license is only temporary, whereas an easement is quite permanent. jab1: I briefly looked at the case digest this morning to see what Texas says about easements of necessity. It’s basically identical to what I wrote above, but with the slight qualifier that the easement must be “necessary,” not just “convenient.” The Texas Supreme Court does not appear to have said anything about easements of necessity since 1944, although the intermediate apppellate courtse do a fairly brisk business, with a half dozen or so reported cases in the last few years. Like I said, it’s a reasonably common situation.
