Encirclement and Easements

TGGP asks Will Wilkinson:

Do you really think that by locking my door I am coercing against anybody?

I'm not sure I entirely agree with the argument, but if I were to make a libertarian argument that by locking your door you can coerce someone, I would mention the encirclement problem and the common law solution of easements:

Suppose that the states owns all the land along the border. Then we have the same situation as one in which one person buys all the land surroundig another person’s property, thus keeping them prisoner (if they were on it at the time) or keeping them away from their proeprty (if they were off it). Since you can’t legitimately use your property in a way that interfere’s with the liberty and property of others, you are obligated to provide an easement.

Can a theory of easements be used to justify anti-discrimination laws on libertarian grounds? The public accommodations provisions of the Civil Rights Act of 1964 were upheld by the Supreme Court on Commerce Clause grounds, but it seems to me that easements should be (and generally are and were) granted only if absolutely necessary, and not just in cases where they make life significantly more convenient. Of course, distinguishing between cases of absolute necessity and mere convenience is a tricky thicket.

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Not sure about the justification

This is uselessly vague:

Since you can’t legitimately use your property in a way that interfere’s with the liberty and property of others, you are obligated to provide an easement.

What does "interfere with" mean? It's easy to see how such a vague statement could be used to justify pretty much anything.

But let's look at this more carefully. The land was there before one person bought it. So even before that one person bought it, the owners of that land were there and could (if it were legal) combine to imprison the landowner they surround. It is, presumably, not legal. In that case, the surrounded landowner already has the right to pass through the surrounding land. Therefore he already has an easement through the surrounding land - even before any one person buys it up.

A person has no right to sell what is not his own. Therefore the neighbors, even if they sell the land to one person, do not have the right to sell the easement - which is owned by the landowner in the middle. So the situation is not that the surrounding landowner is obligated to provide the interior landowner with an easement. The situation is that the interior landowner already has an easement through that property, and had it since before the surrounding landowner bought it. The surrounding landowner is obligated to do no more or less than to respect the right which the interior landowner already has.

So far this strictly obeys libertarian principle, which includes the point that a person has no right to sell what is not his to sell. If I were to sell you the Brooklyn Bridge, it would not become yours no matter how much you paid me, and by the same token, if a landowner's neighbors were to sell someone their land, his easement through the neighboring land would not become property of the buyer. There is no need, here, to invoke the vague notion that one must not "interfere" with another's liberty.

Suppose that you are the real and nominal (official, on paper) owner of the property surrounding a given piece of property, and suppose furthermore that there are no easements through your property. Then you have the right to restrict access to the interior property. But a right to restrict access is nothing other than ownership. Therefore by definition you own the interior property. You are the real owner even if you are not the nominal owner. But it is the obligation of legal terminology to track reality. Therefore the rules governing who is the nominal owner of a property must respect the principles which govern who is the real owner of the property. If you are the real owner, then you are the nominal owner as well.

So it is a simple matter of definition that if one person owns an interior property and someone else owns the surrounding property, then the person in the middle owns an easement through the surrounding land. If he does not own an easement then he does not own the interior property - contradiction, since we assumed he did.

Nope

Since you can't legitimately use your property in a way that interfere’s [sic] with the liberty and property of others, you are obligated to provide an easement.

Not in the U.S. under common law -- every first-year law student learns in Property class that you landlock at your own peril.

KipEsquire, A Stitch in Haste

Agreed. The legitimate way

Agreed. The legitimate way to obtain an easement is to homestead it. If you've been regularly accessing your property and the owner of the donut property around you change, he does not own the right to prevent you from accessing your property, it was implicitly granted to you over time by the previous owner.

A response

Kip Esquire, could you tell me why you banned me and deleted my comments, and is there any way I can get them back to host at my own blog?

I recall Walter Block debating Epstein on this matter. I have never found Epstein convincing (including on intellectual property). The government does not act like an owner of all the surrounding property. That property has owners of its own and they act like it. Furthermore, if I had an isolated house surrounded by someone else's land I'd still be allowed to sell drugs out of that house without armed thugs busting in and arresting me (I'd also be allowed to fly a helicopter off the top of my roof). Before I purchased that property I'd likely look into contractually arranging for certain easements due to the possibility that such a situation may arise. The government acts as if it has a pre-existing contract with me granting it certain powers, but I have never signed it and the fact that I may use public roads (which I don't begrudge their authority to regulate though not to pay for with non-toll taxes, though I do object to their squelching of the private transportation system that preceded it) does not mean that I ever agreed to such an imaginary contract.

A response

My first comment didn't appear.

Kip Esquire, could you tell me why you banned me and deleted my comments, and is there any way I can get them back to host at my own blog?

I recall Walter Block debating Epstein on this matter. I have never found Epstein convincing (including on intellectual property). The government does not act like an owner of all the surrounding property. That property has owners of its own and they act like it. Furthermore, if I had an isolated house surrounded by someone else's land I'd still be allowed to sell drugs out of that house without armed thugs busting in and arresting me (I'd also be allowed to fly a helicopter off the top of my roof). Before I purchased that property I'd likely look into contractually arranging for certain easements due to the possibility that such a situation may arise. The government acts as if it has a pre-existing contract with me granting it certain powers, but I have never signed it and the fact that I may use public roads (which I don't begrudge their authority to regulate though not to pay for with non-toll taxes, though I do object to their squelching of the private transportation system that preceded it) does not mean that I ever agreed to such an imaginary contract.

I forget if I've plugged this here before, but I wrote a preface to the republished edition of L.A Rollins' The Myth of Natural Rights from Nine Banded Books. Some of you reject libertarian rights-ism (take that, common-law right to easements!), so it could be up your alley. There's a review up at Depressed Metabolism (which I won't link to for fear of the spam filter that I think took my last comment).

TGGP, One can reject

TGGP,

One can reject libertarian rights-ism while still seeing much value in the study of the common law, as an evolutionary record of successful problem solving.

Could you please explain me

Could you please explain me the meaning of 'URL'