Property lies at the center of Americans' minds and hearts. When they look around they see land, all of which is owned by someone. Ralph Waldo Emerson captured that reality when he wrote in 1841, "I cannot occupy the bleakest crag of the White Mountains or the Allegheny, but some man or corporation steps up to tell me it is his." While Emerson and other reformers questioned the system of property, the vast majority of Americans have embraced it. The American legal system is central to protecting individuals' rights to property, including the right to exclude trespassers; the right to have property free from excessive government regulation (which is also the right to use property in the manner the owner wishes); and the right to sell (alienate) property.
Restrictions on Property Rights
Property exists in conjunction (and often in conflict) with community rights. The federal and state governments, for example, have the right of Eminent Domain, which is the power to purchase property from owners for public use, even if they do not want to sell. The Fifth and Fourteenth Amendments to the United States Constitution require that the government pay "just compensation." The eminent domain power is used frequently to acquire property for highways, railroads, public parks, and urban renewal. Some of the most contentious property disputes in the late twentieth century have been over the appropriateness of eminent domain for urban renewal projects, such as the wholesale purchase of Poletown, a Polish community in Detroit, which was subsequently sold to General Motors in the early 1980s. Many questioned whether the property was being taken for public use. That case placed individual homeowners and their close-knit community against the larger community and General Motors. Other urban renewal projects have also been controversial because of their dislocation of communities. Yet the U.S. Supreme Court remains reluctant to intervene in a legislature's judgments about what constitutes public use.
Eminent domain is one example of the way that private property is subject to community rights. Zoning is another illustration. During the Progressive Era, local governments frequently imposed restrictions on the use that could be made of land, such as prohibiting the location of houses in industrial areas, limiting the size and height of buildings, and requiring minimum lot sizes for houses. Those restrictions on the use of property often had the effect of dramatically decreasing property value. The Supreme Court upheld zoning in 1926 in Village of Euclid v. Ambler Realty Company. The decision, issued by Justice George Sutherland—one of the most consistently conservative jurists of the twentieth century—rested on the principle of the police power, which is the state's power to regulate for the health, safety, and morality of the community. Since that case, courts have consistently given wide latitude to government decisions about zoning.
Euclid drew upon a long history of limitations on use of property for noxious purposes under the police power. It referred to a 1915, Hadacheck v. Sebastian, case that allowed Los Angeles to regulate a brick-making plant that was located near residences. As early as the colonial era, governments heavily regulated the use of property, such as by ordering the draining of swamps and by limiting the use of property for taverns, tanneries, and the storage of gunpowder. In the nineteenth century, many judges allowed significant regulation of property, as by imposing restrictions on building in a manner that might be dangerous, on using property for immoral purposes, and on locating businesses in residential areas. In some cases, the government ordered the destruction of property that was posing an immediate threat, such as blighted trees. Frequently, homes and businesses were burned during fires to create a firebreak and thereby stop the fire from spreading. In those cases, the government paid no compensation. Courts also restricted the rights of cemetery owners to exclude visitors. Despite sweeping statements, such as William Blackstone's that property consists of "that sole and despotic dominion which one man claims and exercises over the external things of the world, in total exclusion of the right of any other individual in the universe," property was frequently subject to regulation in the years leading up to the Civil War.
Compensation and Regulatory Takings
Some of the most important regulations of property related to property in human beings, known as slaves. Slaves who committed crimes were often punished without compensation to owners. Masters were also restricted in some of the "uses" they could make of slaves; they could not, for example, teach slaves to read, and harsh punishments were usually prohibited. In the aftermath of Nat Turner's 1831 rebellion in Virginia, the legislature discussed the abolition of slavery. One person likened slaves to dangerous property and urged that they be freed, without paying any compensation to their owners, on the theory that dangerous property could be destroyed without compensation. Later on, in environmental cases, federal and state statutes greatly restricted dumping hazardous waste on property and imposed even retroactive liability on the owners of contaminated property. When the Thirteenth Amendment confirmed the end of slavery, it also marked the wholesale termination of property rights.
On occasion, when there is significant limitation on the use of property, courts require the government to pay compensation. Those cases are called "regulatory takings," because the government's regulation has, in effect, taken the property owner's rights. Determining when a regulation becomes a taking is difficult and generated substantial debate in the twentieth century. The modern era of regulatory takings jurisprudence began with the Pennsylvania Coal v. Mahon decision of Justice Oliver Wendell Holmes in 1922. Justice Holmes struck down a state statute prohibiting coal companies from mining under houses in a way that caused the surface of the land to cave in. Holmes thought the regulation went "too far"; it deprived the coal mine owners of their right to property, he stated, for they had already purchased the surface rights. Justice Louis Brandeis's vigorous dissent argued that the state has the right to prohibit dangerous uses of property, such as prohibiting the sale of alcohol and margarine (which was then considered unhealthy).
Since the mid-1980s, the Supreme Court has revisited regulatory takings claims numerous times, in two contexts. First, landowners were asked to give up interests in their property in exchange for permission to build on it. The Supreme Court concluded that in those cases, known as exactions, the government must show a reasonable nexus between the burden imposed and the use being permitted and that the burden imposed by the state is reasonable in light of the proposed development. Thus, it is permissible to condition expansion of a parking lot, which will increase water run-off, on the grant of the right to expand a nearby floodplain onto property held by the owner of the parking lot. In a second series of cases, landowners argued that their property was taken when restrictions on building essentially prohibited all development of the land. The Supreme Court looks to a variety of factors to determine whether a regulation restricting development is permissible, including the economic effect of the regulation and whether it unreasonably interferes with owners' expected profits from their investments.
Balancing Interests
Property law balances competing interests between neighboring owners as well as between property owners and the community. The doctrine of "nuisance," for instance, limits owners from using their property in a way that unreasonably interferes with neighbors. So, a person living in a city may be prohibited from operating a feed lot on her property. At other times, when a use of property is particularly important, but it significantly harms a neighbor, nuisance law may award damages to the neighbor. Thus, a cement plant that provides significant employment, and would cost millions to relocate, may continue to operate, but it will have to pay for the interference it causes to the lives and property of neighbors. Frequently, owners also have rights in their neighbors' property, such as an easement to cross a neighbor's property. Covenants, or agreements, between neighbors also give them rights in the other's property, such as the right to prohibit the construction of a carport, or the right to veto architectural changes.
One covenant that was common among property owners in the years between 1900 and 1948 was the racially restrictive covenant. It took several forms: one prohibited an owner from selling property to members of certain races or religions; another allowed the sale, but prohibited members of certain races or religions from occupying the property. The U.S. Supreme Court's landmark 1948 decision in Shelley v. Kraemer declared the enforcement of those covenants unconstitutional because they violated the equal rights of members of the prohibited classes. After the case, the covenants were unenforceable, although some property owners and courts made feeble attempts to get around the decision until the Fair Housing Act of 1968 outlawed them completely.
Twentieth-Century Legislative Innovations
Federal legislation in the New Deal and civil rights eras imposed additional limitations on property rights. Thus, union organizers have the right to appear on private property for limited organizing efforts under the National Labor Relations Act of 1935. The federal Fair Housing Act of 1968 limits the right of owners to discriminate in the sale or renting of housing. Sellers, landlords, and real estate agents cannot discriminate in the terms, conditions, or availability of property based on race, gender, religion, marital status, or disability. Similarly, the Civil Rights Act of 1964 limits the right of property owners who provide public accommodations to refuse service on the basis of race. Those federal acts realign the power held by property owners and the public.
From the late 1960s, property law became increasingly concerned with the welfare of tenants. In most jurisdictions, landlords must deliver and maintain habitable premises for residential tenants. If tenants fail to pay rent, the landlord can no longer forcibly remove them without a court order. When tenants move out before the lease expires, landlords must "mitigate" the harm by searching for substitute tenants.
There have been similar changes in marital property rights, which are designed to equitably divide property at divorce. A few states, for instance, consider an educational degree earned during marriage as marital property. Such a doctrine entitles the spouse who assisted in the acquisition of the degree some economic benefit from it. Another development, known as "palimony," allows those who contribute to a partner's acquisition of wealth to a share of that wealth, even if the couple was never married. Another important change since the 1960s is the movement to view many government entitlements, like welfare and pensions, as property. That view means that the government must provide recipients with due process in the award and termination of benefits.
Courts and the Protection of Property: Adverse Possession
Throughout American history, courts have been important in protecting property. They have consistently punished trespassers, although there were occasional squatter and tenant movements, such as the Anti-Rent movement in upstate New York in the 1840s, that supported the right of tenants to purchase the land they occupied on long-term leases. The courts have been perhaps most notorious in supporting the ouster of Native Americans from land. The most notorious case is Johnson v. McIntosh, decided in 1823. Chief Justice John Marshall seemed to recognize the inherent justness of the claim that the Plankasaw tribe once owned the land at issue in what is now Illinois, but he said the power of precedent constrained him. Marshall's frequently quoted opinion observed that "conquest gives a title which the Courts of the conqueror cannot deny, whatever the private and speculative opinions of individuals may be, respecting the original justice of the claim. …"
While property law protects owners, it also respects those who use property efficiently. The doctrine of adverse possession allows squatters who occupy property for an extended period of time to acquire title to the property if they make sufficient improvements on the property or otherwise use it, such as for farming. Adverse possession indicates a pro-development bias in the law that encourages the development of land. Similarly, many states have statutes that allow those who mistakenly build on land thinking it is their own to buy the land from the true owner. Such provisions demonstrate property law's preference for exploitation of the land.
Landscape art in the nineteenth century frequently confirmed Americans' desire to possess property—and put their footprints on the land. George Inness's painting, The Lackawanna Valley, places a railroad roundhouse in the center of New York farmland. Similarly, Thomas Cole's Notch in the White Mountains (1839) depicts a mountain pass in the fall, a beautiful scene of nature, along with a tree stump, a house with smoke rising from its chimney, and a rider on a horse, going along a well-worn road.
Changing Ideas About the Purposes of Property
Property served different purposes in the founding era, the antebellum period, and the years after the Civil War. Around the time of the Revolution, it was perceived as a way of ensuring independence. Thomas Jefferson spoke of the importance of widely distributed property, for property provided the independence that made virtuous citizenship possible. Following the Revolution, states changed their laws regarding distribution of property at death so as to provide for a more equitable distribution among children and grandchildren. The changes both reflected American values favoring wide distribution of property, and helped shape an ideology proclaiming that property should be widely distributed. That civic republican vision of property has some modern adherents, who sometimes reconceptualize the community's rights over property. One argument runs that workers have an interest in the factory where they work, which courts should protect.
In the antebellum period, beginning around 1820, American values began to change. Wide distribution of property grew less important; instead, Americans spoke about the virtues of property as a way of acquiring wealth and of disciplining government. Southern proslavery writers like Thomas Roderick Dew and Nathan Beverly Tucker told their readers that throughout history, property was important in securing freedom. When English kings needed money, for instance, they traded increased rights for tax revenue. Some still appealed to the need for wide distribution of property—and the evils of concentrated wealth. Abolitionists frequently criticized wealthy slaveowners as anti-republican. Because slaveowners had a disproportionate share of property in the community, they did not have the same values or interests as the community. Their great power over others—poorer whites as well as slaves—led them to act imperiously. The Homestead Act of 1862, passed during the Civil War, granted 160 acres of land to people who agreed to settle it for five years. It reflected the desire for wide distribution of land.
During the Reconstruction Era and the Gilded Age, judges placed a premium on the freedom of contract. Born of the Civil War–era ideology that labor should be freely alienable (rather than owned by others), property was viewed as a commodity that could—and should—be sold. Those ideas became transformed into a doctrine that businesses may make contracts free from governmental scrutiny. Often those contracts held employees to low wages. Under their terms, if employees left before the contract was up, they received no compensation at all.
In the twentieth century, property has received varying degrees of protection. During the Progressive Era there were sharp conflicts within the courts and society about the value of protecting property at the expense of workers. A 1905 Supreme Court case, Lochner v. New York, struck down a minimum wage, maximum hour law for bakers on the principal of freedom of contract. Over the next two decades, however, many cases upheld similar laws. During the New Deal, the Supreme Court went so far as to approve of a statute that extended the time that debtors had to pay their mortgages before they were foreclosed.
At the beginning of the twenty-first century, a period in which property rights will be given increased protection from regulations seems to be starting. Those sentiments appear in Congress as well as in the U.S. Supreme Court. For instance, in 1998 Congress extended the period of time that a work may have copyright protection to seventy years after the death of the creator. Another example of the increased respect for property is the dramatic reduction in the estate tax in 2001, which was advocated even by members of the Democratic Party, the major party typically less concerned with protecting wealth.
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