Open-Source Property: A Free Casebook

Table of contents
Open-Source Property: A Free Casebook
1st Edition
Stephen Clowney, James Grimmelmann, Jeremy Sheff, and Rebecca Tushnet
Copyright 2015-17 by Stephen Clowney, James Grimmelmann, Michael Grynberg, Jeremy Sheff, and Rebecca Tushnet
Table Of Contents





Build Author: Jeremy Sheff

Build Date: August 2017



Open Source Property is copyright 2015-17 by Stephen Clowney, James Grimmelmann, Michael Grynberg, Jeremy Sheff, and Rebecca Tushnet. It may be reused under the terms of the Creative Commons Attribution NonCommercial 4.0 International license, https://creativecommons.org/licenses/by-nc/4.0/.

Chapter One

William Blackstone, Commentaries on the Laws of England

vol. 1, pp. 131-136 (1765); vol. 2, p. 2

THE third absolute right, inherent in every Englishman, is that of property: which consists in the free use, enjoyment, and disposal of all his acquisitions, without any control or diminution, save only by the laws of the land. The original of private property is probably founded in nature, as will be more fully explained in the second book of the ensuing commentaries: but certainly the modifications under which we at present find it, the method of conserving it in the present owner, and of translating it from man to man, are entirely derived from society; and are some of those civil advantages, in exchange for which every individual has resigned a part of his natural liberty. The laws of England are therefore, in point of honor and justice, extremely watchful in ascertaining and protecting this right. Upon this principle the great charter has declared that no freeman shall be disseised, or divested, of his freehold, or of his liberties, or free customs, but by the judgment of his peers, or by the law of the land….

SO great moreover is the regard of the law for private property, that it will not authorize the least violation of it; no, not even for the general good of the whole community. If a new road, for instance, were to be made through the grounds of a private person, it might perhaps be extensively beneficial to the public; but the law permits no man, or set of men, to do this without consent of the owner of the land. In vain may it be urged, that the good of the individual ought to yield to that of the community; for it would be dangerous to allow any private man, or even any public tribunal, to be the judge of this common good, and to decide whether it be expedient or no. Besides, the public good is in nothing more essentially interested, than in the protection of every individual’s private rights, as modelled by the municipal law. In this, and similar cases the legislature alone, can, and indeed frequently does, interpose, and compel the individual to acquiesce. But how does it interpose and compel? Not by absolutely stripping the subject of his property in an arbitrary manner; but by giving him a full indemnification and equivalent for the injury thereby sustained. The public is now considered as an individual, treating with an individual for an exchange. All that the legislature does is to oblige the owner to alienate his possessions for a reasonable price; and even this is an exertion of power, which the legislature indulges with caution, and which nothing but the legislature can perform.…

There is nothing which so generally strikes the imagination, and engages the affections of mankind, as the right of property; or 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.

1.1. The Right to Exclude
1.1.1. Jacque v. Steenberg Homes, Inc.

563 N.W.2d 154 (Wis. 1997)


Plaintiffs, Lois and Harvey Jacques, are an elderly couple, now retired from farming, who own roughly 170 acres near Wilke’s Lake in the town of Schleswig. The defendant, Steenberg Homes, Inc. (Steenberg), is in the business of selling mobile homes. In the fall of 1993, a neighbor of the Jacques purchased a mobile home from Steenberg. Delivery of the mobile home was included in the sales price.

Steenberg determined that the easiest route to deliver the mobile home was across the Jacques’ land … because the only alternative was a private road which was covered in up to seven feet of snow and contained a sharp curve which would require sets of “rollers” to be used when maneuvering the home around the curve. Steenberg asked the Jacques on several separate occasions whether it could move the home across the Jacques’ farm field. The Jacques refused. … On the morning of delivery, … the assistant manager asked Mr. Jacque how much money it would take to get permission. Mr. Jacque responded that it was not a question of money; the Jacques just did not want Steenberg to cross their land. …

At trial, one of Steenberg’s employees testified that, upon coming out of the Jacques’ home, the assistant manager stated: “I don’t give a ---- what [Mr. Jacque] said, just get the home in there any way you can.” … The employees, after beginning down the private road, ultimately used a “bobcat” to cut a path through the Jacques’ snow-covered field and hauled the home across the Jacques’ land to the neighbor’s lot. … Mr. Jacque called the Manitowoc County Sheriff’s Department. After interviewing the parties and observing the scene, an officer from the sheriff’s department issued a $30 citation to Steenberg’s assistant manager.

The Jacques commenced an intentional tort action in Manitowoc County Circuit Court, Judge Allan J. Deehr presiding, seeking compensatory and punitive damages from Steenberg. …[Q]uestions of punitive and compensatory damages were submitted to the jury. The jury awarded the Jacques $1 nominal damages and $100,000 punitive damages. Steenberg filed post-verdict motions claiming that the punitive damage award must be set aside because Wisconsin law did not allow a punitive damage award unless the jury also awarded compensatory damages. Alternatively, Steenberg asked the circuit court to remit the punitive damage award. The circuit court granted Steenberg’s motion to set aside the award. Consequently, it did not reach Steenberg’s motion for remittitur….


…Steenberg argues that, as a matter of law, punitive damages could not be awarded by the jury because punitive damages must be supported by an award of compensatory damages and here the jury awarded only nominal and punitive damages. The Jacques contend that the rationale supporting the compensatory damage award requirement is inapposite when the wrongful act is an intentional trespass to land. We agree with the Jacques.

…The rationale for the compensatory damage requirement is that if the individual cannot show actual harm, he or she has but a nominal interest, hence, society has little interest in having the unlawful, but otherwise harmless, conduct deterred, therefore, punitive damages are inappropriate. … The Jacques argue that both the individual and society have significant interests in deterring intentional trespass to land, regardless of the lack of measurable harm that results. We agree with the Jacques….

We turn first to the individual landowner’s interest in protecting his or her land from trespass. The United States Supreme Court has recognized that the private landowner’s right to exclude others from his or her land is “one of the most essential sticks in the bundle of rights that are commonly characterized as property.” Dolan v. City of Tigard, 512 U.S. 374, 384, 114 S.Ct. 2309, 2316, 129 L.Ed.2d 304 (1994). This court has long recognized “[e]very person[‘s] constitutional right to the exclusive enjoyment of his own property for any purpose which does not invade the rights of another person.” Diana Shooting Club v. Lamoreux, 114 Wis. 44, 59, 89 N.W. 880 (1902) (holding that the victim of an intentional trespass should have been allowed to take judgment for nominal damages and costs). Thus, both this court and the Supreme Court recognize the individual’s legal right to exclude others from private property.

Yet a right is hollow if the legal system provides insufficient means to protect it. Felix Cohen offers the following analysis summarizing the relationship between the individual and the state regarding property rights:

[T]hat is property to which the following label can be attached:

To the world:

Keep off X unless you have my permission, which I may grant or withhold.

Signed: Private Citizen

Endorsed: The state

Felix S. Cohen, Dialogue on Private Property, IX Rutgers Law Review 357, 374 (1954). Harvey and Lois Jacque have the right to tell Steenberg Homes and any other trespasser, “No, you cannot cross our land.” But that right has no practical meaning unless protected by the State….

The nature of the nominal damage award in an intentional trespass to land case further supports an exception to [the compensatory damage requirement]. Because a legal right is involved, the law recognizes that actual harm occurs in every trespass. The action for intentional trespass to land is directed at vindication of the legal right. … Thus, in the case of intentional trespass to land, the nominal damage award represents the recognition that, although immeasurable in mere dollars, actual harm has occurred.

The potential for harm resulting from intentional trespass also supports an exception to [the compensatory damage requirement]. A series of intentional trespasses, as the Jacques had the misfortune to discover in an unrelated action, can threaten the individual’s very ownership of the land. The conduct of an intentional trespasser, if repeated, might ripen into prescription or adverse possession and, as a consequence, the individual landowner can lose his or her property rights to the trespasser.

In sum, the individual has a strong interest in excluding trespassers from his or her land. Although only nominal damages were awarded to the Jacques, Steenberg’s intentional trespass caused actual harm. We turn next to society’s interest in protecting private property from the intentional trespasser.

Society has an interest in punishing and deterring intentional trespassers beyond that of protecting the interests of the individual landowner. Society has an interest in preserving the integrity of the legal system. Private landowners should feel confident that wrongdoers who trespass upon their land will be appropriately punished. When landowners have confidence in the legal system, they are less likely to resort to “self-help” remedies. … [O]ne can easily imagine a frustrated landowner taking the law into his or her own hands when faced with a brazen trespasser, like Steenberg, who refuses to heed no trespass warnings.

People expect wrongdoers to be appropriately punished. Punitive damages have the effect of bringing to punishment types of conduct that, though oppressive and hurtful to the individual, almost invariably go unpunished by the public prosecutor. … If punitive damages are not allowed in a situation like this, what punishment will prohibit the intentional trespass to land? Moreover, what is to stop Steenberg Homes from concluding, in the future, that delivering its mobile homes via an intentional trespass and paying the resulting [$30] forfeiture, is not more profitable than obeying the law? Steenberg Homes plowed a path across the Jacques’ land and dragged the mobile home across that path, in the face of the Jacques’ adamant refusal. A $30 forfeiture and a $1 nominal damage award are unlikely to restrain Steenberg Homes from similar conduct in the future. An appropriate punitive damage award probably will.

In sum, as the court of appeals noted, the [compensatory damage] rule sends the wrong message to Steenberg Homes and any others who contemplate trespassing on the land of another. It implicitly tells them that they are free to go where they please, regardless of the landowner’s wishes. As long as they cause no compensable harm, the only deterrent intentional trespassers face is the nominal damage award of $1 … and the possibility of a Class B forfeiture under Wis. Stat. § 943.13. We conclude that both the private landowner and society have much more than a nominal interest in excluding others from private land. Intentional trespass to land causes actual harm to the individual, regardless of whether that harm can be measured in mere dollars. Consequently, the [compensatory damage] rationale will not support a refusal to allow punitive damages when the tort involved is an intentional trespass to land. Accordingly, assuming that the other requirements for punitive damages have been met, we hold that nominal damages may support a punitive damage award in an action for intentional trespass to land. … Accordingly, we reverse and remand to the circuit court for reinstatement of the punitive damage award.

Reversed and remanded with directions.

    Notes and Questions

    • Would (or should) the result in Jacque have been different if, instead of a mobile home seller making a scheduled delivery to a customer, the defendant had been an ambulance company responding to a call of a suspected heart attack? Of a broken leg? What if the snow-covered private road had instead been a recently collapsed bridge? What if Steenberg had tried to take the road despite the risks, and the truck had accidentally tipped and fallen onto the Jacques’ land?
    • Would (or should) the result in Jacque have been different if, instead of steadfastly refusing to permit Steenberg’s delivery truck to cross their land, the Jacques had demanded a large sum of money as a condition of permitting the crossing, which Steenberg refused to pay? Would the ultimate monetary award have been different? If so, what incentive does this case give property owners facing requests from third parties for the use of their otherwise idle resources? Would Steenberg have been better off not asking permission in the first place?
    • Blackstone’s description 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” is one of the most famous—and quotable—definitions of property ever written in English. But is also widely acknowledged to be hyperbolic to the point of falsity. Can you see why? What aspects of Blackstone’s own discussion of the “absolute right” of property are inconsistent with the “total exclusion of the right of any other individual in the universe”?
    • Would we really want our system of property to give private owners such “sole and despotic dominion…over the external things of the world”? The kind of dominion exercised by the Jacques? No matter what? Consider this: what kinds of problems could a motivated and unscrupulous property owner armed with such awesome power cause?
    1.1.2. State of New Jersey v. Shack

    58 N.J. 297, 277 A.2d 369 (1971)


    Defendants entered upon private property to aid migrant farmworkers employed and housed there. Having refused to depart upon the demand of the owner, defendants were charged with violating N.J.S.A. 2A:170—31 which provides that “[a]ny person who trespasses on any lands * * * after being forbidden so to trespass by the owner * * * is a disorderly person and shall be punished by a fine of not more than $50.” Defendants were convicted in the Municipal Court of Deerfield Township and again on appeal in the County Court of Cumberland County on a trial de novo. We certified their further appeal before argument in the Appellate Division.

    Before us, no one seeks to sustain these convictions. The complaints were prosecuted in the Municipal Court and in the County Court by counsel engaged by the complaining landowner, Tedesco. However Tedesco did not respond to this appeal, and the county prosecutor, while defending abstractly the constitutionality of the trespass statute, expressly disclaimed any position as to whether the statute reached the activity of these defendants.

    Complainant, Tedesco, a farmer, employs migrant workers for his seasonal needs. As part of their compensation, these workers are housed at a camp on his property.

    Defendant Tejeras is a field worker for the Farm Workers Division of the Southwest Citizens Organization for Poverty Elimination, known by the acronym SCOPE, a nonprofit corporation funded by the Office of Economic Opportunity pursuant to an act of Congress, 42 U.S.C.A. §§ 2861—2864. The role of SCOPE includes providing for the “health services of the migrant farm worker.”

    Defendant Shack is a staff attorney with the Farm Workers Division of Camden Regional Legal Services, Inc., known as “CRLS,” also a nonprofit corporation funded by the Office of Economic Opportunity pursuant to an act of Congress, 42 U.S.C.A. § 2809(a)(3). The mission of CRLS includes legal advice and representation for these workers.

    Differences had developed between Tedesco and these defendants prior to the events which led to the trespass charges now before us. Hence when defendant Tejeras wanted to go upon Tedesco’s farm to find a migrant worker who needed medical aid for the removal of 28 sutures, he called upon defendant Shack for his help with respect to the legalities involved. Shack, too, had a mission to perform on Tedesco’s farm; he wanted to discuss a legal problem with another migrant worker there employed and housed. Defendants arranged to go to the farm together. Shack carried literature to inform the migrant farmworkers of the assistance available to them under federal statutes, but no mention seems to have been made of that literature when Shack was later confronted by Tedesco.

    Defendants entered upon Tedesco’s property and as they neared the camp site where the farmworkers were housed, they were confronted by Tedesco who inquired of their purpose. Tejeras and Shack stated their missions. In response, Tedesco offered to find the injured worker, and as to the worker who needed legal advice, Tedesco also offered to locate the man but insisted that the consultation would have to take place in Tedesco’s office and in his presence. Defendants declined, saying they had the right to see the men in the privacy of their living quarters and without Tedesco’s supervsion. Tedesco thereupon summoned a State Trooper who, however, refused to remove defendants except upon Tedesco’s written complaint. Tedesco then executed the formal complaints charging violations of the trespass statute.


    The constitutionality of the trespass statute, as applied here, is challenged on several scores.

    It is urged that the First Amendment rights of the defendants and of the migrant farmworkers were thereby offended. Reliance is placed on Marsh v. Alabama, 326 U.S. 501, 66 S.Ct. 276, 90 L.Ed. 265 (1946) [and its progeny.]1  Those cases rest upon the fact that the property was in fact opened to the general public. There may be some migrant camps with the attributes of the company town in Marsh and of course they would come within its holding. But there is nothing of that character in the case before us, and hence there would have to be an extension of Marsh to embrace the immediate situation.

    Defendants also maintain that the application of the trespass statute to them is barred by the Supremacy Clause of the United States Constitution, Art. VI, cl. 2, and this on the premise that the application of the trespass statute would defeat the purpose of the federal statutes, under which SCOPE and CRLS are funded, to reach and aid the migrant farmworker.…

    These constitutional claims are not established by any definitive holding. We think it unnecessary to explore their validity. The reason is that we are satisfied that under our State law the ownership of real property does not include the right a bar access to governmental services available to migrant workers and hence there was no trespass within the meaning of the penal statute. The policy considerations which underlie that conclusion may be much the same as those which would be weighed with respect to one or more of the constitutional challenges, but a decision in nonconstitutional terms is more satisfactory, because the interests of migrant workers are more expansively served in that way than they would be if they had no more freedom than these constitutional concepts could be found to mandate if indeed they apply at all.


    Property rights serve human values. They are recognized to that end, and are limited by it. Title to real property cannot include dominion over the destiny of persons the owner permits to come upon the premises. Their well-being must remain the paramount concern of a system of law. Indeed the needs of the occupants may be so imperative and their strength so weak, that the law will deny the occupants the power to contract away what is deemed essential to their health, welfare, or dignity.

    Here we are concerned with a highly disadvantaged segment of our society. We are told that every year farmworkers and their families numbering more than one million leave their home areas to fill the seasonal demand for farm labor in the United States. The migrant farmworkers come to New Jersey in substantial numbers.… The migrant farmworkers are a community within but apart from the local scene. They are rootless and isolated. Although the need for their labors is evident, they are unorganized and without economic or political power. It is their plight alone that summoned government to their aid. In response, Congress provided under Title III—B of the Economic Opportunity Act of 1964 (42 U.S.C.A. § 2701 et seq.) for “assistance for migrant and other seasonally employed farmworkers and their families.” … As we have said, SCOPE is engaged in a program funded under this section, and CRLS also pursues the objectives of this section although, we gather, it is funded under s 2809(a)(3), which is not limited in its concern to the migrant and other seasonally employed farmworkers and seeks “to further the cause of justice among persons living in poverty by mobilizing the assistance of lawyers and legal institutions and by providing legal advice, legal representation, counseling, education, and other appropriate services.”

    These ends would not be gained if the intended beneficiaries could be insulated from efforts to reach them. It is in this framework that we must decide whether the camp operator’s rights in his lands may stand between the migrant workers and those who would aid them.…

    A man’s right in his real property of course is not absolute. It was a maxim of the common law that one should so use his property as not to injure the rights of others. Broom, Legal Maxims (10th ed. Kersley 1939), p. 238; 39 Words and Phrases, “Sic Utere Tuo ut Alienum Non Laedas,” p. 335. Although hardly a precise solvent of actual controversies, the maxim does express the inevitable proposition that rights are relative and there must be an accommodation when they meet. Hence it has long been true that necessity, private or public, may justify entry upon the lands of another….

    We see no profit in trying to decide upon a conventional category and then forcing the present subject into it. That approach would be artificial and distorting. The quest is for a fair adjustment of the competing needs of the parties, in the light of the realities of the relationship between the migrant worker and the operator of the housing facility.

    Thus approaching the case, we find it unthinkable that the farmer-employer can assert a right to isolate the migrant worker in any respect significant for the worker’s well-being. The farmer, of course, is entitled to pursue his farming activities without interference, and this defendants readily concede. But we see no legitimate need for a right in the farmer to deny the worker the opportunity for aid available from federal, State, or local services, or from recognized charitable groups seeking to assist him. Hence representatives of these agencies and organizations may enter upon the premises to seek out the worker at his living quarters. So, too, the migrant worker must be allowed to receive visitors there of his own choice, so long as there is no behavior hurtful to others, and members of the press may not be denied reasonable access to workers who do not object to seeing them.

    It is not our purpose to open the employer’s premises to the general public if in fact the employer himself has not done so. We do not say, for example, that solicitors or peddlers of all kinds may enter on their own; we may assume or the present that the employer may regulate their entry or bar them, at least if the employer’s purpose is not to gain a commercial advantage for himself or if the regulation does not deprive the migrant worker of practical access to things he needs.

    And we are mindful of the employer’s interest in his own and in his employees’ security. Hence he may reasonably require a visitor to identify himself, and also to state his general purpose if the migrant worker has not already informed him that the visitor is expected. But the employer may not deny the worker his privacy or interfere with his opportunity to live with dignity and to enjoy associations customary among our citizens. These rights are too fundamental to be denied on the basis of an interest in real property and too fragile to be left to the unequal bargaining strength of the parties.

    It follows that defendants here invaded no possessory right of the farmer-employer. Their conduct was therefore beyond the reach of the trespass statute. The judgments are accordingly reversed and the matters remanded to the County Court with directions to enter judgments of acquittal.

    Notes and Questions

    • Why did the property owner win in Jacque but lose in Shack? Isn’t the property right at issue in each of these cases the same—i.e., isn’t it the right to exclude?
    • What types of competing principles, policies, or interests will justify a limit on the right to exclude? Who should decide when such a limit is justified, and how? Who decided in Jacque? In Shack?
    • If we decide an interest is important enough to outweigh an owner’s right to exclude in one context, does that mean it should do so in all contexts? Consider the following statutes, and their effects on property owners’ right to exclude.


    1.1.3. Civil Rights Act of 1964, Title II, Section 201

    Codified at 42 U.S.C. § 2000a

    Prohibition against discrimination or segregation in places of public accommodation

    (a) Equal access

    All persons shall be entitled to the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of any place of public accommodation, as defined in this section, without discrimination or segregation on the ground of race, color, religion, or national origin.

    (b) Establishments affecting interstate commerce or supported in their activities by State action as places of public accommodation; lodgings; facilities principally engaged in selling food for consumption on the premises; gasoline stations; places of exhibition or entertainment; other covered establishments

    Each of the following establishments which serves the public is a place of public accommodation within the meaning of this subchapter if its operations affect commerce, or if discrimination or segregation by it is supported by State action:

    (1) any inn, hotel, motel, or other establishment which provides lodging to transient guests, other than an establishment located within a building which contains not more than five rooms for rent or hire and which is actually occupied by the proprietor of such establishment as his residence;

    (2) any restaurant, cafeteria, lunchroom, lunch counter, soda fountain, or other facility principally engaged in selling food for consumption on the premises, including, but not limited to, any such facility located on the premises of any retail establishment; or any gasoline station;

    (3) any motion picture house, theater, concert hall, sports arena, stadium or other place of exhibition or entertainment.…


    (e) Private establishments

    The provisions of this subchapter shall not apply to a private club or other establishment not in fact open to the public, except to the extent that the facilities of such establishment are made available to the customers or patrons of an establishment within the scope of subsection (b) of this section.

    1.1.4. Americans with Disabilities Act of 1990, Section 302-03

    Codified at 42 U.S.C. § 12182-83

    § 302 — Prohibition of discrimination by public accommodations

    (a) General rule

    No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation.

    § 303 — New construction and alterations in public accommodations and commercial facilities

    (a) Application of term

    Except as provided in subsection (b) of this section, as applied to public accommodations and commercial facilities, discrimination for purposes of section 12182(a) of this title includes—

    (1) a failure to design and construct facilities for first occupancy later than 30 months after July 26, 1990, that are readily accessible to and usable by individuals with disabilities, except where an entity can demonstrate that it is structurally impracticable to meet the requirements of such subsection . . .; and

    (2) . . ., a failure to make alterations in such a manner that, to the maximum extent feasible, the altered portions of the facility are readily accessible to and usable by individuals with disabilities, including individuals who use wheelchairs.

    (b) Elevator

    Subsection (a) of this section shall not be construed to require the installation of an elevator for facilities that are less than three stories or have less than 3,000 square feet per story unless the building is a shopping center, a shopping mall, or the professional office of a health care provider or unless the Attorney General determines that a particular category of such facilities requires the installation of elevators based on the usage of such facilities.

    1.2. Other Rights of Ownership

    The United States Supreme Court has noted that the right to exclude is “universally held to be a fundamental element of the property right,” Kaiser Aetna v. United States, 444 U.S. 164, 179-80 (1979), and “one of the most essential sticks in the bundle of rights that are commonly characterized as property.” Dolan v. City of Tigard, 512 U.S. 374, 384 (1994). But property owners typically enjoy a number of additional rights, which is one source of the “bundle of rights” metaphor referred to in Dolan. Among these are:

    • The right of possession (sometimes called a “possessory” right);
    • The right of use (sometimes called a “usufructary” right);
    • The power of alienation—i.e., the right to or transfer ownership to someone else—which can be further decomposed into
      • The power to make a gratuitous transfer, i.e., a gift (sometimes called a “donative” right)
      • The power to transfer in exchange for valuable consideration (sometimes called the right to “sell” or “vend,” or the right of “market-alienation”)
      • The power to dispose of property owned during life after death by will (sometimes called the “testamentary” right, or the right to “devise”)

    As with the right to exclude, each of these rights may be limited, particularly when they have the potential to conflict with competing rights or interests. Some of those limits are hinted at in the Shack: consider the New Jersey Supreme Court’s reference to the latin maxim “sic utere tuo ut alienum non laedas”. This maxim expresses a long-standing limitation on property owners’ rights of use. Does it make sense for the court to have invoked this maxim in Shack? Do you think Shack is better understood as a case about the right to exclude or some other right of property owners?

    We will study the law’s protection of possession (and the limits of that protection) in our units on Allocation, Found and Stolen Property, and Adverse Possession. We will make an extensive study of the right to alienate in our units on Gifts, Estates and Future Interests, Co-Ownership, and Land Conveyancing. And we will return to limits on the right of use, and in particular the sic utere tuo principle, in our chapter on Nuisance. But for now let us consider one example of how these other rights of ownership may be ambiguous, and subjected to limits in the face of competing interests:

    1.2.1. Eyerman v. Mercantile Trust Co.

    524 S.W.2d 210 (Mo. Ct. App. 1975)

    RENDLEN, Judge.

    Plaintiffs appeal from denial of their petition seeking injunction to prevent demolition of a house at #4 Kingsbury Place in the City of St. Louis. The action is brought by individual neighboring property owners and certain trustees for the Kingsbury Place Subdivision. We reverse.

    Louise Woodruff Johnston, owner of the property in question, died January 14, 1973, and by her will directed the executor “. . . to cause our home at 4 Kingsbury Place . . . to be razed and to sell the land upon which it is located . . . and to transfer the proceeds of the sale . . . to the residue of my estate.” Plaintiffs assert that razing the home will adversely affect their property rights, violate the terms of the subdivision trust indenture for Kingsbury Place, produce an actionable private nuisance and is contrary to public policy.

    The area involved is a “private place” established in 1902 by trust indenture which provides that Kingsbury Place and Kingsbury Terrace will be so maintained, improved, protected and managed as to be desirable for private residences. The trustees are empowered to protect and preserve “Kingsbury Place” from encroachment, trespass, nuisance or injury, and it is “the intention of these presents, forming a general scheme of improving and maintaining said property as desirable residence property of the highest class.” The covenants run with the land and the indenture empowers lot owners or the trustees to bring suit to enforce them.

    Except for one vacant lot, the subdivision is occupied by handsome, spacious two and three-story homes, and all must be used exclusively as private residences. The indenture generally regulates location, costs and similar features for any structures in the subdivision, and limits construction of subsidiary structures except those that may beautify the property, for example, private stables, flower houses, conservatories, play houses or buildings of similar character.

    On trial the temporary restraining order was dissolved and all issues found against the plaintiffs.

    …Whether #4 Kingsbury Place should be razed is an issue of public policy involving individual property rights and the community at large. The plaintiffs have pleaded and proved facts sufficient to show a personal, legally protectible interest.

    Demolition of the dwelling will result in an unwarranted loss to this estate, the plaintiffs and the public. The uncontradicted testimony was that the current value of the house and land is $40,000.00; yet the estate could expect no more than $5,000.00 for the empty lot, less the cost of demolition at $4,350.00, making a grand loss of $39,350.33 if the unexplained and capricious direction to the executor is effected. Only $650.00 of the $40,000.00 asset would remain.

    Kingsbury Place is an area of high architectural significance, representing excellence in urban space utilization. Razing the home will depreciate adjoining property values by an estimated $10,000.00 and effect corresponding losses for other neighborhood homes. The cost of constructing a house of comparable size and architectural exquisiteness would approach $200,000.00.

    …To remove #4 Kingsbury from the street was described as having the effect of a missing front tooth. The space created would permit direct access to Kingsbury Place from the adjacent alley, increasing the likelihood the lot will be subject to uses detrimental to the health, safety and beauty of the neighborhood. The mere possibility that a future owner might build a new home with the inherent architectural significance of the present dwelling offers little support to sustain the condition for destruction.

    We are constrained to take judicial notice of the pressing need of the community for dwelling units as demonstrated by recent U.S. Census Bureau figures showing a decrease of more than 14% in St. Louis City housing units during the decade of the 60’s. This decrease occurs in the face of housing growth in the remainder of the metropolitan area. It becomes apparent that no individual, group of individuals nor the community generally benefits from the senseless destruction of the house; instead, all are harmed and only the caprice of the dead testatrix is served. Destruction of the house harms the neighbors, detrimentally affects the community, causes monetary loss in excess of $39,000.00 to the estate and is without benefit to the dead woman. No reason, good or bad, is suggested by the will or record for the eccentric condition. This is not a living person who seeks to exercise a right to reshape or dispose of her property; instead, it is an attempt by will to confer the power to destroy upon an executor who is given no other interest in the property. To allow an executor to exercise such power stemming from apparent whim and caprice of the testatrix contravenes public policy.

    The Missouri Supreme Court held in State ex rel. McClintock v. Guinotte, 275 Mo. 298, 204 S.W. 806, 808 (banc 1918), that the taking of property by inheritance or will is not an absolute or natural right but one created by the laws of the sovereign power. The court points out the state “may foreclose the right absolutely, or it may grant the right upon conditions precedent, which conditions, if not otherwise violative of our Constitution, will have to be complied with before the right of descent and distribution (whether under the law or by will) can exist.” Further, this power of the state is one of inherent sovereignty which allows the state to “say what becomes of the property of a person, when death forecloses his right to control it.” McClintock v. Guinotte, supra at 808, 809. While living, a person may manage, use or dispose of his money or property with fewer restraints than a decedent by will. One is generally restrained from wasteful expenditure or destructive inclinations by the natural desire to enjoy his property or to accumulate it during his lifetime. Such considerations however have not tempered the extravagance or eccentricity of the testamentary disposition here on which there is no check except the courts.

    In the early English case of Egerton v. Brownlow, 10 Eng.Rep. 359, 417 (H.L.C. it is stated: “The owner of an estate may himself do many things which he could not (by a condition) compel his successor to do. One example is sufficient. He may leave his land uncultivated, but he cannot by a condition compel his successor to do so. The law does not interfere with the owner and compel him to cultivate his land, (though it may be for the public good that land should be cultivated) so far the law respects ownership; but when, by a condition, he attempts to compel his successor to do what is against the public good, the law steps in and pronounces the condition void and allows the devisee to enjoy the estate free from the condition.”…

    [The Restatement, Second, of Trusts, Section 124, states:] “Although a person may deal capriciously with his own property, his self interest ordinarily will restrain him from doing so. Where an attempt is made to confer such a power upon a person who is given no other interest in the property, there is no such restraint and it is against public policy to allow him to exercise the power if the purpose is merely capricious.” The text is followed by this illustration: “A bequeaths $1,000.00 to B in trust to throw the money into the sea. B holds the money upon a resulting trust for the estate of A and is liable to the estate of A if he throws the money into the sea.” … It is important to note that the purposes of [Mrs. Johnston’s] trust will not be defeated by injunction; instead, the proceeds from the sale of the property will pass into the residual estate and thence to the trust estate as intended, and only the capricious destructive condition will be enjoined.

    In Colonial Trust Co. v. Brown et al., 105 Conn. 261, 135 A. 555 (1926) the court invalidated, as against public policy, the provisions of a will restricting erection of buildings more than three stories in height and forbidding leases of more than one year on property known as “The Exchange Place” in the heart of the City of Waterbury. The court stated:

    “As a general rule, a testator has the right to impose such conditions as he pleases upon a beneficiary as conditions precedent to the vesting of an estate in him, or to the enjoyment of a trust estate by him as cestui que trust. He may not, however, impose one that is uncertain, unlawful or opposed to public policy.” [Colonial Trust Co., 135 A. at 564.]

    …The term “public policy” cannot be comprehensively defined in specific terms but the phrase “against public policy” has been characterized as that which conflicts with the morals of the time and contravenes any established interest of society. Acts are said to be against public policy “when the law refuses to enforce or recognize them, on the ground that they have a mischievous tendency, so as to be injurious to the interests of the state, apart from illegality or immorality.” Dille v. St. Luke’s Hospital, 355 Mo. 436, 196 S.W.2d 615, 620 (1946); Brawner v. Brawner, 327 S.W.2d 808, 812 (Mo. banc 1959).

    Public policy may be found in the Constitution, statutes and judicial decisions of this state or the nation. But in a case of first impression where there are no guiding statutes, judicial decisions or constitutional provisions, “a judicial determination of the question becomes an expression of public policy provided it is so plainly right as to be supported by the general will.” In re Mohler’s Estate, 343 Pa. 299, 22 A.2d 680, 683 (1941). In the absence of guidance from authorities in its own jurisdiction, courts may look to the judicial decisions of sister states for assistance in discovering expressions of public policy.

    Although public policy may evade precise, objective definition, it is evident from the authorities cited that this senseless destruction serving no apparent good purpose is to be held in disfavor. A well-ordered society cannot tolerate the waste and destruction of resources when such acts directly affect important interests of other members of that society. It is clear that property owners in the neighborhood of #4 Kingsbury, the St. Louis Community as a whole and the beneficiaries of testatrix’s estate will be severely injured should the provisions of the will be followed. No benefits are present to balance against this injury and we hold that to allow the condition in the will would be in violation of the public policy of this state.

    Having thus decided, we do not reach the plaintiffs’ contentions regarding enforcement of the restrictions in the Kingsbury Place trust indenture and actionable private nuisance, though these contentions may have merit.2   …

    DOWD, P.J., concurs.

    CLEMENS, Judge (dissenting).

    I dissent.

    …The simple issue in this case is whether the trial court erred by refusing to enjoin a trustee from carrying out an explicit testamentary directive. In an emotional opinion, the majority assumes a psychic knowledge of the testatrix’ reasons for directing her home be razed; her testamentary disposition is characterized as ‘capricious,’ ‘unwarranted,’ ‘senseless,’ and ‘eccentric.’ But the record is utterly silent as to her motives…. The fact is the majority’s holding is based upon wispy, self-proclaimed public policy grounds that were only vaguely pleaded, were not in evidence, and were only sketchily briefed by the plaintiffs.

    …The court has resorted to public policy in order to vitiate Mrs. Johnston’s valid testamentary direction. But this is not a proper case for court-defined public policy.

    …The leading Missouri case on public policy as that doctrine applies to a testator’s right to dispose of property is In re Rahn’s Estate, 316 Mo. 492, 291 S.W. 120 [1, 2] (banc 1927), cert. den. 274 U.S. 745, 47 S.Ct. 591, 71 L.Ed. 1325. There, an executor refused to pay a bequest on the ground the beneficiary was an enemy alien, and the bequest was therefore against public policy. The court denied that contention: “We may say, at the outset, that the policy of the law favors freedom in the testamentary disposition of property and that it is the duty of the courts to give effect to the intention of the testator, as expressed in his will, provided such intention does not contravene an established rule of law.” And the court wisely added, “it is not the function of the judiciary to create or announce a public policy of its own, but solely to determine and declare what is the public policy of the state or nation as such policy is found to be expressed in the Constitution, statutes, and judicial decisions of the state or nation, . . . not by the varying opinions of laymen, lawyers, or judges as to the demands or the interests of the public.” And, in cautioning against judges declaring public policy the court stated: “Judicial tribunals hold themselves bound to the observance of rules of extreme caution when invoked to declare a transaction void on grounds of public policy, and prejudice to the public interest must clearly appear before the court would be warranted in pronouncing a transaction void on this account.” In resting its decision on public-policy grounds, the majority opinion has transgressed the limitations declared by our Supreme Court in Rahn’s Estate.

    …As much as our aesthetic sympathies might lie with neighbors near a house to be razed, those sympathies should not so interfere with our considered legal judgment as to create a questionable legal precedent. Mrs. Johnston had the right during her lifetime to have her house razed, and I find nothing which precludes her right to order her executor to raze the house upon her death. It is clear that “the law favors the free and untrammeled use of real property.” Gibbs v. Cass, 431 S.W.2d 662(2) (Mo.App.1968). This applies to testamentary dispositions. Mississippi Valley Trust Co. v. Ruhland, 359 Mo. 616, 222 S.W.2d 750(2) (1949). An owner has exclusive control over the use of his property subject only to the limitation that such use may not substantially impair another’s right to peaceably enjoy his property. Plaintiffs have not shown that such impairment will arise from the mere presence of another vacant lot on Kingsbury Place….

    Notes and Questions

    • What right of ownership is at issue in Eyerman? Is it a right of use? Of alienation? Of testation? A distinct right to destroy? If the latter, is such a right among the rights of property owners?
    • Could we understand Mrs. Johnston’s instruction to raze her house to the ground as an exercise of the right to exclude, extended in time to after her death? Is this a useful way to think about her instruction? Either way, should we allow owners to continue to control resources forever—even long after their deaths—if they so choose? (We will revisit this concern in our unit on Estates and Future Interests).
    • If Mrs. Johnston had attempted to raze her house to the ground during her lifetime, could anyone legally prevent her from doing so? If not, why can she be prevented from ordering the destruction of her house by will?
    1.3. So What Is Property?

    We began this chapter with Blackstone’s strong statement of the “absolute right” of property, and have watched it gradually melt away. We have seen courts use a subtle and diverse array of tools to vindicate interests that conflict with a property owner’s “absolute” rights. In Marsh v. Alabama—discussed in Shack—the Court opined that state-law rights of property must give way to more important principles enshrined in the federal Constitution. In Shack itself, however the court explicitly avoids this kind of Constitutional trump card by manipulating the scope of the owner’s rights under the common law of property to avoid conflict with competing statutory policies. The court in Eyerman takes a similar approach to the testatrix’s efforts to direct disposition of her property after death, even where there appears to be no danger of conflict with any Constitutional—or even statutory—interest. Is there any limit to the scope or variety of these types of manipulations? And if not, how are we ever to say what property is?

    We might look to two possible foundations for a more resilient concept of property. One foundation might be that property is a particular cohesive construct: a package deal. This is, indeed, one common interpretation of the “bundle of rights” metaphor we first encountered in Jacque. Thus, when we say that a person owns something, we might be saying that the person enjoys the various rights of owners we have been studying (the right to exclude, possess, use, alienate, etc.) with respect to that thing. If we could support this interpretation, it really might help to distinguish property in a meaningful way from other private law rights—such as those that arise in contract or tort—and allow us to predict how particular disputes are likely to shake out. Of course, the cases we have already studied—in which courts limit or deny owners’ rights depending on the circumstances in which they are asserted—may give us some doubts about our likelihood of success. And we’ve only just begun: We will be encountering more legal authorities that will challenge our ability to think about property as a coherent “bundle” of rights, as opposed to an ad hoc and unstable collection of whatever rights and duties we choose to apply in a particular set of circumstances:

    • In our unit on the Subject Matter of Property, we will see how some things may be called “property” even though they are not subject to certain of the traditional rights of ownership—particularly the right to alienate. We will also see how some things that are subject to certain of the traditional rights of ownership—such as the rights to possess and to exclude—are nevertheless excluded from the legal category of “property.”
    • In our unit on Estates and Future Interests, we will see how property rights can be temporally divided—that a property right in land that exists today may nevertheless not entitle its owner to possession of that land until some point in the future.
    • In our unit on Concurrent Interests, we will see how the division of ownership rights among multiple people similarly cabins the rights to exclude, possess, alienate, and use—at least among co-owners.
    • In our unit on Takings, we will see that in some circumstances the right to exclude, standing alone, may be a sufficient condition for identifying “property.”

    So perhaps this approach is not very promising. While there is a menu of rights that appear to be consistent with ownership, it appears that the concept or label of “property” does not necessarily depend on a particular combination of those rights being present.

    A second possible foundation for our conception of property is that property, at the very least, involves some thing that is the subject of the right (or rights): that it is a right in rem. In particular, it might be intimately tied up with an individual’s right to control some thing—principally but not only by excluding others from access to that thing. Again, the requirement of intermediation by some thing might also help distinguish property from contract and tort—which may but need not involve competing claims to a thing.

    We will consider the types of things that might qualify as property in our unit on the Subject Matter of Property. But before doing so, we ought to consider whether thinking of property in this way—as a relationship between people and things—is sound, or useful. Consider the following scholarly treatments of these ideas.

    1.3.1. Wesley Newcomb Hohfeld, Some Fundamental Legal Conceptions as Applied in Judicial Reasoning

    23 Yale L. J. 16, 28-30, 31-33, 45-46, 55 (1913)

    One of the greatest hindrances to the clear understanding, the incisive statement, and the true solution of legal problems frequently arises from the express or tacit assumption that all legal relations may be reduced to “rights” and “duties,” and that these latter categories are therefore adequate for the purpose of analyzing even the most complex legal interests, such as trusts, options, escrows, “future” interests, corporate interests, etc. Even if the difficulty related merely to inadequacy and ambiguity of terminology, its seriousness would nevertheless be worthy of definite recognition and persistent effort toward improvement; for in any closely reasoned problem, whether legal or non-legal, chameleon-hued words are a peril both to clear thought and to lucid expression. As a matter of fact, however, the above mentioned inadequacy and ambiguity of terms unfortunately reflect, all too often, corresponding paucity and confusion as regards actual legal conceptions. That this is so may appear in some measure from the discussion to follow.

    The strictly fundamental legal relations are, after all, sui generis; and thus it is that attempts at formal definition are always unsatisfactory, if not altogether useless. Accordingly, the most promising line of procedure seems to consist in exhibiting all of the various relations in a scheme of “opposites” and “correlatives,” and then proceeding to exemplify their individual scope and application in concrete cases. An effort will be made to pursue this method:

    . . .

    Recognizing, as we must, the very broad and indiscriminate use of the term, “right,” what clue do we find, in ordinary legal discourse, toward limiting the word in question to a definite and appropriate meaning. That clue lies in the correlative “duty,” for it is certain that even those who use the word and the conception “right” in the broadest possible way are accustomed to thinking of “duty” as the invariable correlative. . . .

    In other words, if X has a right against Y that he shall stay off the former’s land, the correlative (and equivalent) is that Y is under a duty toward X to stay off the place. If, as seems desirable, we should seek a synonym for the term “right” in this limited and proper meaning, perhaps the word “claim” would prove the best. . . .

    As indicated in the above scheme of jural relations, a privilege is the opposite of a duty, and the correlative of a “no-right.” In the example last put, whereas X has a right or claim that Y, the other man, should stay off the land, he himself has the privilege of entering on the land; or, in equivalent words, X does not have a duty to stay off. The privilege of entering is the negation of a duty to stay off. As indicated by this case, some caution is necessary at this point, for, always, when it is said that a given privilege is the mere negation of a duty, what is meant, of course, is a duty having a content or tenor precisely opposite to that of the privilege in question. Thus, if, for some special reason, X has contracted with Y to go on the former's own land, it is obvious that X has, as regards Y, both the privilege of entering and the duty of entering. The privilege is perfectly consistent with this sort of duty,—for the latter is of the same content or tenor as the privilege;—but it still holds good that, as regards Y, X's privilege of entering is the precise negation of a duty to stay off. . . .

    Passing now to the question of “correlatives,” it will be remembered, of course, that a duty is the invariable correlative of that legal relation which is most properly called a right or claim. That being so, if further evidence be needed-as to the fundamental and important difference between a right (or claim) and a privilege, surely it is found in the fact that the correlative of the latter relation is a “no-right,” there being no single term available to express the latter conception. Thus, the correlative of X's right that Y shall not enter on the land is Y's duty not to enter; but the correlative of X's privilege of entering himself is manifestly Y's “no-right” that X shall not enter. . . .

    The nearest synonym [for power] for any ordinary case seems to be (legal) “ability,”-- the latter being obviously the opposite of “inability,” or “disability.” . . .

    Many examples of legal powers may readily be given. Thus, X, the owner of ordinary personal property “in a tangible object” has the power to extinguish his own legal interest (rights, powers, immunities, etc.) through that totality of operative facts known as abandonment; and—simultaneously and correlatively—to create in other persons privileges and powers relating to the abandoned object—e, g., the power—to acquire title to the later by appropriating it. Similarly, X has the power to transfer his interest to Y,-that is, to extinguish his own interest and concomitantly create in Y a new and corresponding interest. . . . The creation of an agency relation involves, inter alia, the grant of legal powers to the so-called agent, and the creation of correlative liabilities in the principal. That is to say, one party P has the power to create agency powers in another party A,—for example, . . . the power to impose (so-called) contractual obligations on P, the power to discharge a debt, owing to P, the power to “receive” title to property so that it shall vest in P,and so forth. . . .

    Perhaps it will also be plain, from the preliminary outline and from the discussion down to this point, that a power bears the same general contrast to an immunity that a right does to a privilege. A right is one's affirmative claim against another, and a privilege is one's freedom from the right or claim of another. Similarly, a power is one's affirmative “control” over a given legal relation as against another; whereas an immunity is one's freedom from the legal power or “control” of another as regards some legal relation.

    A few examples may serve to make this clear. X, a landowner, has, as we have seen, power to alienate to Y or to any other ordinary party. On the other hand, X has also various immunities as against Y, and all other ordinary parties. For Y is under a disability (i. e., has no power) so far as shifting the legal interest either to himself or to a third party is concerned . . . .

    1.3.2. Wesley Newcomb Hohfeld, Fundamental Legal Conceptions as Applied in Judicial Reasoning

    26 Yale L. J. 710, 713-745 (1917)

    The phrases in personam and in rem, in spite of the scope and variety of situations to which they are commonly applied, are more usually assumed by lawyers, judges, and authors to be of unvarying meaning and free of ambiguities calculated to mislead the unwary. The exact opposite is, however, true; and this has occasionally been explicitly emphasized by able judges whose warnings are worthy of notice….

    A … right in personam … is either a unique right residing in a person (or group of persons) and availing against a single person (or single group of persons); or else it is one of a few fundamentally similar, yet separate, rights availing respectively against a few definite persons. A … right in rem … is always one of a large class of fundamentally similar yet separate rights, actual and potential, residing in a single person (or single group of persons) but availing respectively against persons constituting a very large and indefinite class of people.

    Probably all would agree substantially on the meaning and significance of a right in personam, as just explained; and it is easy to give a few preliminary examples: If B owes A a thousand dollars, A has an affirmative right in personam, … that B shall transfer to A the legal ownership of that amount of money. If, to put a contrasting situation, A already has title to one thousand dollars, his rights against others in relation thereto are … rights in rem. In the one case the money is owed to A; in the other case it is owned by A. If Y has contracted to work for X during the ensuing six months, X has an affirmative right in personam that Y shall render such service, as agreed. Similarly as regards all other contractual or quasi-contractual rights of this character….

    In contrast to these examples are those relating to rights, or claims, in rem…. If A owns and occupies Whiteacre3 , not only B but also a great many other persons—not necessarily all persons—are under a duty, e.g., not to enter on A’s land. A’s right against B is a … right in rem, for it is simply one of A’s class of similar, though separate, rights, actual and potential, against very many persons. The same points apply as regards A’s right that B shall not commit a battery on him, A’s right that B shall not alienate the affections of A’s wife, and A’s right that B shall not manufacture a certain article as to which A has a so-called patent….

    …[I]t seems necessary to show very concretely and definitely how, because of the unfortunate terminology involved, the expression “right in rem” is all too frequently misconceived, and meanings attributed to it that could not fail to blur and befog legal thought and argument. Some of these loose and misleading usages will now be considered in detail, it being hoped that the more learned reader will remember that this discussion, being intended for the assistance of law school students more than for any other class of persons, is made more detailed and elementary than would otherwise be necessary.

    (a) A right in rem is not a right “against a thing”: … Any person, be he student or lawyer, unless he has contemplated the matter analytically and assiduously, or has been put on notice by books or other means, is likely, first, to translate right in personam as a right against a person; and then he is almost sure to interpret right in rem, naturally and symmetrically as he thinks, as a right against a thing. … Such a notion of rights in rem is, as already intimated, crude and fallacious; and it can but serve as a stumbling-block to clear thinking and exact expression. A man may indeed sustain close and beneficial physical relations to a given physical thing: he may physically control and use such thing, and he may physically exclude others from any similar control or enjoyment. But, obviously, such purely physical relations could as well exist quite apart from, or occasionally in spite of, the law of organized society: physical relations are wholly distinct from jural relations. The latter take significance from the law; and, since the purpose of the law is to regulate the conduct of human beings, all jural relations must, in order to be clear and direct in their meaning, be predicated of such human beings.…

    What is here insisted on, —i.e., that all rights in rem are against persons, —is not to be regarded merely as a matter of taste or preference for one out of several equally possible forms of statement or definition. Logical consistency seems to demand such a conception, and nothing less than that. Some concrete examples may serve to make this plain. Suppose that A is the owner of Blackacre and X is the owner of Whiteacre. Let it be assumed, further, that, in consideration of $100 actually paid by A to B, the latter agrees with A never to enter on X’s land, Whiteacre. It is clear that A’s right against B concerning Whiteacre is a right in personam…; for A has no similar and separate rights concerning Whiteacre availing respectively against other persons in general. On the other hand, A’s right against B concerning Blackacre is obviously a right in rem…; for it is but one of a very large number of fundamentally similar (though separate) rights which A has respectively against B., C, D, E, F, and a great many other persons. It must now be evident, also, that A’s Blackacre right against B is, intrinsically considered, of the same general character as A’s Whiteacre right against B. The Blackacre right differs, so to say, only extrinsically, that is, in having many fundamentally similar, though distinct, rights as its “companions.” So, in general, we might say that a right in personam is one having few, if any, “companions”; whereas a right in rem always has many such “companions.”

    If, then, the Whiteacre right, being a right in personam, is recognized as a right against a person, must not the Blackacre right also, being, point for point, intrinsically of the same general nature, be conceded to be a right against a person? If not that, what is it? How can it be apprehended, or described, or delimited at all? …

    (b) A … right in rem is not always one relating to a thing, i.e., a tangible object: …[A] right in rem is not necessarily one relating to, or concerning, a thing, i.e., a tangible object. … The term right in rem … is so generic in its denotation as to include: 1. …[R]ights, or claims, relating to a definite tangible object: e.g., a landowner’s right that any ordinary person shall not enter on his land, or a chattel owner’s right that any ordinary person shall not physically harm the object involved, —be  it horse, watch, book, etc. 2. …[R]ights (or claims) relating neither to definite tangible object nor to (tangible) person, e. g., a patentee’s right, or claim, that any ordinary person shall not manufacture articles covered by the patent; 3. …[R]ights, or claims, relating to the holder’s own person, e. g., his right that any ordinary person shall not strike him, or that any ordinary person shall not restrain his physical liberty, i.e., “falsely imprison” him; 4. …[R]ights residing in a given person and relating to another person, e. g., the right of a father that his daughter shall not be seduced, or the right of a husband that harm shall not be inflicted on his wife so as to deprive him of her company and assistance; 5. ..[R]ights, or claims, not relating directly to either a (tangible) person or a tangible object, e. g., a person’s right that another shall not publish a libel of him, or a person’s right that another shall not publish his picture, the so-called “right of privacy” existing in some states, but not in all.

    It is thus seen that some rights in rem…relate fairly directly to physical objects; some fairly directly to persons; and some fairly directly neither to tangible objects nor to persons….

    1.3.3. Thomas W. Merrill & Henry E. Smith, What Happened to Property in Law and Economics?

    111 Yale L. J. 357, 357-365 (2001)4 

    It is a commonplace of academic discourse that property is simply a “bundle of rights,” and that any distribution of rights and privileges among persons with respect to things can be dignified with the (almost meaningless) label “‘property.”’ By and large, this view has become conventional wisdom among legal scholars: Property is a composite of legal relations that holds between persons and only secondarily or incidentally involves a “thing.” Someone who believes that property is a right to a thing is assumed to suffer from a childlike lack of sophistication—or worse.

    … In other times and places, a very different conception of property has prevailed. In this alternative conception, property is a distinctive type of right to a thing, good against the world. This understanding of the in rem character of the right of property is a dominant theme of the civil law’s “law of things.” For Anglo-American lawyers and legal economists, however, such talk of a special category of rights related to things presumably illustrates the grip of conceptualism on the civilian mind and a slavish devotion to the gods of Roman law.

    Or does it? In related work, we have argued that, far from being a quaint aspect of the Roman or feudal past, the in rem character of property and its consequences are vital to an understanding of property as a legal and economic institution5 . Because core property rights attach to persons only through the intermediary of some thing, they have an impersonality and generality that is absent from rights and privileges that attach to persons directly. When we encounter a thing that is marked in the conventional manner as being owned, we know that we are subject to certain negative duties of abstention with respect to that thing-not to enter upon it, not to use it, not to take it, etc. And we know all this without having any idea who the owner of the thing actually is. In effect, these universal duties are broadcast to the world from the thing itself….

    Property rights historically have been regarded as in rem. In other words, property rights attach to persons insofar as they have a particular relationship to some thing and confer on those persons the right to exclude a large and indefinite class of other persons (“the world”) from the thing. In this sense, property rights are different from in personam rights, such as those created by contracts or by judicial judgments. In personam rights attach to persons as persons and obtain against one or a small number of other identified persons. A number of historically significant property theorists have recognized the in rem nature of property rights and have perceived that this feature is key because it establishes a base of security against a wide range of interferences by others….

    … Blackstone perceived that property rights are important because they establish a basis of security of expectation regarding the future use and enjoyment of particular resources. By establishing a right to resources that holds against all the world, property provides a guarantee that persons will be able to reap what they have sown…. In other words, property is important because it gives legal sanction to the efforts of the owner of a thing to exclude an indefinite and anonymous class of marauders, pilferers, and thieves, thereby encouraging development of the thing.

    … In contrast, the role of property emphasized in modem economic discussions—providing a baseline for contractual exchange and a mechanism for resolving disputes over conflicting uses of resources—was at most of secondary importance in these traditional accounts. … Early in the twentieth century, Wesley Hohfeld provided an account of legal relations that proved to be especially influential in transforming the underlying assumptions about property rights in Anglo-American scholarship. … Hohfeld noted … that in personam rights are unique rights residing in a person and availing against one or a few definite persons; in rem rights, in contrast, reside in a person and avail against “persons constituting a very large and indefinite class of people.”

    Significantly, however, Hohfeld failed to perceive that in rem property rights are qualitatively different in that they attach to persons insofar as they have a certain relationship to some thing. Rather, Hohfeld suggested that in personam and in rem rights consist of exactly the same types of rights, privileges, duties, and so forth, and differ only in the indefiniteness and the number of the persons who are bound by these relations. To use a modern expression, Hohfeld thought that in rem relations could be “cashed out” into the same clusters of rights, duties, privileges, liabilities, etc., as are constitutive of in personam relations.

    Hohfeld did not use the metaphor “bundle of rights” to describe property. But his theory of jural opposites and correlatives, together with his effort to reduce in rem rights to clusters of in personam rights, provided the intellectual justification for this metaphor, which became popular among the legal realists in the 1920s and 1930s.  Different writers influenced by realism took the metaphor to different extremes. For some, the bundle-of-rights concept simply meant that property could be reduced to recognizable collections of functional attributes, such as the right to exclude, to use, to transfer, or to inherit particular resources. For others, property had no inherent meaning at all. As one pair of writers put it, the concept of property is nothing more than “a euphonious collocation of letters which serves as a general term for the miscellany of equities that persons hold in the commonwealth.”6 

    Notwithstanding these variations, the motivation behind the realists’ fascination with the bundle-of-rights conception was mainly political. They sought to undermine the notion that property is a natural right, and thereby smooth the way for activist state intervention in regulating and redistributing property. If property has no fixed core of meaning, but is just a variable collection of interests established by social convention, then there is no good reason why the state should not freely expand or, better yet, contract the list of interests in the name of the general welfare. The realist program of dethroning property was on the whole quite successful. The conception of property as an infinitely variable collection of rights, powers, and duties has today become a kind of orthodoxy. Not coincidentally, state intervention in economic matters greatly increased in the middle decades of the twentieth century, and the constitutional rights of property owners generally receded.

    1.3.4. Henry E. Smith, Property as the Law of Things

    125 Harv. L. Rev. 1691, 1696-98, 1700-08 (2012)7 

    As an analytical device, the bundle picture can be very useful. It provides a highly accurate description of who can do what to whom in a legal (and perhaps nonlegal) sense. It provides an interesting theoretical baseline: how would one describe the relation of a property owner to various others if one were writing on a blank slate and doing the description in a fully bottom-up manner, relation by relation, party by party? In this, the Hohfeldian world is a little like the Coasean world of zero transaction costs—a useful theoretical construct.

    The resemblance is no accident. Like the zero-transaction-cost world, no property system ever has or will build up legal relations smallest piece by smallest piece. Interestingly, in a zero-transaction cost world, one could do just that, and any benefit to be secured by parsing out relations in a fine-grained manner could be obtained at zero cost. That is not our world.

    The problem with the bundle of rights is that it is treated as a theory of how our world works rather than as an analytical device or as a theoretical baseline. In the realist era, the benefits of tinkering with property were expressed in bundle terms without a corresponding theory of the costs of that tinkering. Indeed, in the most tendentious versions of the picture, the traditional baselines of the law were mocked, and the idea was to dethrone them in order to remove them as barriers to enlightened social engineering. In this version of the bundle picture, Hohfeldian sticks and potentially others are posited to describe the relations holding between persons; the fact that the relations hold with respect to a thing is relatively unimportant or, in some versions, of no importance. “Property” is simply a conclusory label we might attach to the collection. In its classic formulation, the bundle picture puts no particular constraints on the contents of bundles: they are totally malleable and should respond to policy concerns in a fairly direct fashion. These policy-motivated adjustments usually involve adding or subtracting sticks and reallocating them among concerned parties or to society. This version of the bundle explains everything and so explains nothing.

    . . . In recent times, various commentators have argued that property is not fully captured by the bundle picture. Going beyond the bundle usually involves emphasizing exclusion or some robust notion of the right to use. It can be motivated by analytical jurisprudence, natural rights, or information cost economics. The bundle theory can incorporate some of these perspectives. Consider, for example, the recent resurgence of interest in the numerus clausus; this principle that property forms come in a finite and closed menu can be added onto the bundle theory as a “menu” of collections of sticks. Bundle theorists can accommodate this development. But they are being reactive in this regard. . . .

    In this Article, I present a theory that aims higher. At the most basic level, the extreme bundle picture takes too little account of the costs of delineating rights. . . .

    . . . Here, I present an alternative to the bundle picture that I call an architectural or modular theory of property. This theory responds to information costs—it conceives of property as a law of modular “things.” . . .

    Because it makes sense in modern property systems to delegate to owners a choice from a range of uses and because protection allows for stability, appropriability, facilitation of planning and investment, liberty, and autonomy, we typically start with an exclusion strategy—and that goes not just for private property but for common and public property as well. “Use” can include nonconsumptive uses relating to conservation. The exclusion strategy defines a chunk of the world—a thing—under the owner's control, and much of the information about the thing's uses, their interactions, and the user is irrelevant to the outside world. Duty bearers know not to enter Blackacre without permission or not to take cars, without needing to know what the owner is using the thing for, who the owner is, who else might have rights and other interests, and so on. But dividing the world into chunks is not enough: spillovers and scale problems call for more specific rules to deal with problems like odors and lateral support, and to facilitate coordination (for example, covenants, common interest communities, and trusts). These governance strategies focus more closely on narrower classes of use and sometimes make more specific reference to their purposes, and so they are more contextual.

    The exclusion-governance architecture manages complexity in a way totally uncaptured by the bundle picture, and importantly, the former is modular while the latter is not. The exclusion strategy defines what a thing is to begin with. A fundamental question is how to classify “things,” and, hence, which aspects of “things” are the most basic units of property law. Many important features of property follow from the semitransparent boundaries between things. Boundaries carve up the world into semiautonomous components—modules—that permit private law to manage highly complex interactions among private parties. . . .

    The modular theory explains property's structure, which includes providing some reason why those structures are not otherwise. In a zero-transaction-cost world, we could use all governance all the time, whether supplied by government or through super fine-grained contracting among all the concerned parties. That is not our world, and the main point of exclusion as a delineation strategy is that it is a shortcut over direct delineation of this more “complete” set of legal relations. Analytically, it might be interesting to think of property as a list of use rights availing pairwise between all people in society, but actually creating such a list would be a potentially intractable problem in our world. On the other hand, exclusion is not the whole story either. Causes of action like trespass implement a right to exclude, but the right to exclude is not why we have property. Rather, the right to exclude is part of how property works. Rights to exclude are a means to an end, and the ends in property relate to people's interests in using things.

    . . . Exclusion is at the core of this architecture because it is a default, a convenient starting point. Exclusion is not the most important or “core” value because it is not a value at all. Thinking that exclusion is a value usually reflects the confusion of means and ends in property law: exclusion is a rough first cut—and only that—at serving the purposes of property. It is true that exclusion piggybacks on the everyday morality of “thou shalt not steal,” whereas governance reflects a more refined Golden-Rule, “do unto others” type of morality in more personal contexts. It may be the case that our morality itself is shaped to a certain extent by the ease with which it can be communicated and enforced in more impersonal settings. I leave that question for another day. But the point here is that the exclusion-governance architecture is compatible with a wide range of purposes for property. Some societies will move from exclusion to governance—that is, some systems of laws and norms will focus more on individuated uses of resources—more readily than others, and will do so for different reasons than others.

    At the base of the architectural approach is a distinction that the bundle theory—along with other theories—tends to obscure: the distinction between the interests we have in using things and the devices the law uses to protect those interests. Property serves purposes related to use by employing a variety of delineation strategies. Because delineation costs are greater than zero, which strategy one uses and when one uses it will be dictated in part by the costs of delineation—not just by the benefits that correspond to the use-based purposes of property. . . .

    The traditional definition of property is a right to a thing good against the world—it is an in rem right. The special in rem character of property forms the basis of an information-cost explanation of the numerus clausus and standardization in property. In rem rights are directed at a wide and indefinite audience of duty holders and other affected parties, who would incur high information costs in dealing with idiosyncratic property rights and would have to process more types of information than they would in the absence of the numerus clausus. Crucially, parties who might create such idiosyncratic property rights are not guaranteed to take such third-party processing costs into account. There is thus an information-cost externality, and the numerus clausus is one tool for addressing this externality. Other devices include title records and technological changes in communication. . . .

    Modularity plays a key role in making the standardization of property possible. First, modularity makes it possible to keep interconnections between packages of rights relatively few, thus allowing much of what goes on inside a package of property rights to be irrelevant to the outside world. Second, property rights “mesh” with neighboring property rights and show network effects with more far-flung property rights. The outside interfaces make this possible at reasonable cost. Third, the processes of property are simple enough that they can feed into themselves. Many modular structures are hierarchical in that they have modules composed of other modules. . . . In this respect, property forms are like a basic grammar or “pattern language” of property.

      Notes and Questions

      • Note that Hohfeld’s decomposition of in rem rights into a collection of in personam rights could provide a new interpretation of the “bundle of rights” metaphor. Rather than being a collection of different rights held by one person with respect to a thing (the right to exclude, possess, alienate, etc.), perhaps the “bundle” really is a reference to the various rights an owner has against the “large and indefinite class of people” with whom she might come into conflict with respect to the res. Does this distinction matter? Which sense of the metaphor do you think is being used in Jacque? Which do you think is being used by Merrill and Smith?
      • Recall the questions in Notes 1 and 2 on page 7 (following Jacque). They may lead us to another way of framing the distinction between the two interpretations of the “bundle” metaphor. Consider this: if I ask you: “Does A have a property right in Whiteacre,” how confident are you that you will be able to answer the question without knowing the answer to a different question: “A right against whom?”
      • Are you persuaded by Merrill’s and Smith’s critique of Hohfeld? Is their model of in rem rights compatible with Hohfeld’s analysis, or are the two necessarily inconsistent with each other?
      • Consider the following two propositions:
        • “Property” is a relationship between a person and a thing.
        • “Property” is a set of rights and obligations among people with respect to things.

      Do you think either of these propositions adequately describes what we mean by the word “property”? Do you think these two propositions are meaningfully different from one another? If so, what is the difference? Do you think the difference might have an effect on the outcome of legal disputes? If so, what effect? And if not, does the difference matter?

      • Are you persuaded by Merrill’s and Smith’s claim that treating property as an in rem right makes it more resistant to interference and degradation by the state? What feature(s) of their in rem conception might give rise to this resistance? If rejection of the in rem conception and weakening of private property rights have in fact gone hand in hand, which account do you find more plausible: that lawyers’ and scholars’ rejection of the in rem conception of property facilitated increased state interference with property rights, or that state interference with property rights rendered the in rem conception untenable? Put another way, do you understand Merrill and Smith to be making an argument about what property is (or was), or about what it should be? If the latter, do you agree? Why or why not?
      • Hohfeld observes that, when it comes to property rights, “thing” doesn’t necessarily mean “tangible thing in the physical world.” Indeed, legal authorities identify property rights in all sorts of intangible things, as well as in admittedly physical substances that resist the label of “thing”—like animals, or even human beings. We will discuss this complication of the notion of property as a legal right in “things” in our unit on the Subject Matter of Property.
      • 1

        In Marsh the Court vacated the conviction of a Jehovah’s Witness who had been convicted of criminal trespassing for distributing religious literature without permission on the privately-owned streets and sidewalks of the commercial district of a “company town”—a town built and maintained by a corporation as a place for its workers and their families to live and shop. Justice Black explained the Court’s reasoning as follows:

        “Ownership does not always mean absolute dominion. The more an owner, for his advantage, opens up his property for use by the public in general, the more do his rights become circumscribed by the statutory and constitutional rights of those who use it…. Whether a corporation or a municipality owns or possesses the town the public in either case has an identical interest in the functioning of the community in such manner that the channels of communication remain free.”

        326 U.S. at 506-07.

      • 2 The dissenting opinion suggests this case be decided under the general rule that an owner has exclusive control and the right to untrammeled use of real property. Although Maxims of this sort are attractive in their simplicity, standing alone they seldom suffice in a complex case. None of the cited cases pertains t[o] the qualified right of testatrix to impose, post mortem, a condition upon her executor requiring an unexplained destruction of estate property…. Each acknowledges the principle of an owner’s ‘free use’ as the starting point but all recognize competing interests of the community and other owners of great importance. Accordingly, the general principle of ‘free and untrammeled’ use is markedly narrowed, supporting in each case a result opposite that urged by the dissent in the case at bar.
      • 3

        [The study of property law was, for much of its history, mainly the study of land. As such, many teachers’ and judges’ hypotheticals required the identification of some fictional parcel of land. By tradition, these parcels take the name “Whiteacre,” “Blackacre,” “Greenacre,” and so on.—eds.]

      • 4 Reproduced by permission of Henry E. Smith.
      • 5

        Thomas W. Merrill & Henry E. Smith, Optimal Standardization in the Law of Property: The Numerus Clausus Principle, 110 YALE L.J. 1 (2000)…; Thomas W. Merrill & Henry E. Smith, The Property/Contract Interface, 101 COLUM. L. REV. 773 (2001)….

      • 6

        Walton H. Hamilton & Irene Till, Property, in 12 ENCYCLOPAEDIA OF THE SOCIAL SCIENCES 528, 528 (Edwin R.A. Seligman ed., 1934).

      • 7 Reproduced by permission of Henry E. Smith.
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