Homesteading, Abandonment, and Unowned Land in the Civil Law
As you may recall, I’m a libertarian and intensely interested in various normative theories regarding property rights, including justifications thereof, Lockean-type homesteading theories, and Austrian economics as related thereto. I have found your own formulations in this regard (e.g. in sec. 1 of your Property treatise)–e.g., your discussion of the nature of property, including its scarcity–to be exquisite and to highlight the essential compatibility of the basic notions of civilian property with the Lockean-libertarian conception thereof, despite the legal positivism and deviations of the civilian system.
I was perusing the Civil Code and your Property treatise recently, and studying in particular issues such as how the code deals with abandonment, acquisitive prescription, petitory actions, and so on. I was struck that I could find nothing about unowned immovable property or acquisition of ownership of same by acts of homesteading. I suppose I had never noticed this before. Were I borrowing from the Civil Code to hammer out a more libertarian-compatible code of a stateless libertarian society, such provisions would have to be added. The code would have to specify that if an immovable is abandoned, it becomes unowned once again (unless possessed by another). And it would specify that someone may acquire ownership of or appropriate an unowned parcel by appropriate acts of homesteading–transforming it, putting up a fence, etc.
But as far as I can tell none of this is contemplated, at least not directly, in the current civil law. In my beginning couple years as a lawyer, 1992-94, I practiced oil & gas law and title opinion type work, before shifting to patent law, and perhaps I’ve forgotten the justification for this, but from what I recall, to prove perfect title you trace it back to a previous owner, all the way back to the sovereign… as contrasted with what you would do in Lockean utopia where you would trace an unbroken chain of title back to some natural person’s act of homesteading of the land in its unowned state.
The code seems not to contemplate even the possibility of unowned land. It seems to presuppose, in legal positivistic fashion, that all title can be traced back to the state; and it seems to leave no room for abandonment of title to immovables–otherwise there would need to be some homesteading provision. It seems to me that acquisitive prescription cannot really be used as a substitute for homesteading, since homesteading need not satisfy the longer time periods and other requirements of acquisitive prescription.
I could be that my practical knowledge is rusty and I am missing something obvious here, but I wonder why it is not an obvious glaring omission that there are no homesteading and related provisions in the code regarding unowned immovables?
I would greatly appreciate any thoughts you might have on this, or pointers as to any further material I could peruse for enlightenment.
see my comment here, from years ago (1994 or so)–and see my heroic use of scare quotes even back then:
Yancey– you are right, the state does own our property. I have noted this before in this law review article (endnote 59 or 60),
It is interesting to note one (only apparent, as will be seen below) theoretical difference between the civilian and common law conception of real property ownership, concerning the right of the sovereign (king or state) to ultimate ownership of land. In Louisiana, “Ownership is the right that confers on a person direct, immediate, and exclusive authority over a thing. The owner of a thing may use, enjoy, and dispose of it within the limits and under the conditions established by law.” CC 477. Lands in the thirteen original American colonies were held in tenure, however, with the king as the ultimate lord and owner of the land. CORNELIUS J. MOYNIHAN, INTRODUCTION TO THE LAW OF REAL PROPERTY, 7-8, 22 (2d ed. 1988); see also ROGER A. CUNNINGHAM, WILLIAM B. STOEBUCK, AND DALE A. WHITMAN, THE LAW OF PROPERTY, Chapter 1 (West 1984). “The American Revolution clearly ended any tenurial relationship between the English king and American landholders. Some of the original thirteen states adopted the view that the state had succeeded to the position of the English king as ‘lord’ and that tenure continued to exist, while other states enacted statutes or constitutional provisions declaring that land ownership should thenceforth be ‘allodial,’ or otherwise declaring that tenure was abolished.” Cunningham, et al., at 25 (footnotes omitted). However, “In the remaining states it would seem that lands are still held in tenure of the state as overlord.” Moynihan, at 23. “Throughout the rest of the United States, it seems clear that tenure never existed.” Cunningham, et al., at 25 (footnote omitted).
However, despite this theoretical difference between civilian and common law ownership, at least in some states such as Pennsylvania and South Carolina, Moynihan, at 23, “Even in the states where tenure may theoretically still exist between the state and one who owns land in fee simple, tenure would appear to have little or no practical significance. For all practical purposes, one who owns land in fee simple anywhere in the United States has ‘complete property’ in (full ownership of) the land.” Cunningham, et al., at 25 (footnotes omitted).
It must be pointed out that, in reality, in none of the 50 United States do nominal “landowners” really have “complete property” in “full ownership of” “their” land. To say that land is owned “allodially” is a fiction. For land is subject to expropriation by way of eminent domain. See, e.g., La. Civil Code 2626 [now La. R.S. 9:3176]:
The first law of society being that the general interest shall be preferred to that of individuals, every individual who possesses under the protection of the laws, any particular property, is tacitly subjected to the obligation of yielding it to the community, wherever it becomes necessary for the general use.
Article 2627 [now La. R.S. 9:3177] further provides:
If the owner of a thing necessary for the general use, refuses to yield it, or demands an exorbitant price, he may be divested of the property by the authority of law.
Furthermore, it cannot truly be said that one “owns” property which is subject to divestment if annual “rents” (i.e., property taxes) must be paid to the sovereign for the privilege of retaining possession of one’s property. Tenure, then, exists after all, in all fifty states, and the theoretical difference pointed to above is not really a difference at all.
Published: June 23, 2005 1:16 PM