We are developing the social individualist meta-context for the future. From the very serious to the extremely frivolous... lets see what is on the mind of the Samizdata people.

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Town planning and views

My starting position is that anyone should be able to do anything he wants on land he owns, as long as it does not initiate violence against someone else.

From Brian’s post about a bridge, to a site called Dezeen, to an interview with the architect of a building in London called the Cheesegrater. One side of the building is slanted, which must reduce the total floor space, but why?

The main constraint on Leadenhall was the view to St Paul’s [Cathedral]. London is unique in being partly controlled by views; you have to leave certain views open to St Paul’s and we were on one of those views. So we made use of this and we cut it back at an angle and that gave us that prominent section and profile, [which can be seen] from all over London.

So London imposes planning rules that control views. This makes me wonder: can I own a view? In some sense if I am using the view I have homesteaded it. If my neighbour spoils my view by building something in front of it, he has made me less wealthy. Would I be right to sue him? Can we abolish planning without spoiling anyone’s views?

50 comments to Town planning and views

  • CharlieL

    Lawsuits for loss of view, either to block construction or to receive compensation are not unheard of on this side of the pond.

    Right now dune building in several towns along the New Jersey shore ravaged by the recent extra-tropical event “Sandy” is being delayed by lawsuits because one or two or three property owners will lose their ocean view from the first floor when the dunes are complete.

  • CharlieL

    Sorry about that last sentence.

  • RogerC

    On the one hand, noone wants to find that a new development will spoil their view. This and other similar appeals to people’s fears of unrestricted development are part of what maintain support for the present planning regulations.

    However, I find the notion that you can own something as ephemeral as a view to be ridiculous. We worry about such things here in the UK largely because we’ve paid over the odds for the properties we currently occupy.

    Planning laws serve to keep property prices high, by restricting the supply of building land. This in turn drives people to pay extra for the best spots, which for many people includes the vista, among other factors. People therefore seek to protect those vistas to defend the value of their investment. One way to do this is to use the planning laws to prevent other people’s development of their land.

    In essence, planning laws seem to create a positive feedback loop creating more support for planning laws.

    If anyone doubts that planning laws push up house prices, check out the difference in the average price of an acre of good, fertile arable land vs. the price of an acre of building land. There’s two whole orders of magnitude between the two. This can only indicate a massive oversupply of one or a dreadful shortage of the other.

    The alternative situation, abolishing planning laws and letting people do what they will with their land, creates cheaper housing by increasing supply (thus driving down the market rate for building land). This would be an excellent thing for first time buyers! However, the market is so leveraged at the moment that if the planning laws were abolished and the market freed up, the resulting correction would be immensely painful for many, if not most people.

    It’s a difficult one to solve. Given the choice you probably wouldn’t start from here…

  • I suppose the matter could be treated as an extension of the law of easements. On the other hand, I doubt that it can be applied evenhandedly. Just imagine a world where any property owner A whose property has a view of property owned by property owner B can restrain any third property owner X from building anything that blocks that view! Effectively this would make most new construction and many modifications illegal. So in practice it’s going to be applied narrowly to a few favored buildings, and that’s not so cool.

  • Natalie Solent (Essex)

    I believe you can. The view is an amenity. Impeding the view interferes with that amenity, and can reduce the value of a property. I grew up in a house with the most splendid views over Swansea Bay, from Neath and Port Talbot to the east to the Mumbles and Gower to the West, not to mention a vast sweep of the North Devon coast. I seem to remember a chap who lived opposite us trying to build a house in his large garden, which would have cut off our view. My father objected to his plan on grounds of loss of amenity, he was successful and planning permission was refused.
    Mike Solent ( Not Natalie!!_

  • In UK planning law there is no individual protection for a view – there is protection related to light and overshadowing (as loss of amenity) but not for that splendid view from your window over the park.

    In the case of London, there has long been a more general protection of viewlines. Not from the perspective of individual residents but from a desire to protect the skyline (which is seen as a significant asset).

    On the point about values, impacts on house values are common objections to planning. Sadly they are always invalid objections – it is loss of amenity (or access or some other property right) that is the planning consideration.

  • PeterT

    This is an interesting issue. Libertarian’s, I believe, tend to have quite a narrow view of ownership. We do not tend to consider it reasonable to put a claim on such things as views.

    Small ‘c’ Conservatives and others, by contrast, have a much wider concept of ownership. Things that they put a claim on includes such things as views, natural beauty, the land in some general sense.

    These ownership rights are overlapping; you can have a general right to the country’s natural beauty even though other individuals actually own the land in the legal sense.

    This attitude motivates their support for a host of policies, such as restrictions on building and other status quo bias policies such as a restrictive immigration policy.

    The public sphere, by which I mean those things, including views, to which no ownership claim should be made, under libertarianism is much larger than it is under conservatism. (This might jar somewhat with the common perception of libertarianism as a heartless philosophy.)

    All that said, I don’t find it unreasonable to object to developments that severely impacts the use value of your property to you, such as a sewage plant opening next door. I don’t know how you might frame this formally.

    Small ‘c’ conservatism has some attractive features but the sense of entitlement of many of its adherents is not one of them.

  • Ian Bennett

    What, then, constitutes your “amenity”, and how would the right to it be defined? Could your neighbour be obliged to prune a tree because it interfered with your view? If so, what about the third person who regarded that same tree as part of his “amenity”? More generally, what if your notion of your amenity conflicted with another person’s notion of his amenity? I suspect that it would ultimately be at the whim of the relevant planning department, which is pretty much where we are already.

  • Laird

    Ian Bennett has it about right: it’s pretty much at the whim of whoever has the power to impose his will.

    The opposite situation to the one here posed can occur, too. “Air rights”, which are essentially the right to build vertically on a plot of land, can be sold to protect the sight lines from neighboring buildings. To my mind this is a better solution than restrictive zoning, because it recognizes the economic value of the foregone vertical development, which is taken without compensation by zoning. “Scenic easements” (which protect vistas) also exist, and are sometimes donated to governments or charitable organizations for the tax benefits. Again, those tax benefits acknowledge that there is value in what is given up. Treating such things as “amenities” for the benefit of non-owners is simply another form of legalized theft.

  • John

    I find it difficult to tell, in the case of some previous commenters, whether they are speaking of what they believe *is* the case in various jurisdictions, or whether they speak of what they believe *should* be the case.

    For my part, I’m speaking of what I think *should* be the case. Which is: If you bought it (or built / made it etc.) you own it, if you didn’t you don’t.

    To compare what *is* with what *should be* and explore the ideas a bit…

    I don’t imagine for a moment that my standards of value in a “view shed” or other such amenity would (or should, initiation of force etc.) be imposed upon others at my request and so don’t believe that the standards of others should be imposed upon me. To a first approximation I value open space, forest, rivers, meadows, agricultural landscapes and find most urban and suburban landscapes ugly in the extreme, frequently to the point of being offensive. Should I then be able to insist that my standards be met through threat of force?

    Also, what about existing structures? This is not an academic question, near here “urban blight,” eminent domain, zoning, property maintenance codes, minimum housing standards, and property tax structures are being used routinely and ever more frequently to impose such standards on property owners retroactively. Does that mean I can look forward to being able to have these awful apartment buildings, convenience stores, strip malls, and “brutalist” government buildings razed? I rather doubt it.

    Very clearly the concept is used to take the matter out of the area of rule of law and into the court of power, influence, pull, interest, connections, etc. Rule of men rather than rule of law. No thanks.

  • Midwesterner

    Even by Samizdata standards, I hold a very hard core individual property rights position. I’ve thought about this problem a lot and reached some simple, property rights based conclusions.

    You cannot sell what you do not own.

    You own what you bought, not what you wish it to be.

    These two principles restrain both the developers’ intentions and the neighbors’ ability to restrain.

    You may have found the ideal locations for your 24/7 asphalt plant, smack in the middle of a community of single family homes, but by what authority can you be granted or denied the right to build it? Why shouldn’t you be allowed to have heavy trucks hauling smelly asphalt from a brightly lit and noisy mixing plant 24 hours a day in a neighborhood of (formerly) quiet family homes?

    There is no possibility of atomistic property rights. All property has impacts on abutting and neighboring property. When you bought the property, you bought the existing impacts of the nearby properties. You also bought the set of impacts your property has on nearby properties. To some extent this earliest principle of property rights has been codified under the general term of “grandfathering”. Basically, grandfathering is the tonic that is served when planning authorities run into resisters. It is an acknowledgement of the root of property rights not being something granted by the state, but something established through past consent of neighbors. Governments (just as they did with the creation of “criminal” law ie crimes against “the crown” or “the people”), want to usurp ancient practices of negotiation between individuals, and insert their own ambitions into the reconciliation process.

    There are only two ways to address changes in the impacts a property has on its neighbors. One of them is to beg, buy, swap or otherwise negotiate impact changes with neighboring property owners. A very common small scale form of this is ‘covenanted’ communities. They can legitimately regulate anything the covenant extends regulation to; the color of your house, the length of your lawn, cars in the driveway, etc.

    The other way is to extend authority to politically motivated persons to write and enforce rules over everybody else. This is, for the most part, our present system. Like all political processes, it is quickly captured by ethically challenged people with an agenda.

    So how to permit development when neighbors have to consent? First, to oppose a change in the external impacts of another property, neighbors have to demonstrate that they are in fact impacted. When the impact is a view, it can often be dealt with and the usage change still allowed. For example, cell phone towers have been camouflaged in the most creative ways. Walls of factories have been finished to look like houses on a street front. The impacted neighbor, while probably not totally satisfied by the modifications, will be far cheaper to buy off once he has an enforceable agreement that the modifications will be maintained.

    Fixing existing uses pending the consent of impacted neighbors protects obnoxious and unpopular (but existing) uses as well. For example, there is a very common problem in Wisconsin with livestock operations. Prior to sprawling semi-rural residential developments, farmers accepted the smell of each others hog, dairy, etc operations by mutual consent. Once developers started building residential communities next to farms, the “common sense” regulation was captured by democratic process and, even with protection of grandfathering, many farm operations became untenable.

    Anybody here who thinks they know what impact it is “reasonable” to compel a neighbor to accept, whether consciously or not, is advocating for a political process administered by either majoritarianism or ‘expert’ authorities to dictate what everybody can and cannot do.

    As a strong advocate for individual property rights, I reject that collective authority model. Each land use change should be negotiated between neighbors on a consensual basis with remuneration, favor swaps, conditions, etc as incentives to allow change.

    You can only sell what you have, not some imagined potential. You only own what you bought, not what you wish it to be.

  • WDO

    RogerC – If anyone doubts that planning laws push up house prices…

    I’d be a bit surprised if anyone doubted that; at least in my experience “improving property values” is the explicit justification for most planning laws.

    That “lowering housing costs” is also an explicit justification for other additional policies is just part of the insanity of the modern state apparatus.

  • Deep Lurker

    This looks to me like another case where the Coase Theorem applies: Provided that that transaction costs are low enough, it doesn’t really matter whether you (initially) have a property right to the view, or whether the other guy has a property right to block the view. The problem comes when the government is given authority over the view, and can allow it to be blocked even if the view is more valuable unblocked, or force it to remain unblocked even if blocking the view creates the greater value.

    (The Coase Theorem has been described as “the Killer Joke of political economics. That is, you can spot the people who understand it in fullness easily – because they turn into libertarians.”)

  • John

    @Midwesterner:

    It seems to me that you are implying that part of what someone buys is a claim on those around them to continue in certain behaviours and to provide certain positive (?debatable&subjective) externalities. Somehow that by “letting one” buy the property next door someone is granting a claim on his future behaviour?

    If that’s not what you’re saying, please clarify.

    If it is what you’re saying, I disagree whole heartedly.

    In terms of your two main statements:

    “You can only sell what you have, not some imagined potential. You only own what you bought, not what you wish it to be.”

    I couldn’t agree more, but perhaps disagree over this idea that part of what you bought is a claim on the actions and properties of others.

    If neighbors want the right to give consent to the usage of property, they should buy it. I suggest the addition of “you can only control what you bought.”

    In your example regarding farms, are you suggesting that I should, indeed, be able to control the construction of aesthetically repugnant tract houses, strip malls, McMansions, etc. on my neighbors corn fields, pastures, and forests? Could I, in this paradigm and by law, not by covenant, sell off everything but the half acre around the house but continue to dictate the use of the acreage? (Covenant is a different issue, since it does indeed fall under your “what you bought”, which is to say you explicitly didn’t buy the right to change usage.)

    Would I be able to say both, “you bought a farm, so you can’t sell land for a subdivision” and also “you bought a farm, with one house so you may not build a second one”. Are you merely arguing for a “freeze” on land usage and “zoning”?

  • Mr Ed

    If I have a ‘right to a view’, (easements apart), what if ugly people move in next door?

  • Midwesterner

    If neighbors want the right to give consent to the usage of property, they should buy it. I suggest the addition of “you can only control what you bought.”

    We agree. So you want to build that asphalt plant and use my property to dissipate your noise, light and smell, you should pay me for it.

    Would I be able to say both, “you bought a farm, so you can’t sell land for a subdivision” and also “you bought a farm, with one house so you may not build a second one”. Are you merely arguing for a “freeze” on land usage and “zoning”?

    Huh? I was pretty clear. You bought an existing set of impacts on neighboring properties. If you want to change them, get their consent. They bought an existing set of impacts on your property. If they want to change them, they need your consent. All property has interactive impacts on neighboring property. There is no setting in which this isn’t the case. These impacts are always present and changing them has consequences on other properties.

    You appear to believe that property exists in atomistic capsules, free from interaction with other property. Instead of presuming that to be the case, why don’t you demonstrate how it is that you either cannot physically harm the value of my property through your actions, or are entitled to harm the value of my property through your actions.

    Your changes have the power to stop me from using my property and by that act, taking from me the peaceful use and the exchange value of my property. If my quaint hotel higher up the hill from yours has a beautiful view of the waterfall and that view assures my profitability, then you raising the height of your hotel high enough to block that view and take my customers is clearly a financial impact on me. You have taken from me the continued use of my property. Either pay my terms or return it.

  • Midwesterner

    Mr. Ed. I don’t recall saying you have a “right to a view”. If so, you should sue the previous occupants for leaving. Good luck with that. :-)

    More seriously, you would need to prove that the aesthetic features of the occupants have historically been a matter of consent or are covenanted among neighboring property owners. This is in fact a very real matter in the form of “white-only”, etc neighborhoods. Yes, I believe bigots have a right to live in their enclaves (provided that they are either covenanted or consensually formed) just as I have a right to shun, boycott and advocate against any form of association with said bigots. May they rot in their pure isolation.

  • Stephen Willmer

    Some of the most thrilling scenes, IMO, of recent years have been those of cruise liners sailing into the lagoon past S. Giorgio Maggiore. And dwarfing if. Yet neither the church nor its once supremely high campanile are one whit diminished by thirty storeys of 21st century shipping. I’m pretty sure St Paul’s can cope with whatever skyscraper is plonked next to it, and may even be enhanced by the experience.

  • Alsadius

    It’s questions like this that led me to abandon hard-line libertarianism. There’s just no good answers, and the “non-governmental” answers seem to involve even more government than the alternatives.

  • Laird

    Midwesterner, I agree with you only partially. Obviously, if you choose to buy or build a house next door to my tannery you have implicitly accepted the odors that come with it and have no basis for complaint about them. In essence, the price you paid reflected the noxious odors, so you have already been fully compensated for putting up with them. On the other hand, if my nice, pleasant apple orchard has been coexisting peacefully with your subdivision for years, but I decide to change it into a hog farm, that would be a change in usage which directly affects your property and its value, for which you should be compensated. I suspect that we are in agreement there.

    Where we disagree is your hotel scenario. Just because you have been enjoying a view over my property doesn’t (shouldn’t, anyway) give you any right to, or expectation of, continued enjoyment of that view. I own the land and can build as high on it as I like. The difference is that my hog farm trespasses on your property (via its odors), whereas my blockage of your view does not. So I don’t buy your “set of impacts” argument, only those impacts which constitute the ancient common law doctrine of trespass.

  • Midwesterner

    Hhmmm… Particles that arrive in molecular form are granted consideration but particulars that arrive in photon form are exempted. I don’t think you have found any distinguishing principle, Laird.

    I got a mortgage, bought and established a hotel with an established revenue stream. You found a way to force me out of business and take it for yourself by creating a previously non-existent visual barrier. There is not the slightest doubt that you took substantial value away from me. Your visual barrier is as much an impediment to my business activity as if I bought a small parcel just across the street from yours and shone pulsating strobe lights at your guests windows to interfere with their views of the waterfall.

    The difference is that my hog farm trespasses on your property (via its odors), whereas my blockage of your view does not.

    At no time did I do anything other than alter the photons arriving on your property.

  • John

    Perhaps there is something useful in the distinctions between action and inaction and between positive and negative externalities.

    Also, what about the differences in differing aesthetic evaluations of the same thing? Could one be compelled to erect or maintain a structure which blocks the view of that awful water fall?

  • Midwesterner

    John, in an active interface “action” and “inaction” are arbitrarily relative. Is trimming trees (or not trimming them) “action” or “inaction”? To a dam owner, is opening (or closing) the sluice “action” or “inaction”? And in any situation at all, “positive” and “negative” are relative to the observer. Either majoritarianism, dictates by ‘experts’, or prior state/practice make the call. IMO, using prior state/practice is the path of least opportunity for corrupt insider manipulations.

    Also, what about the differences in differing aesthetic evaluations of the same thing? Could one be compelled to erect or maintain a structure which blocks the view of that awful water fall?

    One need not worry about it. Market forces will determine its merits to the people willing to take a financial stake in the decision.

  • Steven R

    If the view is that important to me, what is stopping me from buying the adjacent plots to protect said view?

    But let’s assume that your actions wrecking my view are something to sue over. Where is the cut off point? If your house burns down, can I add insult to injury because I now have to look at smoldering cinders for a while? If there’s an earthquake and that lovely hillside becomes a mudslide, can I sue or is that just if there is an action (or lack thereof) on you part, such as not putting in a retaining wall. How about if your plot of land has some spectacular trees that I admire daily and you sell to a forester for timber. Is that something I can sue over? The color you paint your house or the flowers you plant?

  • Midwesterner

    It is useful you used the burned down house example. A mile or two from where I live, a house in a closely built residential area burned down. The (uninsured) owner did not rebuild and would not clean it up (it was months or even a year or more). The neighbors, after a reasonable amount of time, escalated their insistence that the mess be cleaned up. IIRC, eventually the local government put out for a low bid for it to be cleaned up and the bill would be attached to his property taxes. I forget whether he let them or decided to act for himself. Only the affected neighbors complained. He was taking value from their property by not following traditional practice for a closely built residential neighborhood. The price of living in a nice neighborhood is reciprocity.

    Ideally these things would be contractually established (I support voluntarily entered privately administered zoning contracts like covenants), but in the absence of written contracts, looking at prior use and practice can give a clear guide to what the boundaries between a property and its neighbors has traditionally been. *

    A few miles away, an abandoned farmhouse burned down. Nobody complained, the site was left as is. These two cases were each handled correctly, IMO. This is much how common law was founded, by neighbors working out the terms of their proximity.

    Regarding the cutting of trees, painting of houses, etc. What has the historical practice been? I live in a state that is probably the number one paper producer in the country. Clear cutting tree plantations is a long established practice here. In most covenanted communities, plantings and house colors are regulated. But in the vast majority of the country, freedom to choose your house color and cut or plant trees and shrubs is an assumed pre-existing right of occupancy. If somebody wanted to oppose a tree cutting, then they need to demonstrate either a prior contract/covenant regarding tree cutting or a pre-existing practice of getting neighbors’ consent.

    * It helps to realize we are not talking about “cross boundary disputes”. We are talking about what the boundaries are. Boundaries between both individual human beings and hunks of real estate are all the result of arbitrary terms either imposed or negotiated between parties/parcels.

    In the event of hurricanes, tornadoes, earthquakes, etc, prior practice in most of the US is to, at least in commercial and residential areas, require basic cleanup but to neither require nor prohibit reconstruction. Of course, authoritarians “never let an opportunity go to waste” and a strong guard should be posted against these predators.

    There is a strong component among libertarians who believe that land exists at the bottom of an infinite chimney with infinite rights within the chimney. I’m not sure how this perception came to be but it is at best a mistake and is a large part of libertarians’ credibility problem.

  • I am finding Midwesterner’s arguments compelling. Considering the impacts on neighbours as part of the land sounds reasonable; considering arriving photons, molecules, and vibrations of your neighbour’s molecules as impacts makes sense and is consistent. The approach seems compatible with anarcho-capitalism and minarchism. Arbitrating disputes seems easy so it is even practical. And I can even imagine convincing non-libertarians.

    There’s a lot to like here.

  • nemesis

    Of course, there is always a way to get your own back on the planners.
    http://www.telegraph.co.uk/news/uknews/1448015/Liquorice-Allsort-spoils-Ruskins-View.html

  • John

    Midwesterner: Thanks for some clarification, I’m still a little uncertain of some of your points but I think:

    “using prior state/practice is the path of least opportunity for corrupt insider manipulations.”

    is the heart of it and uses that word “least” which, I think, acknowledges that there is not a perfect solution. You also use the word “reciprocity”.

    I think, in terms of my earlier questions, then, that you would say that yes, I could indeed prevent subdivisions, strip malls, and mcmansions, since they don’t yet exist, they aren’t part of prior practice. In exchange, I’d be forbidden from changing the uses to which my property is put at present, building another house, a new barn, changing the orchard to a pasture, etc.

    In part because I don’t believe in the good faith of those around me, in particular those able and willing to use state power to get their way, I’d happily abandon my half — my recourse to law, in exchange for them abandoning theirs. In other words, I’d be happy to forgo recourse if they would.

    Which gives us three possibilities: Both have recourse, neither has recourse, or they have recourse and I don’t. I *think* you’re arguing for the first, I’m arguing for the second, and the third is present common practice.

    I’m not arguing for atomistic property rights or that there is no impact on others, nor that one has a right to harm another’s property. Rather, that it is safer to accept those issues as least harm in exchange for the reciprocity. In giving up my ability to restrict the freedom of others I gain, or intend to gain, freedom for myself. In total I think that the entire system/country experiences a net gain of liberty. I don’t claim there is no cost, only that there is a profit.

    I am convinced that most of these issues originate with people who want to make a claim to something they didn’t buy and want to use the power of the state to enforce that claim. In the absence of a perfect solution I’m willing to abandon the few legitimate claims rather than give in to the large majority of illegitimate ones.

    On the whole, though, I’d take your version as second choice and far superior to the present version.

  • John

    Gosh, would the “arriving photons” thing give me some legal grounds for going after the jerks with spotlights who keep shining them around my place in the middle of the night? I’d *almost* have to take that up. Somehow I suspect my complaint would fall on deaf ears… It’s that reciprocity thing again.

  • Lee Moore

    I’m not at all comfortable with the general principle that one’s property right should be limited “Considering the impacts on neighbours as part of the land.” That’s the sort of principle that sucks the reality out of any item of property. Me driving my Ferrari at 3mpg may send Mr Gore into a fit of greeny rage. But whence would he acquire a right to stop me buying Ferraris ? And as for land, part of my amenity is being able to watch Mrs Jones sunbathing from my upstairs window – can I prevent her from moving house ? Impact schimpact.

    I’m generally in agreement with Midwesterner as a matter of theory, but…

    1. I start with the same principle for land as for any other item of property, ie the infinite chimney – it’s 100% yours
    2. and then ask what limitation in the infinite chimney there is, based on pre-existing contracts, covenants etc (including custom)
    3. and then I ask who owns the rights in these limitations

    It seems to me that most of the difficulties arise from the fact that 2 and 3 are, in practice, imprecisely defined. And, which is related, from the fact that precisely defining them is a major, aka impossible, undertaking. In theory, if my asphalt factory has 63 residential neighbours, eleven of whom have bought “do not operate between 7pm and 7am” restrictive covenants off me, then everybody knows what I have to do to get that restriction lifted. I have to buy out the eleven, and the other 52 can lump it (unless one of them outbids me in buying back the covenants.) Likewise if Mrs Jones has been duly paid by me to sunbathe nude every Sunday afternoon between 1 July and 30 September (if it’s sunny) in plain sight of my upstairs window, then if she fails to do so, I should get damages. But what if I want to change my asphalt factory into a brickmaking one ? And what if Mrs Jones wishes to substitute her teenage daughter ?

    I can’t see that it is possible ever to define these things precisely enough to cover all the things that one might want to do with or on one’s land. I’m all for defining such things as can reasonably be defined, but the task of definition is so laborious that one cannot possibly do without sets of “implied covenants” in the form of, sorry folks, politically generated laws governing the use of property. One can prate about the common law and custom, of course, but in reality there’s a limit to how far one can go with that before it just becomes politically generated laws governing the use of property, made up retrospectively by judges.

  • Lee Moore

    I meant to add that once an asset becomes encumbered by many legal chains, its usefulness falls – ie common land even if established as such by contract and covenant – is less useful than privately held land. So the presumption in establishing implied covenants should be minimalist.

    The one iron law of business is that joint ventures don’t work. Too many cooks.

  • Laird

    “Particles that arrive in molecular form are granted consideration but particulars [sic] that arrive in photon form are exempted. I don’t think you have found any distinguishing principle, Laird.”

    Au contraire, Mid. The distinguishing principle is that in the case of my hog-rendering plant I am the source of those offending particles; in the case of an obstructed view I am not. But if I were the source of photons impinging on your property (such as if I were shining bright spotlights around all night) that would be an instance of trespass and actionable. I still believe that the common law tort of trespass handles these situations quite adequately.

  • Lee Moore: “and then ask what limitation in the infinite chimney there is”. Isn’t this about things that exit your chimney, or don’t?

    Laird: “in the case of my hog-rendering plant I am the source of those offending particles; in the case of an obstructed view I am not”. Neither is the person damming the stream the source of the water.

  • Fred Z

    This concept of “obstructed view” is interesting. Say rather “changed view”.

    The comments here, while interesting failed to consider the long history of covenants running with the land. Such covenants were how neighboring landowners used to plan for the futures of their lands.

    Amazingly, they did it on their own without planners to assist them.

  • Nick (nice-guy) Gray

    The infinite chimney means how high up do your rights go? After all, there are lots of laws about the air zones that planes can fly in- i guess the governments of our countries wouldn’t like it if we really did try to build a chimney a few miles high!
    And, here in Australia, the states reserve mineral rights to themselves. you can’t just build a mine in your property, no matter how valuable the minerals!
    Re- Midwesterner.
    I support private property. I also believe there is a place for public property, and that local governments should make rules that only affect local public properties (such as roads, the town hall, public libraries, etc. And the space above these properties.) So the local community should be able to decide what goes on their roads.
    Also, many of our facilities are large because they are government monopolies- if houses took care of their own sewerage, by recycling or selling it to farmers, then no view problems would arise.

  • Peter

    It sounds like people are defending the right to maintain value as a principle rather than the principle of defending themselves from aggression (pollution) and so demand restitution or halting the agression.

    Defending value, shall we also defend market share or profitability? Value is not objective. Some one may loose what they perceive as their amenity from others actions but find that land values have increased? What are they claiming a right to, amenity or value. Which one trumps.

    Pollution, negative externalities, damning or rivers etc are the areas of libertarianism theory I have yet to find any satisfactory discussions on (any recommendations on a reading list would be appreciated). The least worst responses to this area I have read discuss voluntary action repsulting from cultural pressure and norms and using common law and tradition as the source of dispute resolution, but still not ideal.

    This sounds almost like contra Georgism. You have the right not loose amenity/ value due to your perception of others and their behaviour and so must be compensated if it occurs, where’s the Georgist seem to want you to compensate everyone else if you others perceive that you are benefitting from a third parties actions.

    I understand that the line from pollution and obvious infringements of property rights does in real life become blurry.

  • Paul Marks

    Private convenants and Common Law would do a better job than Planning Law – if they were allowed to.

    I do not think it is accident that British towns and cities were messed up AFTER the passing of the Town and Country Planning Act.

  • Midwesterner

    Au contraire, Mid. The distinguishing principle is that in the case of my hog-rendering plant I am the source of those offending particles; in the case of an obstructed view I am not. But if I were the source of photons impinging on your property (such as if I were shining bright spotlights around all night) that would be an instance of trespass and actionable. I still believe that the common law tort of trespass handles these situations quite adequately.

    Utterly arbitrary. To demonstrate the complete artificiality of the chimney concept, Iowa cropland. I grow corn, to the south of me is a large hog farm. It impinges my property only by smell and noise, which neither the corn nor I care about. Then, you buy it and replace the hog sheds with tall buildings that block the sun to my corn. At the very least, my “chimney” should point at the sun. Why should property chimneys point vertically instead of all pointing at the sun? Hasn’t each landowner purchased an equal share of sunlight? An equally strong case can be made that the sixth side of the property box should be aligned on the sun. It is afterall, a lot easier to make buildings follow the track of the sun than it is to move farmland out of your shadow.

    Further, back to the hotel example, you are a source of photons arriving on my property. How could you possibly not be!?!? I can only assume you are quantifying the photons and some how concluding that your building addition reduces rather than increases the number of photons arriving on my property. In other words, you appear to be making the case that if you paint your addition white, and you are thus the source of a greater number of photons arriving on my property, you are trespassing. But if you paint your addition black, you will not be trespassing because you are subtracting from the number of photons arriving on my property.

  • Midwesterner

    This debate is not actually about the degree of property rights. This debate is about the process for determining the boundaries. Virtually everyone in this thread and elsewhere who holds an absolutist (chimney) view of property rights is claiming the unilateral authority to define and declare the border between property. As someone who has farmed in the past, I can assure you that if you gave a farmer the choice between the chimney division of property, in which he looses his light to the buildings you put up, and a model in which you could release the smells of a pig fattening operation but not interfere with light, the farmer would instantly choose the light and smell version over the no-light and no-smell version. And if you lived in a nation of farmers who democratically set boundary rules at a national level, you would be compelled to endure smells and not cast shadows.

    An absolute definition and declaration of property rights is nothing more than a unilateral imposition of will. Boundaries between property or even human beings themselves, can only be established in one of two ways; force or consent.

    The way of consent is for neighbors impacted by each others’ activities to respect their neighbors properties and negotiate each change in impacts. The only other ways, by majoritarianism or dictates by experts, are unalterably authoritarian.

  • Laird

    Mid, my argument is no more arbitrary than yours. And in the motel example I am most emphatically not the source of any photons arriving at your property (unless I erect large lights). With respect to the scenic vista you covet, I am merely interdicting those photons, not emitting them. And as to any other ambient light, at most I am reflecting photons originating elsewhere, not emitting them myself.

    I do agree with you that negotiated arrangements between neighbors is the best solution. Unfortunately, it’s not always feasible. When interests collide, and are irreconcilable, there must be some mechanism for resolving the issue. In the end that will be unavoidably “authoritarian”. Your method is no less so than is mine.

  • Midwesterner

    And as to any other ambient light, at most I am reflecting photons originating elsewhere, not emitting them myself.

    Okay, now I understand the principle.

    You had to see that coming. :-)

  • Midwesterner

    When interests collide, and are irreconcilable, there must be some mechanism for resolving the issue. In the end that will be unavoidably “authoritarian”. Your method is no less so than is mine.

    No. There is no way that a locally reached decision by the group of people impacted by a change of use is more authoritarian than a preconceived one-size-fits-all imposed solution.

    There are still some vestiges of this system where I live. When somebody wanted to change their usage of a piece of land, they were required to announce it formally (the town clerk sent out announcements of the proposed change to all landowners within a certain distance of the property to be changed) and after 30 or more days, the matter was brought up at the local meeting and neighbors opinions are solicited. The town board then attempted to negotiate terms acceptable to both the changer and the impacted neighbors. I’ve observed many of these in action and they weren’t perfect but they worked surprisingly well.

    However, now the state has gotten involved in land use and is mandating top down uniform standards and practices. It is creating just the mess you might expect. The unavoidable truth is that every boundary is unique. The closer the decision process can be confined to those affected by a change, the more protective of individual property rights the decision will be.

  • Nick (nice-guy) Gray

    Yes, Alisa, truely disappointing! We also do similar things here in Australia. At least the Roswellians have the excuse that they need lots of grounds for aliens to land in!

  • Paul Marks

    I repeat…..

    Private convenants and Common Law can deal with the problems.

    As long as someone knows BEFORE he or she buys a property what the agreed rules are – then things are well enough.

    It is, in fact, Planning Law (what Americans call “Zoning”) that gives rise to arbitrariness.

    This is not to say that local conditions may not influence the development of law.

    For example, there was never any problem in Irish law over the private ownership of rivers “oh this is your river – sorry, I will put my boat in the river a few feet over there” (there are always plenty of rivers and so on to choose from).

    In Roman law the fear was that if it was allowed that “this is my river – no boats from you” then people would not be able to transport stuff at all (there being few rivers in such hot lands).

    However, one can still say the Roman view was WRONG – for it there are no private limits AT ALL (for example) on fishing, then things will go badly ESPECIALLY in lands where there are few rivers.

    Also such law over water has perverse results.

    For example, the idea that one can not claim a lake for private use if it has a river that is used for transport going into or out of it (and what major lake has not?) then people may be led to create artificial lakes (to get round this problem) and the dams that create these artificial lakes may BURST……..

    Hence the famous American case.

    If people were allowed to buy (and exclusively use) lakes (even ones with rivers going into or out of them) then it is unlikely they would go to the great expense of building their own artificial lakes.

    Still as long as one knows the rules in advance…..

    No buying fishing rights – only to find out (after the fact) that the law is Roman (and does not recognise “fishing rights”).

  • Nick, the government drove a man to suicide – I don’t find anything amusing in that. And, it’s a different Roswell. Grow up?

  • Paul Marks

    Alisa – it is possible Nick (nice guy) did not click on the link – I often forget to click on links.

    Yes this man was driven to his death, but the tracks were covered nicely (old sense of the word “nice”).

    The council can even deny that it used eminent domain – because (technically) it did not.

    It pushed an old women to sell the land “voluntarily” – and then pushed the tenant into killing himself.

    A neat job.

    As Perry says “the state is not your friend”.

  • Nick (nice-guy) Gray

    My wrong, Alisa, I just skimmed the article quickly. The name made me think of the other Roswell. But we still do have similar laws and local government powers here in Australia- I don’t think anyone’s killed themselves over their land, yet.

  • Julie near Chicago

    Alisa, it seems perverse to say “thank you” for that link, if you see what I mean. But thank you just the same. It is filthy and disgusting what they did.

    Nasty-spirited people. Bullies besides. If I’d been George I’d have blown THEM up, not myself, and then done the time. (At least, I wish that’s how I’d behave.)

    Also: Somewhere on the Net there is a map that shows which U.S. communities have signed on to the Agenda 21 plan under its U.S. alias, or nom de guerre. “Sustainable development,” blah blah blah–remember those “Rural enhancement committees” or whatever they were that the Sith set up a couple of years ago? I wouldn’t be surprised if Roswell is one of those communities.

    And one of the commenters at the site points out that the communities get publicity (hence, I note, so do their PTB) and “federal” grants and whatnot for having so many parks and other amenities per acre or per person.

  • Unfortunately Nick, I imagine it’s only a matter of time until something like that happens over there as well.

    Julie, I’m not so sure myself about them being nasty types or bullies. I rather imagine them being ordinary folks doing their job the way it is expected of them by The System. Just following orders, as it were.