First, David Koch (the Koch brothers’ other brother) has asked the government for a land swap that would grant him some lands that are currently public. The swap would apparently take a corridor of land that has been used as a path into the mountains for more than a hundred years, making the land the path lies along into private property. Some locals are trying to have the swap blocked. I’m not a lawyer, but I would have thought that rights-of-way would have some influence in this case. Yet these aren’t mentioned in the Times story. Maybe things haven’t gotten to that stage yet. The controversy seems to revolve solely over ownership.
The second case, on the other hand, in Falmouth, Massachusetts, on Cape Cod, appears to involve deeded rights of access to the beach. Some neighbors whose land is attached to such rights have built walls that block access for the others. (In one case, according to the Globe’s reporting, a new deed appears to have been filed that includes more access to the beach than the seller had the right to transfer.) People who bought beach houses believed they had acquired, with those houses, rights of access to a particular shared section of the beach. These rights were enumerated in their deeds. Now, a few of the people who bought houses in the same area seem to have decided they should be able to build on, and to block off from their neighbors as if it were individually owned private property, the part of the beach that was next to their own land.
From a Really, Really Big Picture point of view, this case might seem to be very similar to the various historical enclosures of various commons, mostly in England. These took land which all people had a right to use in common, for instance to graze livestock, fenced it, and made it private property. This process represented an enormous change in the way the economy of England (and the whole of the West) would end up operating. I suppose it’s arguable that there was no stopping it. So, from this Really, Really Big Picture point of view, perhaps the Falmouth case is the same. A rich person took some land that used to be held in common by a group of people, and now it belongs to the rich person: that’s the end of that.
On the other hand, it doesn’t seem quite legal. The neighbors, presumably, wouldn’t themselves own Falmouth beach houses unless they were also fairly well off (and judging from what the Globe has reported happening so far, they seem to have the resources to fight this thing). They’re not exactly peasants, with no written-down property rights and no formal connection to the government, who by virtue of the solely oral nature of their connection to society can have taken away what little they’re—temporarily, an opponent might argue—currently making use of. It might be difficult for farmers in Colorado, for example, to see themselves making common cause with a bunch of people who are trying to regain beach rights (and I don’t know whether they are also fighting for public rights, such as between the lines of low and high tide, if those were traditionally granted in the area in question either). But it seems to me that the issues are the same.
At Crooked Timber, Chris Bertram has written a couple of times about John Rawls’ idea of a property-owning democracy. Obviously, a property-owning democracy only works if each property owner can defend his own rights against encroachment by their fellow members of the society. If the society operates under the rule of law, in other words. A few years ago, a discussion at the same blog of a book by Steven Teles, called The Rise of the Conservative Legal Movement, was eye-opening, for me, about the difference between what I supposed was the openness of the law to use by ordinary people, and what is now the case. This seems to be relevant too.
Also relevant is the status of the common law. Somehow—probably largely from watching The Paper Chase—I’d gotten the idea that the common law was very important in the United States. But checking more recently, for example, in reference books, I read lots of things that suggested I’d been under a misapprehension. And regardless of the status of the common law in, for example, federal law, I don’t know how Colorado ranchers would view it. Is the common law, for them, a bulwark against the tyranny of government? Or, is it “federal” interference with their local rights?