guaranteed that farmer essentially the same rights 

 available to a pre-war colonist. To this day, our 

 interpretation of private real property rights, based on 

 English common law, is little changed. 



The one essential difference between property law 

 in England 200 years ago and the American Colonists' 

 application of the laws was that a colonist was not 

 bound by primogeniture, a hold-over rule from feudal 

 law that restricted transfers of ownership. Under the 

 concept of primogeniture, the entire real estate of an 

 English landlord passed to only one heir: his first-born 

 son, or to the closest consanguine male (father, 

 brother, uncle, cousin, and so on). It was not 

 uncommon for an eldest daughter to see her father's 

 lands inherited by a late-bom, five -year-old brother; or 

 if her father never sired any sons, the land might go to 

 her uncle. If the uncle predeceased her father, the 

 estate might end up in the hands of a male cousin. 



Primogeniture evolved in feudal times as a way for 

 the King's lands to pass within families of nobility, but 

 since the King was under no obligation to share his 

 interests, the lords had no rights to divide the estates 

 entrusted to them. The concept survived evolution 

 from feudal law, because it prevented fragmentation of 

 productive lands and also maintained a relatively easy 

 method of gathering taxes. It did not survive in the 

 American colonies, because the emigrants to the new 

 world were mostly families of expatriates-children 

 forced to leave their homelands because only one of 

 their ranks could inherit the family wealth. Given the 

 circumstances, it is unsurprising that primogeniture 

 was left behind and the colonists embraced the rights 

 to transfer ownership to whomever the current owner 

 wished. 



Real property differs from other personal property 

 in the sense that it is immobile, so the acquisition of 

 land is really the acquisition of rights. The sum of 

 these rights today, also known as the "bundle of 

 rights," define a person's interests in land. These 

 include the following: the rights of use, occupancy, 

 cultivation, and exploration; the rights to minerals 

 (including the right to extract them); the rights to sell 

 or assign interests in land (such as in the case of selling 

 timber); the rights to license or lease; the rights to 

 develop, to devise, and inherit; the rights to dedicate, 

 give away, and share; the rights to mortgage and 

 exercise a lien; and the rights to trade or exchange land . 

 Notwithstanding this list of rights, our interpretation 

 of the bundle of rights is intended to be inclusive. That 



is to say, even rights that are not specifically described, 

 such as the right to pick berries, is implicit. However- 

 and this is a key point, the very substance of the debate 

 about private real property rights-the exercise of the 

 bundle of rights is subject to limitations the state may 

 impose for the sake ofprotecting the public's interests. 

 Private property rights are not absolute, hi the U.S., 

 public authorities have reserved essentially the same 

 rights as those originally reserved by the King. 



In exchange for the state's willingness to defend 

 an owner's property, it reserves interests in those 

 lands, including the right to tax land; the right to take 

 land for public use with just compensation (also 

 known as "eminent domain"-sort of sounds like the 

 King talking, doesn't it?); the right to control use to 

 ensure protection of the public's interests; and-when 

 an owner dies without a will and no known legal heirs- 

 the right of escheat, i.e. to take possession of the land. 

 In the U.S., states also own wildlife that inhabits 

 private lands, much as the King reserved the rights to 

 wildlife on lands of his kingdom. A landowner can 

 harvest wildlife but only with a proper license from the 

 state and during the appropriate season. Rules about 

 game licenses vary by state, but the point is that no one 

 but the state owns wild animals until they have been 

 harvested. 



It is not too surprising that most of the debate about 

 private property rights is on deciding when the 

 public's interests are at stake, what constitutes a 

 "taking" or rights, and how to figure "just" 

 compensation. For example, does a landowner have 

 the right to install a hazardous-waste processing 

 facility? Probably not, but the answer depends on the 

 extent to which the public is protected from any 

 negative impacts that might result from this decision. 

 If the answer is no, does this constitute a "taking " of 

 the owner's rights? And if so, what is "just " 

 compensation for denying these rights? 



More likely, the situation is reversed: the state 

 offers to buy land for such a facility. If the owner 

 refuses to sell, the state condemns the current uses of 

 the land and exercises its right of eminent domain (in 

 the name of public welfare, of course). What is just 

 compensation for a taking in this instance? Not what 

 you would expect. Most often, compensation is 

 limited to reimbursing the owner for the value (and 

 future value) of the land's current use. If it is hay land 

 with a beautiful view, just compensation covers the 

 value of the land for hay, not the potential loss from 



Fruit Notes, Volume 66, 2001 



41 



