Kelo and Other Notes About Property Rights

This is a work in process. As I have the time and the muse strikes me, I shall add to it.

The law is a balancing act. Rights beget responsibilities and privileges are limited. For example, I have, under the United States Constitution, the right to express myself freely.

At the same time, I cannot exercise that right by crying "Fire" at the Metropolitan Opera House - even while Valhalla is, indeed, aflame in Der Ring des Nibelungen.

When the principal occupation of society was hunting and gathering food, property rights were of no consequence. Nobody owned anything, except perhaps whatever hand tools he or she used and the clothing he or she wore.

When cultures developed, ownership, or more accurately, access to land, became important. It was vital that there be enough area, so that within the land, sufficient animals could be found to feed the culture and sufficient fruits, etc. could be found.

In the case of a nomadic culture, only periodic control of the land area was required, because the group would move on to some other parcel of land. The land itself had no intrinsic value - it was only the produce from the land that was important.

As keeping of herds appeared, interest in land area was claimed by groups, on behalf of the members. Claims by individuals did not make much sense, because when the group moved on, the group ownership might be recognized but the individual ownership made no sense. Individuals needed groups, for their protection, and thus it was reasonable that the elements which supported them were held by the groups.

As time went on, and crops were planted, the concept of usufruct tenure developed. Usufruct is a legal term which means the right to enjoy the crops and other benefits derived from land which someone else owns. That is, individuals had the right to use land, but the land was owned by the group. The land could be used by individuals, but they could not transfer ownership of the land, because they did not individually own it.

As the cultures developed, individual ownership of land - with the right to convey a parcel of land to another - developed. This right to convey the land contrasts with the limited right to use the land for a period of time.

As the occupation of land becomes more intense, the land becomes more valuable, and there is pressure on individual property rights.

Around 100 B.C.the Celts moved into Great Britain, and held land in the ownership of the community, with individual rights to use particular parcels. These parcels were marked with ditches or stone walls.

Julius Caesar entered Great Britain, but did not stay, in 55 B.C. Approximately 100 years later Claudius invaded most of Britain, and Roman law prevailed for the next 350 years.

Roman law was more like ours than we generally imagine. Land was a tangible asset, and since it was a tangible asset it could be owned. Initially some land could be owned and transferred and later virtually all land could be sold, transferred, or left to one's heirs. Land could be leased and mortgaged.

Transfer of title to land was accomplished by delivery of a clump of earth, in the case of raw land, or a brick, in the case of a building. This was called "livery of seisin" and was of two types. "Livery in deed" was accomplished by the transferor and the transferee going on the land and the transferor handing the transferee clump of earth or a brick or other part of the property. "Livery in law" was accomplished by the parties going to within sight of the property, and the transferor stating that he was transferring the property to the transferee and the transferee then going on the property.

From about 1100 to about 1600 land in Great Britain's colonies was often transferred by the "turf and twig" ceremony. The turf and twig ceremony dates from the 12th century, and was practiced regularly during English colonialism to take possession on behalf of English settlers over unclaimed land.

The transferee would remove a piece of turn and place two shillings in the hole. The High Steward or other representative of the Crown then touches the transferee with a twig, sticks the twig in the turn, then hands it to the transferee with the words "This turf and twig I give to thee, as free as Athelstan gave to me, and I hope a loving brother thou wilt be." The High Steward then removes two shilling and the transferee replaces the turf.

Athelstan was King of Britain from 925 to 939. I never had the opportunity of meeting him.

As the British society stabilized, or stratified, and different social classes appeared, the rights of the serfs were very limited - probably just to the occupancy of the land they worked, at the pleasure of the more powerful people above them. The king had overall control, then the members of the court, then those to whom they granted privileges, and so forth down the line. The peasant, who grubbed in the soil, was truly at the bottom of the pile.

The Battle of Hastings brought the Normans to Great Britain and ultimately brought the system of feudal tenures into being. Much of what we know as our present system of land ownership grew up in England after 1066.

The English economy changed, the Black Plague devastated the society, and over time the rights of the serfs grew. Ownership of land by peasants became a reality.

When the Pilgrims arrived in the New World, they brought with them the principles of the English common law, and that was adopted by most of the states of the United States.

Rights in real estate are protected by the Fifth Amendment to the United States Constitution. The Fifth Amendment is widely known because it is invoked by persons who are accused of crime, but it does have a provision dealing with real estate and other property. Here is the text of the Fifth Amendment:

"No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation."

The key words are in the so-called "taking clause" - "nor shall private property be taken for public use, without just compensation."

About the year 2,000 New London, Connecticut was in dire financial straits. Unemployment in the New London area was twice the state average.

To try to get the economy moving, the City established the New London Development Corporation. The plan was to acquire 90 acres of land next to a parcel where the Pfizer pharmaceutical company was going to build a $300,000,000 research facility.

The land would be leased to private developers, who would build an office park, retail establishments, an "urban village" of some 80 homes, a waterfront conference hotel, and other amenities. NLDC acquired most of the property without event, but nine property owners, including Susette Kelo, refused to sell.

NLDC started condemnation proceedings. Kelo and the others appealed to the Connecticut courts. The principal point of their argument was that the takings would violate the Fifth Amendment taking clause If property were taken from citizens by the government and then leased to private developers, would that would constitute "public use?"

There was no question that property could properly be taken for a fire station, or a library, or a city hall, but in the case at hand the issue was whether turning over property to a private party would be accepted. The Connecticut Supreme Couret upheld the taking, and the plaintiffs petitioned the Supreme Court of the United States for a writ of certiorari.

A writ of certiorari is issued out of a higher court to order a lower court to deliver a file to it for review. In this case, the U. S. Supreme Court granted certiorari and heard the case in 2005.

The name of the case in the Supreme Court was Kelo v. City of New London, and the citation was 125 S. Ct. 2655. The Supreme Court, in a five to four vote, held that the the "condemnation" or taking did not violate the taking clause of the Fifth Amendment.

Sandra Day O'Connor, in a strong dissent, said: "Nothing is to prevent the state from replacing any Motel 6 with a Ritz-Carlton, any home with a shopping mall, or any farm with a factory."

The Kelo case caused a great deal of concern around the country. Many legal scholars feel that the Court got it wrong.

The battle over the Kelo decision is not over. The "public use" language in the fifth amendment has, over time, been understood to mean "public purpose." For example, land has been taken for Inner Harbor in Baltimore and for Lincoln Center in New York City. Unfortunately, the power to take by eminent domain has been used more often in poor neighborhoods than in well-to-do, because poor people have less political clout than people of wealth.

More than forty states have enacted "anti-Kelo" legislation which limits the circumstances under with their state government can seize property. Pending legislation in Massachusetts would allow amend Section 79 of the General Laws to permit a government entity to take private property "only when necessary for the possession, occupation, and enjoyment of land by the public at large, or by public agencies."