The Nature of Property Rights: Personal, Private and Public....

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I have been reading a lot of political economic theory lately.  Mostly Libertarian Socialist.  But it has gotten me thinking about the nature of property.   Sort of a little "hobby" of mine.  So I have been reading various textbooks, case law, and a little book by Proudhon called "What is Property?"  Some of you may have heard of it.  It is, unfortunately, not something you sit and read on a sunny afternoon, but something you read a page or two at a time and then try to assimilate. 

The first thing I did, even before reading a page of Proudhon's book, was to look for definitions of property. I turned to a hornbook where I read that “[w]hen an individual claim or interest receives recognition and protection by the state we say that the party concerned has a legal right in the matter under consideration.” So, for instance a right to be free in the possession and enjoyment of someone's land and chattels. The correlative is that there is a legal duty. Brown, Ray Andrews, The Law of Personal Property, Second Edition, ©1955 Callaghan and Company. p. 2.

“Legal rights are, however, not static things, but they may be created, transferred, and lost. This capacity in an individual of creating, transferring, and divesting himself of legal rights is known as a legal power.” Id., p.2. A person may have a legal power, but no right, as in a thief. But this still does not define “property” itself, but rather describes property “rights”.

Such legal rights have been divided in personam and in rem. Id., p. 3 In personam is a right which exists only against a person. p. 4 In rem is available against persons generally. p. 4. In personam, the correlative rights exist only with respect to a certain class of persons. With in rem correlative rights exist in persons generally. Again, useful ideas, but not a definition. So I delved further and did find the following:

In the popular sense of the word property is often used in reference to those tangible things, which are subject to the rights, which we designate by the term ownership. A man's property we say consists of lands, buildings, furniture, cattle, wagons, automobiles and the like. In the legal sense, however, property means not the thing itself, but the rights which inhere in it. Ownership, or the right of property is, moreover, nor a single indivisible concept but a collection or bundle of rights, of legally protected interests. The owner of a given piece of land or chattel has not only the interest of possession, and of enjoyment and user, but also that of transfer to another, and even of directing how it shall be disposed of upon his death.

Id. p. 6. Now, this truly is a definition! However, it is an interesting one because it does not define the thing itself, but rather the thing by our relationship to it. Sort of an “it's property because we say it is” type of definition. In fact, under this theory, you could own all the property rights and not a stitch of what any layperson would call property at all. And many people do.

The definition and concept of property is obviously more complicated. “Certain physical things, such as air, light, and running water are by their very nature incapable of being owned. It is impossible to exercise over them that power of exclusive control which is the very center of the concept of private property.” Id. p. 7. Looking at a hornbook on real property law, I found even less explanation of property. Rather there was a gradual presupposition that everything came from God, passed through the divine right of King's through their fall, through barbarian rabbles and came out the other end of a feudal system wholly intact.

Having said that, two concepts are worth repeating. First, “Proprietary rights in land are, we may say, projected upon the plane of time. The category of quantity, of duration, is applied to them.” Moynihan, Cornelius J., Introduction to the Law of Real Property, West Publishing Company, 1962. The second concept is how the philosopher Cicero (at least according to Proudhon) compared the earth to a theater. Each person is accorded a seat and holds that seat while they occupy it. When they leave it is free for someone else to occupy.

These statements hit upon an important truth.  There simply are different types of property with different qualities.  A tautology that can be quite helpful.  The real question is not whether there is or is not property.  Obviously there is some sort of property.  Different forces work upon different types to make them property or to cause them to retain value as property. It appears the definitions of property may change depending on the “plane of time” or how many seats are in the theatre and how many people want to see the show.

Proudhon seemed to think there were two different concepts:  private property and personal property.

There most assuredly is some sort of personal property.  My clothes, my house, etc.  These are - more or less - inviolate.  We as a society simply frown upon people ripping other people's clothes off.  No matter how outlandish they are.  And given the way many people would look without clothes, I can support this. But I have also learned that just because I possess something cannot be a basis on which I own it.  Otherwise, I would simply need to steal something to appropriate it.  Otherwise, I could own a person.  Last check, society still frowned on owning people.  In fact, in some circumstances we frown on "renting" people, owning some animals, owning some substances, etc.  

On the other hand, we discuss PRIVATE property also as a type of property.  So you can "own" land you have never seen and never visited.  It is possible you don't even know you own it, as you could have "purchased" it as part of an investment. It seems simple possession cannot be the basis for property. Perhaps put in a more modern context, you own what you create.  Again, to some extent this is obviously true.  I have created this text, I have created the thoughts, I "own" this.  I guess I could take ads and "sell" space, or try to copyright it as intellectual property.  I have done none of this.  But by the same token, what right have I to sell space on the sheet of paper (or the webspace) where you are reading this?  I created the text, but not the medium.  I did not create the computer on which I write.  These ideas are mine, but they are spawned by what I have read.  Nothing exists in a vacuum.  So if everything and everyone contributed to this blog - this so-called property - then everyone owns a little piece of it.  And if everyone owns it, then NO ONE owns it.  

Yet, as a society, we protect these two types of property equally. 

But should we?  Of course, no one should take your home.  But if you simply are not making productive use of something and someone else needs it, or can make productive use of it, then what is the purpose of protecting your inchoate interest?  Protection of such an interest serves only to perpetuate the tendency of money to make money, but serves no useful purpose to society other than to increase capital.  In fact, it could be argued by taking away the ability of someone else to use the property, we have actually decreased productivity. 

Do not take this question as meaning that all retirement savings or other investments should be socialized or that private property should necessarily be abolished.  The aggregation of money for investment is extremely important for large projects and can serve the public interest. 

However, is it not also possible that we should recognize the distinction between what is essentially a human need for personal property that is inviolate and preserved to them as the fruits of their labors and the private property that is nothing more than property as exists on paper?  Such a distinction could have profound impacts on the way we view the environment, agriculture, energy, and all consumer goods.  I don't suggest an answer, but let's have the debate.

There is a false and mistaken division between private and public property in the United States today.  There is also a lack of respect for personal property.  This false division and lack of respect leads to a flaw in society.  A small number of self interested individuals make a lot of decisions for a large number of individuals about what is best for everyone.  By understanding (and perhaps abolishing) the "public versus private" distinction, we can start down a path of reinventing our society and decision making to benefit all persons.

My research indicates that laws and governments - states - spend a lot of time "protecting" private property.  In many cases or places, this is defined by its juxtaposition to "public property".  In this definition, public property is that which is owned by the state, and private property is everything else.

Following these definitions, the Complaints of the Declaration of Independence and the protections of the Fifth Amendment to the United States Constitution look as if they are meant to keep the state from "stealing" someone's property.  Indeed, that is a true statement.  However, it is far from the whole story.

In thinking about property (personal, private or public), we need to start earlier and from a different perspective.  To a large extent, prior to the Magna Carta all property was owned by the king.  I recognize this is a gross exaggeration and that there are numerous examples where this was not true.  However, this is a useful place to start.  The Magna Carta essentially granted rights, or "property", as that term can be loosely used away from the king, while retaining certain rights, or "property" in the king.

Now, there is an interesting characteristic of property that everyone knows and everyone forgets.  Property owns you.  While you "own" something, you always have some sort of obligation, whether it be a tax, maintenance or simply finding a place to store the property.  And, of course, you always have the risk of loss.  After you give property away, of course, you no longer own it.  So the peculiar thing is that the only time you actually exercise all the rights of property that you may have is at the particular time you give away those rights.

That bears repeating:  only at the time someone actually disposes of their property is that person taking complete control and exercising all the property rights they own. 

Taken one logical step further, the best of all possible worlds would be to give away the (property) rights, while still maintaining the ability to direct the use and management of the (property) rights.  The king knew this when he put his seal on the Magna Carta.  The Barons that forced the Magna Carta did not get freedom from the king.  The state knows this when it allows you to "keep" your property free from taking for public use without just compensation.  On a personal level, the parent who "gives" a car to their child to drive to and from school and work, and nowhere else, practices the same type of control.

So let's use this concept and redefine public property.  Public property is not just the property "owned" by the state.  Indeed, ownership by the state is not nearly so public as one might think.  The ownership or use of the property is limited by the owner - the state - not the public.  Public property is, rather, the whole of the rights that the public has.  This includes positive rights such as traditional deeded ownership of land, as well as negative rights, such as the right to zone, or set a speed limit.  Let's also do away with the idea of the state "owning" these rights.  While modern law seems to treat that as true, I am proposing that is the wrong way of looking at things.

The King gave way to Parliament in England.  However, in the United States the King gave way to the people.  In fact, in the Commonwealth of Pennsylvania, the rights have been protected by the Commonwealth as if in Public Trust.  The Pennsylvania Constitution essentially gives the people rights which - most rightfully - should be public property.

So then, private property is everything not owned by the people, right?  One certainly can make that distinction logically.  However, there is another more fundamental distinction at play.  Since so many property rights are subject to so many rights of the public, is there not a third, more inalienable property right?  Did the Declaration of Independence not indicate there were inalienable rights such as life, liberty and the pursuit of happiness?  Can someone take your intellectual property?  You can give it, perhaps without protection, but can they actually take it?

My suggestion is that there are certain personal property rights which are inviolate.   Nor should these be limited to your thoughts.  Life, liberty and the pursuit of happiness come to mind.  The clothes on your back should be your personal property, subject to no one else's right to remove them.  Of course, the line gets blurred, but generally the fruits of your labor should be yours.  You create it, you keep it or dispose of it.

However, all other property, including the money received if disposing of personal property, and no matter whether "private" or "public", is simply property.  Again, all other property, whether "private" or "public" is simply property.

It is neither good, nor evil.  One property right is limited by another.  In a society, one in which presumably there is a social compact, the concept of correlative rights allows for seemingly incongruous positions on property.  Taxes are an example of incongruous positions.  If your personal property was inviolate, and you sell it, why wouldn't the income be inviolate.  This is because taxes are simply a method of aggregating capital that presumably the public has agreed upon (this is another subject, for another day, but remember that whole "taxation without representation" thing). 

So the important thing turns out not what kind of property right we have after all.  The important thing is what we as a society choose to do with these rights.  Right now, much wealth (a form of property) is concentrated in a few holders.  This is not necessarily bad.  A concentration of wealth allows for investment.  What is dangerous is how the decision is made how that wealth should be exercised.  In other words, how and when will it be given away?  To who?  What restrictions will be placed on how that wealth is used?  As a society, we should be wary of  allowing a small group of persons to make those decisions.  Likewise, we still have the same tensions as the founding fathers regarding the tyranny of the majority.  More recently, we need to be concerned about the tyranny of what is loosely termed special interests. 

While I cannot answer specifics as to ownership or wealth transfer or regulations and rules on the use of property (who am I to impose this order unilaterally anyway), I do suggest that people stop thinking in terms of public versus private (and left versus right).  We need to begin to think of "us" and what is best for ourselves and our children.  It is not best for a small number of private interests to make public decisions.  It is not best for the public to abdicate their public responsibility and allow a small minority of persons to hold capital with little, if any, accountability to the public.

Talk with people.  Talk with your family.  Talk with your friends.  Talk with those who disagree with you.  What kind of social conscience do we all agree a large company like Walmart should have in return for the public allowing them to exist and concentrate wealth in a small number of people?  What are we willing to do to achieve this? 

Oil and Gas as Subject to the Public Trust...

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 I have written about wildlife and the public trust. Part of the reason is that I would also like to discuss how other natural resources should also be part of the public trust. The Environmental Amendment, in fact, makes this imperative.

Pennsylvania is currently in the midst of an oil and gas boom. The Marcellus and Utica Shales. Much information about this can be found on the websites for the Pennsylvania State University Extension Service, or even found in any Google search. There can (and should) be a discussion of whether this is good or bad. However, there should also be a discussion of the nature of the rights in oil and gas. I will use this as a jumping off point for the discussion of natural resources in general.

First, let's start where we were and discuss deer. Deer are very important to the Commonwealth. They are the state animal. Throughout the years, they have provided food for Pennsylvanians, as well as an export to cities such as New York City. So successful was this export that deer needed to be protected and the taking and possession of deer, among other wildlife, is highly regulated pursuant to the Game and Wildlife Code, 324 P.S. §§101, et seq. The Pennsylvania Game Commission is even charged with managing wildlife with due regard for the Commonwealth’s hunting and trapping heritage.

Deer are wildlife that move freely on and off property. They are ferae naturae. An individual can only legally possess in accordance with the Game and Wildlife Code, 34 Pa.C.S. §§101, et seq., which requires certain paperwork. Simply shooting a deer does not make it the shooter’s property. A shooter must have a license and must inflict the mortal wound and then tag the deer before it can be legally possessed. A landowner cannot fence their property and take ownership of the deer on the property, they must have a permit to be the owner of the deer behind the fence. In fact, with fencing and the associated paperwork someone can own a deer, but if the deer escapes and is legally shot and tagged by someone else, the prior ownership can be lost. See Potts v. Davis, 149 Pa.Cmwlth 8 (1990), citing Douglas v. Seacoast Products, Inc., 431 U.S. 265, 97 S.Ct. 1740, 52 L.Ed.2d 304 (1977) where the Commonwealth Court noted, “it is pure fantasy to talk of ‘owning’ wild birds, fish or animals…”.

Likewise, oil and gas are important to the Commonwealth. Drake’s well was drilled in the Commonwealth. There are many jobs that depend upon the oil and gas industry. Oil and gas provide energy not just for Pennsylvania, but also for the lucrative eastern market. There are impacts to the environment because of oil and gas and the oil and gas industry. In addition, the oil and gas industry is highly regulated. See, e.g., Title 58 of Purdon’s. Oil and gas moves freely on and off property. They have been termed ferae naturae. Westmoreland & Cambria Natural Gas Co. v. DeWitt, et al, 130 Pa. 235, 18 A. 724 (1889). An individual can only possess oil and gas with the proper paperwork. Drilling alone does not make oil and gas the driller’s property. A producer must have a permit and take physical possession of oil or gas before the oil and gas can be said to be legally possessed. A producer cannot simply lease a property and take ownership of the oil and gas on the property, they must have a permit to drill, drill and remove gas. In fact, even if a property is leased, someone with a right to drill in the same strata can remove all the gas and the first producer’s ability to remove oil and gas can be lost. Jones v. Forest Oil Co., 194 Pa. 379, 44 A. 1074 (1900).

Commonwealth case law has long recognized that oil and gas are different by their very nature than coal, minerals or real property. Id. While the previous paragraphs’ assertions regarding oil and gas are seemingly radical, they are, in fact, based upon sound law in this Commonwealth. First, oil and gas leases and reservations are interpreted with respect to the intent of the parties at the time of entering into the contract. Szymanowski v. Brace, __ A.2d ___, 2009 WL 3790561 ( Pa. Super. November 13, 2009). The current oil and gas activity in the Utica and Marcellus Shales was certainly not contemplated. Second, recent cases have begun to develop a jurisprudence of natural resources law. Cases have recognized the difference between ownership of a natural resource and actual production rights to that resource. Moore v. Commonwealth, Department of Environmental Resources, 129, Pa.Cmwlth. 628, 566 A.2d 905 (1989); Belden and Blake v. Commonwealth, Department of Conservation and Natural Resources, 600 Pa. 559, 969 A.2d 528 (Pa. 2009). In addition, cases have recognized that oil and gas are not “land” within the classic meaning of that term. Independent Oil and Gas Association of Pennsylvania, et al., v. Board of Assessment Appeals of Fayette County, 572 Pa 240, 814 A.2d 180 (Pa. 2002). Finally, such developing jurisprudence is in accord with the best interests of the Commonwealth when dealing with other natural resources.

First, the intent of the parties must be examined. Many times courts observe the plain language of the document. Very few older documents speak about size of well pad sites, how roads are determined, what use can be made of minerals or water, or any number of any other rights necessary for production of gas shales.

In the 1930’s, wells were vertical wells with 40 acre drainage areas. Well sites may have been the size of a small truck and the expected life of a well may have been 25 or 30 years. Thus, when a buyer of the surface evaluated a reservation, they could reasonably expect a small surface impact for a relatively short period of time. Conversely, they did not expect that 79 years after their purchase, millions of gallons of water would be used to fracture subsurface zones, that such water would be injected, stored and transported in and through his property, and that 10 acre well pads with cleared pipelines would crisscross the property rendering large areas unusable. Based on the producers’ theories, if the Marcellus was pumped to exhaustion this year, the producer could come back 100 years later and pump it again using new technology. The surface owner would never be able to quietly and peaceably enjoy the estate for which they bargained.

Producers, likewise could not reasonably expect the result urged in case law across the Commonwealth. Coal, can be drilled located and tested, and the extent and quality of which can be measured with some accuracy. Thus, someone reserving coal knows what they will have in 100 years with a high degree of certainty. By contrast, an oil and gas producer will have no guaranty gas will be there tomorrow, let alone 100 in years. By fact of nature and geology, gas reservation are time sensitive and economic and law must recognize this time sensitive component to the rights of production.

In terms of pure real property law, these issues are not issues of oil and gas ownership, but rather of production rights and what those rights constitute. Recognition of oil and gas as ferae naturae, not subject to ownership as land, but only recoverable through the exercise of production rights is perfectly logical. In fact, the law has a word for such a right: profit a prendre. Such a profit a prendre is not listed as the subject of a quiet title action. 

           Likewise, jurisprudence that is developing seemingly struggles with questions of ownership of oil and gas and the exercise of rights of production. In the case of Independent Oil and Gas Association of Pennsylvania, et al., v. Board of Assessment Appeals of Fayette County, 572 Pa 240, 814 A.2d 180 (Pa. 2002), the Supreme Court found that oil and gas were not land subject to taxation. The majority based this on the principle of ejusdem generis, but Justice Nigro in concurrence (joined by Justice Saylor) made a different observation. “…I would simply hold that Appellees lacked the statutory authority to tax Appellant’s interests because oil and gas are of a fundamentally different character than real estate.” Id., at 185 [Emphasis added]. Recognition of this difference can be found in cases decided both before and after the Independent Oil and Gas Association case.

The case of Moore v. Commonwealth, Department of Environmental Resources, 129, Pa.Cmwlth. 628, 566 A.2d 905 (1989) involved a situation of interest. Moore claimed oil and gas ownership through a reservation in the chain of title to lands owned by the Department of Environmental Resources (DER). The facts and reasoning are not particularly useful here, as they were very case-specific. However, the holding is significant. Ultimately, Commonwealth Court found that Moore had title to the mineral estate (the case involved oil, gas and coal), but that the rights of ingress, egress had lapsed and were subject to reasonable regulations of DER. Thus, the court split the rights of production from the rights to the natural resource itself.

Of course this begs the question of what value oil and gas is if there are no production rights. In fact, it is the production rights which have any value at all. The industry itself recognizes this distinction and the importance of production rights as it relies heavily on leases of production rights, not outright purchase of oil and gas. There is case law calling leases sales, and the industry wants the public to believe that a lease carries rights forever. However, the contract itself, the intent of the parties, is what should govern. As we have examined, an outright sale of rights forever simply could not have been contemplated.

Courts also recognize this distinction and courts have implied production rights. The recent case of Belden and Blake v. Commonwealth, Department of Conservation and Natural Resources, 600 Pa. 559, 969 A.2d 528 (Pa. 2009), is just the latest incarnation. That case involved an alleged oil and gas owner and the attempt by the Department of Conservation and Natural Resources (DCNR) to impose rights by virtue of their status as a Commonwealth agency under the Environmental Amendment. The Court rejected these “superpowers” on the part of DCNR. However, the court also explicitly recognized that implied rights – the rights to produce – were limited to reasonable use. The Court also indicated that landowners could seek reasonable restrictions on use and could seek redress for unreasonable use.

What these cases show are courts grappling with questions of natural resources law and how to deal with those resources in the best interests of the Commonwealth. While industry wishes the courts to treat oil and gas as real property, the people can insist it be treated like what it is: energy. You can certainly feel the wind, but you cannot own it. You may, however lease your property for production of wind energy. The value is in the production rights. You can see, feel and even be burned by the sun. But you cannot own the sun or sunlight. You can however, lease your property for a solar farm. The value again is in the production rights. These production rights are not land or real property interests.

These questions seem esoteric, but as courts deal with natural resources issues in the next century, they will become more and more real. There will be questions who owns the ozone above the earth, the water below the earth, and even the radiation that may come from the earth. We can choose to treat these issues with the limited concepts of real property law, with its notions of ownership and try to decide who the lucky winners are. Or we can treat these with concepts of equity, as being a Commonwealth would suggest, and develop case law that suits the circumstances. Chartiers Block Coal Company, 152 Pa. 286, 25 A.597 (Pa. 1893), a case relied upon in Belden and Blake, foreshadowed this moment. They noted:

This is a new question, and one that is full of difficulty. The discovery of new sources of wealth, and the springing up of new industries which were never dreamed of half a century ago, sometimes present questions to which it is difficult to apply the law, as it has heretofore existed. It is the crowning merit of the common law, however, that it is not composed of ironclad rules, but may be modified to a reasonable extent to meet new questions as they arise. This may be called the ‘expansive property of the common law.’ Mining rights are peculiar, and exist from necessity, and the necessity must be recognized, and the rights of mine and land owners adjusted and protected accordingly.

Id., at 294, 295.

This is what it means to be a Commonwealth and to redefine the nature of government. What happens when the second wind farm gets in the way of the first? Oil and gas themselves should be utilized for the benefit of all citizens.  The interests that allow that development are more akin to personal property, and should be protected.  However, as a Commonwealth, for the good of all, we cannot permit the public benefit to be held hostage by a few.  Are all cases to be treated individually, or are we going to have an orderly development for the good of the Commonwealth as a whole? The system as it is set up favors those with money and those with influence. In a sense, those with something of value to lose.  I would suggest, that is true when it comes to the rights to exploit a natural resource.  However, when it comes to the natural resource itself, everyone stands to win or lose.  The people of the Commonwealth will need to use influence and strategy to plan appropriately. 

Private Roads

The Commonwealth of Pennsylvania has a statute, as do many states and Commonwealths, that allows a private party to exercise the power of eminent domain over a neighbor's property so that no property will remain without access to a public street or way. Given my “Musings on a Commonwealth”, this may seem a strange place to go immediately after, but to me this so simply illustrates the tension and relationship between private interests and rights and the public interest.

So first to the statute. It has old origins, dating from the Act of June 13, 1836, Act No. 169 of 1836. It was amended by Act No. 316 of 1927, P.L. 485 (1927), to provide that the Commonwealth could be a petitioner in certain circumstances. The language is stilted and difficult to read, but provides as follows:

The several courts of quarter sessions shall, in open court as aforesaid, upon the petition of one or more persons, associations, partnerships, stock companies, or corporations, for a road from their respective lands or leaseholds to a highway or place of necessary public resort, or to any private way leading to a highway, or upon the petition of the chief executive officer of any executive or administrative department of the State Government for a road from any public highway across any lands of any person, association, or corporation to the boundary line of any lands owned, controlled, or administered by the Commonwealth, direct a view to be had of the place where such road is requested, and a report thereof to be made, in the same manner as is directed by the said act of thirteenth June, one thousand eight hundred and thirty six.

36 P.S. §2731.

What this means is layman's terms is that someone can take your property, without your permission, and turn it into their private property. True enough, the conversion is for the limited purpose of a road. However, this is a road that could allow anything from a farm field, to a hunting cabin to a home to a business to a Walmart. There is no provision in the statute itself that such a thing needs to be for a purpose with any intrinsic value.

Now to the philosophy.

It seems as early as 1885 the Supreme Court of the Commonwealth of Pennsylvania recognized the inconsistency of this statute. They stated that to take private property for a private purpose was on its face unconstitutional. In re Road in Plum Creek Township, 110 Pa. 544, 1 A. 431 (1885). The funny thing is that we might question that concept. Our Commonwealth, in fact our very nation, was founded on the concept of personal property and the inalienable right to property. The roots of this go back to England and the Magna Charta.

But despite this obvious inconsistency, the statue has remained valid. In a recent court argument, the attorney representing the landowner who wanted to take his neighbor's property stated that it was “obvious” that it was in the public interest to have all property accessible to a public street or way. Although the attorney did not elaborate upon the reasons, he did reference the case of Mazzante v. McClintock, 976 A.2d 648 (Pa. Cmwlth. 2009). This case discusses the public purpose behind why one neighbor can force the other neighbor to give them their property. It states this public purpose as opening up otherwise inaccessible land for development. Essentially, the reasoning assumes that development of property is good. Conversely, the inability to develop property is bad.

But what makes this so? The Pennsylvania Supreme Court, while refusing to invalidate the statute, divided on the issue and insisted upon more of a showing of public purpose than the indefinite public good shown by the reasoning in Mazzante. Opening of a Private Road for the Benefit of Timothy P. O’Reilly, 607 Pa 280, 5 A.3d 246 (2010). This case has not been finally decided, and may never be decided, as the parties may settle out of court. But that should not stop us from examining the issue.

For the neighbor whose land is taken, the development is almost uniformly negative. However, the level of negativity can range from almost zero for a small access road on a remote section of a large tract, to horrifying for a road right next to one's dream home to be used as access for a junkyard or a mine site or an oil and gas operation. Critics may say that this negativity is compensated by damages. However, the public good could just as easily argue the converse: the neighbor who denies someone access could be forced to pay the landlocked neighbor for the loss in value caused by the landlocking of the property.

But this analysis is not meant to give legal advice. Each situation is different, and each decision will turn on its own facts and the personalities and needs of the people involved. The intent here is to examine the bigger question of what should really be done. Should one landowner compensate another?

There is, of course, another answer. One which serves the common weal and illustrates why this is a good topic to follow the musings on the meaning of a Commonwealth. Land next to open space typically increases in value. This has been referenced in numerous articles. See, “Economic Impacts of Protecting Rivers, Trails, and Greenway Corridors, atfiles.org/files/pdf/NPSecon1.pdf, and the studies compiled therein; Kroeger, Timm, Ph.D., “Open Space Property Value Premium Analysis”, National Council for Science and the Environment 2006 Wildlife Habitat Policy Research Program Project Topic 1H: Development of an Operational Benefits Estimation Tool for the U.S., June 2008. A simple Google search will turn up many more examples. People have been shown to value living and working near open space. The environment is served by wild places which can serve as refuges for animals, plants and even insects. This natural environment serves to clean water through wetlands, clean air through plants and photosynthesis. Even if the land is nothing but rocks and appears to be fallow, it has life on it which provides detritus and food for animals living and being part of ecosystems elsewhere. It is part of the intricate web of life and balance of nature.

Thus, an undeveloped property serves the public in a myriad of ways from mercenary to spiritual. The point is that if the property being undeveloped serves a public purpose, why don't the citizens of the Commonwealth step up and acquire the property for the public good. And if development of a certain property is in the public's best interest (and most assuredly development sometimes is in the public good) then why doesn't the Commonwealth exercise eminent domain to get access to the property. The answer, of course, is that the Commonwealth instead chose to pass a statue that forces the public good to be placed upon individual private citizens. A situation no one should accept.

Only time will tell if the Commonwealth and its citizens will recognize public benefit and put their common finances toward its protection. Only in this way can we also direct what is truly in the public benefit. Finally, it does not leave the acquisition or protection of the public good to private interests and force neighbor upon neighbor.