Friday, September 9, 2016

Easements, Water Rights, and Eminent Domain

They are all rather old concepts, actually.  I forget exactly which part of the Torah it is (perhaps Leviticus?), but the Old Testament includes some rather strict provisions requiring landowners to leave “extras” in their fields for the poor, including a dramatic every seventh-year rest, in which no farming at all was permitted.  And the Romans too differentiated between the concepts of ownership, possession, and use of land:

The word dominium is primarily a legal term, corresponding to a fundamental concept in Roman law.  In that system it refer essentially to an absolute and exclusive right of ownership and control.  Property in this sense was, in Roman legal usage and practice, sharply distinguished from other modes in which land or some other object might be accessible to one individual or group rather than to another.  Such individuals or groups might, for instance, have acquired and so might enjoy the ‘usufruct’ (usufructus) of a piece of property; or they might enjoy the possession or occupation (possessio) of it.  No such situation, however, altered or modified the owner’s exclusive dominium in, or over, the property.

When, in the late eleventh and increasingly in the twelfth century, the study of Roman law revived and expanded in Latin Christendom, the concept of dominium became both crucial and problematic.  In a feudal society, of which the leading characteristic was the holding of lands by lords (domini), lordship was an absolutely basic fact of social life: dominium was therefore an essential concept in the juristic articulation of the social order.  The problem was that feudal relationships did not allow for any such absolute and exclusive right as Roman dominium implied.  The vassal or subtenant was regarded as having something more than mere usufruct or bar possession.  He too was in his way a dominus, and to allow for this it was necessary to devise ways in which dominium itself could be divided.  It was for this reason that the jurists of the twelfth century developed the notion of dominium utile, a form of lordship which still preserved in the hands of the overlord the ultimate dominium directum (the ‘eminent domain’ as it come to be called in some legal traditions) while assuring to his vassal a tenure that was a great deal more than precarious—dependent on the lord’s will or pleasure.  (Lordship, Kingship, and Empire, J.H. Burns, 18-19.)

My parents actually have the use of easement—a narrow strip of land along the edge of (and technically on) a neighbor’s property, which allows them access to an otherwise inaccessible road.  On the flip side, I do know people who have, unfortunately, lost property through eminent domain laws in favor of the state.  In both cases, however, as for the Israelites, the Romans, and the medieval jurists, distinctions emerge out of a concern to balance private property rights with the common good—never an easy and apparently a perpetual historical task, but one well worth engaging in.

No comments:

Post a Comment