A History of American Law by Lawrence M. Friedman

Author:Lawrence M. Friedman
Language: eng
Format: epub
Publisher: Touchstone
Published: 2005-12-14T16:00:00+00:00

Chapter 4

The Land and Other Property

The Transformation of Land Law

The dominant theme of American land law was that land should be freely bought and sold. For this reason, lawyers, judges, and legislatures—and the landowning public—had gone to great pains, in the years after Independence, to untie the Gordian knots of English land law. Law had to fit the needs of those in a big, open country, who thought they lived in a land of abundance, a land with huge tracts of vacant land. (That there were native people living on some of this land was either ignored or ruthlessly dealt with.) For the settlers, land was the basis of wealth, the mother of resources and development. As the frontier moved farther west, land law followed at a respectable distance. The land itself was transformed from wilderness to farm or industrial land; from vacant sites to towns to cities. The land law, too, passed through phases of development. A state like New York had conditions different from Wyoming, and its land law reacted accordingly. Some of these differences in land and resource law, though never eliminated, tended to weaken over time. Colonial history in a way repeated itself; relatively rude, relatively simple land law, in the new settlements, changed to more complex, more sophisticated law, chiefly because more sophisticated law became more relevant to conditions.

For example, there was never much question that American law would absorb the concept of the fixture, with its attendant rules. A fixture is an object attached to the land. It is legally treated as part of the land. This means that sale of the land is automatically sale of its fixtures. A building is par excellence something attached to the land. Yet, in Wisconsin in the 1850s, a court decided in one case that a barn in Janesville, in another, the practice hall of the “Palmyra Brass Band,” were not fixtures at all, but chattels, that could be detached from the land.1 These were flimsy, temporary buildings; the cases simply recognized what was a local and transient condition.

Older doctrines did not last if they seemed not to fit the American ethos. The law of property became vigorously pro-enterprise: for example, the doctrine of nuisance in the late nineteenth century was bent to the needs of entrepreneurs who were using the land; private homeowners suffered.2 In England, “uninterrupted enjoyment” could give a landowner an easement of light and air. In other words, a landowner whose land had a pleasant, open view had a right to keep things that way; he could block his neighbor from putting up a building that would block his view and impair this easement. Especially in towns and cities, this doctrine was out of place—or so the courts thought. America was bent on economic growth—on trying to promote, not curb, the intensive use of land. Chancellor Kent thought the rule did not “reasonably or equitably apply…to buildings on narrow lots in the rapidly growing cities in this country.” “Mere continuance of…windows,” according to

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