In old English common law, private ownership of land included the right to kill intruders.

The rebelling American colonies adopted English law in 1776, and with additional states, modified their property laws. The Fifth and Fourteenth Amendments to the US Constitution require legal (due) process and compensation in governmental taking of private property for public purposes. These elements, echoed in state constitutions and laws variously defining private property, are the foundation of American capitalism.

Analysis by many ardent defenders of property rights ends there. This analysis omits a fundamental reality: property rights aren’t the thing itself; they are rights concerning a thing. Nor are they immutable. Private property rights are subject to two still expanding qualifications:

Property rights are defensive in nature. They do not include the right to injure other people or their property, such as excessive noise, pollution, or sluicing drainage upon neighbors. Property owners are naturally concerned about what their neighbors are doing with their own land. In lieu of mortal combat, the government enforces the rights of others concerning your activities on your land, and your rights concerning their activities on their land. Thus, land use, nuisance, and water and air pollution laws.

Various levels of government representing not only you, but your neighbors near and far, also have rights in your land. For example, our state owns and so regulates underground water and the wild creatures that have traversed your land since before it was settled. Just as you can restrict activities on your land, so can the government in protecting its wild animals and historical and acquired easements to natural systems such as drainage. As more interacting natural systems are understood, regulations will increase.

So, consider our government, with the world’s most capitalist economy, in its continual balancing of the peace, health and economic welfare of its people with the growing understanding of the large natural systems supporting life on this planet as we know it, as your co-owner. What you own is inextricably intermixed with a growing list of items of public ownership and concern, and consequently regulated: air, water, wild creatures, invasive plants and animals, noise and even light.

Bill Appel

Friday Harbor