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Green wood in the bundle of sticks: Fitting environmental ethics and ecology into real property law

Boston College Environmental Affairs Law Review, Winter 1998 by Goldstein, Robert J

GREEN WOOD IN THE BUNDLE OF STICKS: FITTING ENVIRONMENTAL ETHICS AND ECOLOGY INTO REAL PROPERTY LAW^

I. INTRODUCTION: GREEN WOOD

To be alive, wood must be rooted and green. Green wood will bend when twisted; it will endure fire; and it will resist breaking. Even when cut and detached from its roots, wood remains green for some time. Eventually cut wood dries out and begins to rot. The bark covering a piece of wood often hides whether the wood is in fact living or dead. Scratch below the twig's surface and its color will indicate the difference between the brittle, detached sticks, and the green wood.

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For almost a century, a chasm has been developing between the popular conception of property as things and the theorists' abstract notion of property as only consisting of rights and duties. This chasm has developed despite the increasing awareness of the need for human stewardship of the environment and the development of the science of ecology. The nature of ownership in terms of property involves the rights and duties which the owners possess incidental to the status of title. Modern authorities take the position that a sophisticated perspective sees property as a right, rather than a thing.1 This is evident when society distinguishes property from mere possession.2 Nec possessio et proprietas mis ceri deben-possession and ownership should not be confused? "So soon as any one has said `You have got what belongs to me,3 the germs of these two notions have appeared and can be opposed to each other."4

"What distinguishes property from mere momentary possession is that property is a claim that will be enforced by society or the state, by custom or convention or law."5 The finder of a thing can have momentary possession, as can the thief.

"Property" is more than just the physical thing-the land, the bricks, the mortar-it is also the sum of all the rights and powers incident to ownership of the physical thing. It is the tangible and the intangible. Property is composed of constituent elements and of these elements the right to use the physical thing to the exclusion of others is the most essential and beneficial. Without this right all other elements would be of little value .... 6

Real property refers to ownership of rights in the land or soil, and an estate is the possessory interest in real property.7 As land or soil, real property is a part of the natural world, part of the biosphere we call Earth, and part of smaller functional units which we call ecosystems. There is a connection between pieces of that land, as all are interconnected. The land may be perceptibly limited to its surface, (as well as some finite below-ground areas, and some airspace, as in the case of buildings) but the soils, runoff, and ground water below, and the airspace above, as well as the flora and fauna which occupy surface, air, and below-ground, are the vectors of the interconnection." This Article is concerned only with real property, and neither with the fixtures appurtenant thereto nor with personal property. This distinction is necessary to further the thesis that real property warrants distinctive treatment based upon its unique character.

An estate-in-land is often identified by its limiting factors in terms of the claims of others to title. The estate that will be referred to herein is the estate that carries with it the ultimate legal title.9 In Roman law the condition might be described as dominium;10 in terms of modern U.S. law that estate might be referred to as "fee simple."" It is understood that conditions and limitations do exist with lesser interests in real property; indeed, conservation easements exist for the very purpose of imposing environmental ethics upon privately held land. These lesser estates will, a fortiori, be subject to a subset of the rights and obligations found to be incidental to the ownership of the estate that carries with it the ultimate legal title in real property.

The issue of "how far private ownership should stretch and to what extent it should be modified in the public interest"12 cannot be understood without an "adequate analysis of the concept of ownership."13 Although slower in evolving than other bodies of law, the laws of real property ownership are neither static14 nor well settled.15 That very fact attests to their fluidity-their evolutionary nature, which is the very nature of common law.16 "It is our boast that the law is a progressive science; that it expands and develops as civilization advances, and adapts itself to the moral and ethical standards of successive generations of men."17 Nevertheless, the popular perception of real property ownership, especially with regard to real estate transactions and the rights appurtenant thereto, is of a well-settled body of law. This perception may very well be the result of the relatively short period of time during which individuals own real property. In the evolutionary sense, the ownership and use of a particular property during the course of an individual's lifetime may indicate stability of rights and responsibilities, whereas a long-term view demonstrates the fluidity more eloquently. That is why it is necessary to trace the development of ownership of real property to its origins. The concept of ownership contains elements that are variable both in definition and in range.18 "The changes are related to changes in the purposes which society or the dominant classes in society expect the institution of property to serve."19

Green wood in the bundle of sticks: Fitting environmental ethics and ecology into real property law

Boston College Environmental Affairs Law Review, Winter 1998 by Goldstein, Robert J

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