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

sec 999. For, first, these properties belong to each of the aggregates which are styled by modern civilians universitatis juris; that is to say, complex sets or collections of rights and duties ....

sec 1000. And secondly, the two properties, which, in Bentham's opinion, characterize a status or condition, are not even peculiar to those aggregates of rights and duties which are styled by modern civilians universitas juris. They are found in most or many of those numerous rights and duties, which, as contradistinguished to universities of rights and duties, are deemed particular or singular. Take, for example, the right of dominion or property in a specifically determined thing; as a horse, a slave, a garment, a house, a field, or what not. It is manifest that the right, though deemed singular, is truly a collection or aggregate of rights which an adequate description would occupy a bulky volume. It consists, for example, of the right of exclusive user [sic] or possession; the right of disposing or alienating totally or partially; of rights of vindication, and other rights of action, in the event of a disturbance of any of those primary rights; and each of these rights, which combine to form the right of dominion, may itself be resolved into other rights which are less complex .... 109

That this changeover was gradual is evidenced by an 1882 article in The North American Review,110 which expressed frustration that the concepts that were germinated by Austin had not taken hold.

There is nothing more difficult than to effect any change in a legal conception once firmly imbedded in a system of jurisprudence, particularly such a one as ours, in which general principles are developed out of adjudicated cases, while each case is, in theory, supposed to be founded upon and governed by another precisely similar; in which, in fact, there is, in theory, supposed to be no change at all. It is not surprising, therefore that we should find the conception of "property" prevailing till a very recent period in the United States, to be still the same which the word suggested to lawyers of the last century, which Blackstone elaborated in his "Commentaries," and which historically may be traced to the archaic customs which answered the purpose of law in the forests of Germany.111

While theorists like Austin had begun to conceptualize property as a set of rights, the conception of property as things was a durable notion.

The slow metamorphosis of the common law resulted in a duality in the meaning of property, a duality that in some sense continues to exist today.112 The U.S. Supreme Court in Hamilton v. Rathbone113 noted that the "word 'property' . . includes every right and interest which a person has in lands and chattels, and is broad enough to include everything which one person can own and transfer to another."114 In 1909 the duality was patent from a definition in a legal encyclopedia: "property includes whatever things may be the subject of ownership, and all rights, titles and interests therein."11