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

2. History of the Bundle Metaphors

The "bundle of rights" metaphor is generally attributed either to Supreme Court Justice Benjamin N. Cardozo (1870-1938)116 or Professor Hohfeld,117 although it is questionable that either actually first coined that phrase, used it as a legal metaphor,118 or applied it to property.119 The first use of this term appears in the 1888 Treatise on the Law of Eminent Domain in the United States by John Lewis (1842-1921).120 "The dullest individual among the people knows and understands that his property in anything is a bundle of rights."121

Nevertheless, both Hohfeld122 and Cardozo123 had great influence on its ultimate application as the dominant paradigm123 for the meaning of property.125 "The most important consequence of Hohfeld's system of classification was that it carried through the radical implications of a de-physicalized system of property. Property consisted of abstract legal relations, not physical things, Hohfeld showed."126

In Nashville, Chattanooga and St. Louis Railway v. Wallace, the Supreme Court held that "[t]he power to tax property, the sum of all the rights and powers incident to ownership, necessarily includes the power to tax its constituent elements."127 Soon thereafter in Henneford v. Silas Mason,128 the opinion by Justice Benjamin Cardozo contains an early reference to the sticks ("faggots") in the bundle:

Things acquired or transported in interstate commerce may be subjected to a property tax, non-discriminatory in its operation, when they have become part of the common mass of property within the state of destination. This is so, indeed, though they are still in the original packages. For like reasons they may be subjected, when once they are at rest, to a non-discriminatory tax upon use or enjoyment. The privilege of use is only one attribute, among many, of the bundle of privileges that make up property or ownership. A state is at liberty, if it pleases, to tax them all collectively, or to separate the faggots and lay the charge distributively.129

In Steward Machine v. Davis,130 Justice Cardozo, writing for the Court, pointed out that "[i]ndeed, ownership itself, as we had occasion to point out the other day, is only a bundle of rights and privileges invested with a single name. Henneford v. Silas Mason, 300 U.S. 577."131 The metaphor "bundle of sticks" is apparently derived from the Aesop's fable of the same name.132 As such, the bundle of sticks metaphor was first applied to evidentiary matters involving proof by circumstantial evidence.133 Cardozo seemingly ties the two together in his 1928 book The Paradoxes of Legal Science: "The bundle of power and privileges to which we give the name ownership is not constant through the ages. The faggots must be put together and rebound from time to time."134 However, the legal metaphor of "bundle of faggots" antedates Cardozo's reference by almost 75 years. In the case of United States v. Cole,135 the court wrote "[w]e might not be able, and certainly cannot be required to break this entire bundle of faggots, which government has tied so industriously together."136