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

gation of the children of Israel, that they looked toward the wilderness, and, behold, the glory of the LORD appeared in the cloud." Id. 29 Matthew 4:1 (King James). "Then was Jesus led up of the spirit into the wilderness to be tempted of the devil." Id.

30 RODERICK NASH, WILDERNESS AND THE AMERICAN MIND 17 (1967). 31 2 JAMES KENT, COMMENTARIES ON AMERICAN LAW 387-88 (1836). "The original English emigrants came to this country with no slight confidence . . . in their right to possess, subdue and cultivate the American wilderness, as being, by the law of nature and the gift of Providence, open and common to the first occupants in the character of cultivators of the earth." Id. 32 ALDO LEOPOLD, SAND COUNTY ALMANAC 264-65 (1966). 33 Powell lists the historical changes that have evolved in the possessory interest in real property. 5A POWELL, supra note 14, Para 746.

34 Harvard Law Professor Robert C. Clark noted a seven-step method "for the construction and validation of a full, formal study and explanation of a line of legal evolution." Robert C. Clark, The Interdisciplinary Study of Legal Evolution, 90 YALE L. 1238, 1256 (1981). The seven steps are:

1. Define the trend;

2. Identify starting points;

3. Identify principles of development, the "motor of change;"

4. Identify relevant conditions of development;

5. Put the explanation together

6. Consider contrary facts and arguments;

7. Do thought experiments on the explanatory factors, and when feasible, test the results against the evidence.

Id. at 126-59. This Article will attempt to address each of these seven steps.

35 See generally HORWITZ 1780-1860, supra note 20; HORWITZ 1870-1960, supra note 20. 36 A serious debate is ongoing concerning how and to what extent changes in real property law have come about. In examining property law by focusing on water law, Alan Watson writes: "In the common law, prescription was needed at some times for the acquisition of water rights, notably, perhaps, in England of Luttrel's Case [76 Eng. Rep. 1065, 4 Coke 86a (K.B. 1600)] and in the United States after 1818. At other times and for other judges or writers, priority of use was sufficient for the acquisition of the right. In that light it is very difficult to claim that particular economic circumstances dictated the nature of the legal rules." Alan Watson, The Transformation of American Property Law: A Comparative Law Approach, 24 GA. L. REV. 163, 217 (1990). Watson looks elsewhere for the cause of the changes.

For a sound explanation of the causes of change in any branch of the law at any time in America (or elsewhere), it is necessary to consider both the antecedents of the law and any other legal system which may have been influential, and also to examine (for patterns of similarity or difference in change) the same branch of the law in other legal systems which were subject to different economic, social and political conditions. Id. (footnote omitted). See also KENT, supra note 31, at 441-48.

37 WILLIAM E. NELSON, AMERICANIZATION OF THE COMMON LAW: THE IMPACT OF LEGAL CHANGE ON MASSACHUSETTS SOCIETY, 17601830 126 (1975). 38 Orr v. Hodgson, 17 U.S. 453, 463 (1819). 39 Robert L. Fowler, The Modern Law of Real Property in New York, 1 COLUM. L. REV. 165, 167 (1901). I Rev. Stat. (N.Y.), Part II, Chap. I, 3 (1836) (repealed), reads as follows: "All lands within this state are declared to be allodial, so that subject only to the liability to escheat, the entire and absolute property is vested in the owners, according to the nature of their respective