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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
120 JOHN LEWIS, A TREATISE ON THE LAW OF EMINENT DOMAIN IN THE UNITED STATES 57 (1888). The Supreme Court of Missouri refers to Lewis as "[a]n eminent text-writer in his recognized and widely quoted treatise on the subject of Eminent Domain." Morgan v. Willman, 318 Mo. 151, 164 (1927). There is no doubt that Lewis' treatise was influential; it was cited as early as 1889 by counsel before the Court of Appeals of New York in Mayor, Aldermen & Commonalty of New York v. Carleton, 113 N.Y. 284, 286 (1889); and by the U.S. Supreme Court in 1897 in the case of Chicago, Burlington & Quincy R.R. Co. v. Chicago, 166 U.S. 226, 245 (1897); as well as in hundreds of cases since. However, there is no indication in case law that Lewis"' "bundle of rights" metaphor was relied upon. The appearance of the metaphor in Lewis seems to highlight how the competing theories of property were advancing in the late nineteenth century; as the physicalist approach waned, the bundle theory took hold. 121 LEWIS, supra note 120, at 57 (emphasis added). 122 "Suppose, for example, that A is fee-simple owner of Blackacre. His 'legal interest' or 'property' relating to the tangible object that we call land consists of a complex aggregate of rights (or claims), privileges, powers, and immunities." WESLEY NEWCOMB HOHFELD, FUNDAMENTAL LEGAL CONCEPTIONS AS APPLIED IN JUDICIAL REASONING AND OTHER LEGAL ESSAYS 96 (Walter Wheeler Cook ed., 1923). "Some say that an owner has a bundle of rights against various people. Yale's great legal analyst, Professor Wesley N. Hohfeld, refined this notion further by describing ownership as an aggregate of rights, powers, privileges, and immunities, and minutely defining and analyzing each of these." A. JAMES CASNER & W. BARTON LEACH, CASES AND TEXT ON PROPERTY 72 n.1 (1969) (noting that "Hohfeld s gift of expression was not felicitous, but his ideas were restated with great effect by Professor Corbin in Legal Analysis and Terminology, 29 YALE LJ. 163 (1919)). 123 See generally Nashville, Chattanooga dc St. Louis Ry. Co. v. Wallace, 288 U.S. 249 (1933). 124 See Penner, supra note 117, at 713. 125 The Supreme Court identified "incidents" of ownership in Bromley v. McCaughn, 280 U.S. 124,137 (1929).
126 HORWITZ, 1870-1960, supra note 20, at 156, citing Vandevelde, supra note 97, at 359-62. 127 Nashville, Chattanooga & St. Louis Ry., 288 U.S. at 267-68. 128Henneford v. Silas Mason Co., 300 U.S. 577 (1936). 129 Id. at 582 (citations omitted). 130 Steward Machine Co. v. Davis, 301 U.S. 548 (1937). 131 Id. at 581.
132 The phrase "bundle of sticks" is most often attributed to Aesop's fable: "The Father and His Sons" (also called "The Bundle of Sticks"):
A father had a family of sons who were perpetually quarreling among themselves. When he failed to heal their disputes by his exhortations, he determined to give them a practical illustration of the evils of disunion; and for this purpose he one day told them to bring him a bundle of sticks. When they had done so, he placed the faggot into the hands of each of them in succession, and ordered them to break it in pieces. They tried with all their strength, and were not able to do it. He next opened the faggot, took the sticks separately, one by one, and again put them into his sons' hands, upon which they broke them easily. He then addressed them in these words: "My sons, if you are of one mind, and unite to assist each other, you will be as this faggot, uninjured by all the attempts of your enemies; but if you are divided among yourselves, you will be broken as easily as these sticks."
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