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

Id.

183 Id. at 431.

That the power to tax involves the power to destroy; that the power to destroy may defeat and render useless the power to create; that there is a plain repugnance in conferring on one government a power to control the constitutional measures of another, which other, with respect to those very measures, is declared to be supreme over that which exerts the control, are propositions not to be denied. But all inconsistencies are to be reconciled by the magic of the word conflde'e. Taxation, it is said, does not necessarily and unavoidably destroy. Ib carry it to the excess of destruction would be an abuse, to presume which, would banish that confidence which is essential to all government.

Id. See also Atherton v. FDIC, 117 S. Ct. 666 (1997). 184 See Becker, supra note 18, at 191.

185 Honore, supra note 12, at 124. 186Just v. Marinette County, 201 N.W.2d 761 (Wis. 1972). 187 Id. at 768. 188 RICHARD A. EP8rEIN, TAKiNG: PRIVATE PROPERTY AND THE POWER OF EMINENT DOMAIN 96 (19). 189 Id at 93. 190 Id.

191 Myrl L. Duncan, Property as a Public Conversation, Not a Lockean Soliloquy: A Role for Intellectual and Legal History in Takings Analysis, 26 ENVTL. L. 1095, 1159 (1996) (citing Lochner v. New York, 198 U.S. 45 (1905)). 192 Sunstein, supra note 78, at 880. Sunstein notes, however, that this is an oversimplification. See id. 193 5 JOHN LocKE, WORKS 421 (1823) (Aalen, Ger.: Scientia Verlag, 1963) [hereinafter 5 LocKE, WORKS]. 194 EPSTEIN, supra note 188, at 123.

195 See Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1031-2 (1992). 196 According to Penner, "[r]ather than being an incident of property, the `prohibition of harmful use' merely indicates the existence of basic prohibitions against acting maliciously or carelessly to harm others." Penner, supra note 117, at 761. If this were the case, no mention of the prohibition would be necessary, as such act would be covered wholly by nuisance. 197 See, e.g., In re Spring Valley Dev., 300 A.2d 736, 746 (Me. 1973). It seems self-evident in these times of increased awareness of the relationship of the environment to human health and welfare that the state may act-if it acts properlyto conserve the quality of air, soil and water

To do so the State may justifiably limit the use that some owners may make of their property. Our law has long recognized that a landowner holds his property subject to the limitation that he may not use it to the serious disadvantage of the public. Id.

198 With regard to the interplay between rights and duties, see generally Wesley N. Hohfeld, Some Fundamental Legal Conceptions as Applied in Judicial Reasoning, 23 YALE LE. 16 (1913). See also JOHN STUART MILL, COLLECTED WORKS OF JOHN STUART MILL 199 (John M. Robson ed., 1984). 199 DE LAVELEYE, supra note 15, at 338. 200 HENRY CAMPBELL BLACK, BLACK'S LAW DICTIONARY 1384 (Joseph E. Nolon & M.J. Connolly eds., 5th ed. 1979) [hereinafter BLACK'S 1979]. 201 JUST. sec 1 in 3 GAIUS, THE INSTITUTES OF GAIUS AND JUSTINIAN (T. Lambert Mears trans., 1882); see also JUST. secs 2-4, in 4 GAIUS, THE INSTITUTES OF GAIUS AND JUSTINAN (T. Lambert Mears trans., 1882). 202 Becker, supra note 18, at 192.