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

333 See generally Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992). 334 5A POWELL, supra note 14, 746; see generally HORWITZ, 1780-1860, supra note 20; HORWITZ, 1870-1960, supra note 20. 335 See generally Carol M. Rose, Given-ness and Gift: Property and the Quest for Environmental Ethics, 24 ENVTL. L. 1 (1994) [hereinafter Rose, Given-ness].

Property thus includes a normative "deep structure" that may be of use in an environmental ethic. The norms that lurk in property go beyond the wondrous power of exclusion that so awed Blackstone in the case of individual property. They include as well the qualities of restraint and responsibility that characterize common or shared property.

Id. at 28 (footnote omitted).

336 "The interest of the community then is, what? the sum of the interests of the several members who compose it. J.H. BURNS & H.L.A. HART, AN INTRODUCTION TO THE PRINCIPLES OF MORALS AND LEGISLATION/JEREMY BENTHAM 12 (1982). "A measure of government (which

is but a particular kind of action, performed by a particular person or persons) may be said to be conformable to or dictated by the principle of utility, when in like manner the tendency which it has to augment the hapiness of the community is greater than any which it has to diminish it." Id. at 13.

337 In Prah v. Maretti, 321 N.W.2d 182,189 (Wis. 1982), the court construed the policies which had once (during the Industrial Revolution) limited the right of a landowner to sunlight. These policies facilitated the construction of large plants and towering skyscrapers, leaving adjacent landowners in the shadows. See id. These were (1) the "right of landowners to do as they wished;" (2) the view of "sunlight as only aesthetic;" and (3) that "society had a significant interest in not restricting development." Id. The court noted the changed policies in ruling that "[t]hese three policies are no longer fully accepted or applicable. They reflect factual circumstances and social priorities that are now obsolete." Id. 338 See Rumble, supra note 17, at 303. 339 Id. at 315. 340 MUNZER, supra note 1, at 469. 341 As reconciled with the "right to consume or destroy."

342 "The book of life changes, and the values revealed to us today may be different from those that will be revealed to us tomorrow CARDozo, supra note 45, at 59. 343 In Lucas, the Court stated the following:

In light of our traditional resort to "existing rules or understandings that stem from an independent source such as state law" to define the range of interests that qualify for protection as "property" under the Fifth and Fourteenth Amendments. [citations omitted] This recognition that the Takings Clause does not require compensation when an owner is barred from putting land to a use that is proscribed by those "existing rules or understandings" is surely unexceptional. When, however, a regulation that declares "off-limits" all economically productive or beneficial uses of land goes beyond what the relevant background principles would dictate, compensation must be paid to sustain it.