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

Property in its appropriate sense, means that dominion or indefinite right of user and disposition which one may lawfully exercise over particular things or subjects, and generally to the exclusion of all others, and doubtless this is substantially the sense in which the word is used in the constitution; yet the term

is often used to indicate the res or subject of the property rather than the property itself.103

The subsequent evolution of the meaning of property under U.S. property law probably had more to do with the philosophical constructs that stimulated debate on the nature of property around the turn of the century. The development of abstract theories can be identified with the expansion of the ownership of interests in corporations. "[I]t is clear that in dealing with the modern corporation we are not dealing with the old type of private property."104 The expanding need for the development in capital that was backed by securities necessitated a more abstract view of property.

As the varieties of commercial and intangible property grew during the nineteenth century, land slowly receded as the model for property conceptions. As the most significant forms of new property were incorporeal, judges were pressed to redefine the nature of interference with property rights more abstractly, not as an invasion of some physical boundary but as any action that reduced the market value of property.105

This manifested itself in the move from a "physicalist" view of property to the "abstract" view of legal writers such as Professor Wesley N. Hohfeld (1878-1918).106 "Blackstone had made clear that property could exist only in relation to some thing. Hohfeld rejected even this minimal association with tangible objects, arguing that property could exist whether or not there was any tangible thing to serve as the object of the rights."107

The theory behind the view of property as a bundle of rights, however, is not of such recent origin, and can be said to derive from the term universitas juris or universitas iurus (and universitas facti), which are "non-Roman terms [that were] coined in the literature to distinguish a group of things which though physically separated are treated as a whole."l1 English jurist John Austin (1790-1859) develops this theory in his lecture (circa 1828-1832):

sec 997. 1. A status is a set or collection of various rights or duties, or of various capacities or incapacities to take or incur rights or duties. 2. The rights or duties which are its constituent elements, are legal effects or consequences of one investitive fact, of one title or mode of acquisition, or, in the usual language of the Roman lawyer, of one causa or antecedent.

sec 998. Now it certainly is true, that a status is a set or collection of various rights or duties. And that the rights or duties which are its constituent elements, are legal effects or consequences, mediately or immediately, of one and the same title or investitive fact or event.... But though these two properties belong to every status, they will not distinguish status or conditions from those rights and duties which are matter for the law of things.