The Creation of Property

I happened upon this post by Leonard at Unruled via Jay Solo and it warmed the cockles of my heart. (Maybe not the cockles. Maybe a little below the cockles. Maybe the sub-cockle region. Maybe the liver, maybe the kidneys — maybe even the colon.) I live in Dallas, Texas — when it ices and snows, we shut down until it melts and then come out of hiding. I had no idea that this happened, but I grokked it as soon as I read it:

It is sometimes argued by statists that creating property rights can only be done via the state. I think of that when we get snowstorms, as we did last week here in Baltimore. After a storm, the cost of creating a parking spot, combined with human beings’ natural territoriality and innate sense of justice, creates property. It doesn’t matter whether or not the practice is legal or not. People will claim the spots they create. The state is not creating this property; often it is opposed to it. But it happens nonetheless. Enforcement of the regime is easy enough, via anarchic individual action. When someone steals your spot, you retaliate against their car.

Hooray for property creation! This is basic classical liberal property theory. Public right of way is community property. That is what the street is. Being common, when you add labor to it, the use of the fruits of that labor belongs to you. Because the code does not recognize this property right — the law only recognizes rights; it does not create them — people will enforce these rights in a less-than lawful manner. Vigilantism will provide the rule of law that the state fails to provide.

You see, that is what the law is. It doesn’t live in some book at the local courthouse. The code lives there. Those are the laws that are written down. The rest of the law — the common law — lives in the minds of society. People know that when you shovel away the snow in a spot, then you have that spot. You created that spot. They know when they take that spot that they are stealing the hour of your life you spent creating that. More importantly, if they decide to sue you for enforcing the common law, they will not succeed in front of a jury of your peers.

You peers know something that the lawyers and judges tend to forget. The Law belongs to the People, not to the State. The People are the twelve men (good and true) of that jury. They know what the law is, and they will enforce it. Judges and lawyers often don’t like that, because they would like to take the Law as their own. Too bad.

I wish someone would sue another person over the theft of a spot like this. A good attorney could get a jury to agree, and that would set a legal precedent that would help swing the balance between The State and The People in regards to property back towards the people. There is a sound legal basis for it in common law. The creation of the spot is a form of adverse possession and homestead.

All of the elements have been fulfilled. The state is the owner (according to code) of the spot. The shoveler marks the spot as being taken (both by improving it and obstructing the use of it), the possession is for the duration of the season, and defended against other occupation (as shown by the holes in the tires and bricks in the window), and the land would be unused if it was not adversely possessed — because (I’m assuming) that if the city was going to plow it, this wouldn’t be an issue. If someone doesn’t shovel it, it isn’t going to be shoveled and no one will be using it. This is classic adverse possession, and someone needs to take it to court and prove it to the state.

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