From the Mises blog. Archived comments below.
Update: see also Homesteading, Abandonment, and Unowned Land in the Civil Law (Mises Blog, 2009)
In Copyright is very sticky!, I noted how it’s hard to get rid of copyright. There is a somewhat similar aspect to modern property law. As I describe in A Libertarian Theory of Contract: Title Transfer, Binding Promises, and Inalienability (see also A Critique of Mutualist Occupancy), under libertarian property principles, a person can acquire ownership of an unowned resource—whether movable or immovable (land)—by homesteading it—which is basically initial possession coupled with intent to own. As I noted in A Critique of Mutualist Occupancy,
Ownership is acquired by a merger of possession and intent to own. Likewise, when the intent to own ceases, ownership does too—this is the case with both abandonment of ownership and transfer of title to another person, which is basically an abandonment of property “in favor” of a particular new owner. See Kinsella, “A Libertarian Theory of Contract,” pp. 26–29; also Louisiana Civil Code, Art. 3418 (“A thing is abandoned when its owner relinquishes possession with the intent to give up ownership”) and Art. 3424 (“To acquire possession, one must intend to possess as owner and must take corporeal possession of the thing”; emphasis added).
Interestingly, as I was looking for examples in the Louisiana Civil Code for various ways legal systems treat various aspects of property rights, I was unable to find anything in the code about either original appropriation of unowned immovable property (land), or abandonment of owned immovable property.
For movable things (personalty), the code’s provisions seem to embody libertarian principles. See: Art. 3412 (“Occupancy is the taking of possession of a corporeal movable that does not belong to anyone. The occupant acquires ownership the moment he takes possession”); Art. 3418 (“A thing is abandoned when its owner relinquishes possession with the intent to give up ownership”) and Art. 3424 (“To acquire possession, one must intend to possess as owner and must take corporeal possession of the thing”; emphasis added).
But unlike the case for corporeal movables, the code does not even seem to contemplate that it is possible for there to be unowned land. I was a bit shocked by this, since even if the code were to treat this an an unlibertarian way, one might expect an explicit statement such as any property for which there can be identified no owner is owned by the state; title in all property ultimately traces back to the sovereign (the state); abandoned property reverts to the estate, etc.
In the law, it is common to prove title by tracing it back to the sovereign (the state, e.g. Texas or Louisiana, or the federal government). One can in effect abandon property by actually abandoning it and letting someone else acquire title by adversely possessing it; they would acquire it after a long period of time by acquisitive prescription (10 or 30 years)–see Arts. 3446 (“Acquisitive prescription is a mode of acquiring ownership or other real rights by possession for a period of time”); 3473 (“Ownership and other real rights in immovables may be acquired by the prescription of ten years”); 3486 (“Ownership and other real rights in immovables may be acquired by the prescription of thirty years without the need of just title or possession in good faith”).
Perhaps as a default rule this is reasonable–the nature of the long-term ownership of real property may require that we not presume abandonment unless a long time passes, in the absence of clear evidence; but what if the owner explicitly abandons the property? Why does it need to take 10 years for this to have effect?
Now, granted, if you are going to explicitly abandon it you might as well just convey it to someone; or sign a quitclaim deed [see note 34 of my A Libertarian Theory of Contract for more on quitclaiming]; and in any event a squatter who moves in the next day acquires a type of possession that eventually matures into ownership.)
Still, it is passing strange that the Code does not even seem to contemplate that land could be abandoned or unowned, or indeed that it ever was unowned. Maybe it is too distasteful to explicitly admit that the state has just seized the right to determine these matters.
And, indeed, nothing about this position is particularly different from the position of the free market mutualists. It isn’t about an officially set timeline, it’s about explicit or qualatative abandonment.
Published: August 3, 2009 11:31 PM