Based on a post from the Mises Blog, 5/22/2009 (archived comments below). The original post is somehow mangled and I am unable to edit it. This was based on an email I sent to Tulane law professor Professor A.N. Yiannopoulos,† a legal giant in Louisiana and civil law scholarship, whose brilliant magnum opus, Louisiana Civil Law Treatise, Property, has influenced my own work. Below is an edited version of the note. The notes refer to my friend Greg Rome, a fellow libertarian and Louisiana attorney with whom I co-authored Louisiana Civil Law Dictionary (Quid Pro Books, 2011).
Note: See also Inability to Abandon Property in the Civil Law.
Homesteading, Abandonment, and Unowned Land in the Civil Law
May 21, 2009
We’ve corresponded before, and I believe you know my friend Greg Rome. I wanted to write you regarding some issues concerning the civil code and property, in case you might be interested in sharing any thoughts you have on this matter.
As you may recall, I’m a libertarian and intensely interested in various normative theories regarding property rights, including justifications thereof, Lockean-type homesteading theories, and Austrian economics as related thereto. I have found your own formulations in this regard (e.g. in sec. 1 of your Property treatise)–e.g., your discussion of the nature of property, including its scarcity–to be exquisite and to highlight the essential compatibility of the basic notions of civilian property with the Lockean-libertarian conception thereof, despite the legal positivism and deviations of the civilian system.
I was perusing the Civil Code and your Property treatise recently, and studying in particular issues such as how the code deals with abandonment, acquisitive prescription, petitory actions, and so on. I was struck that I could find nothing about unowned immovable property or acquisition of ownership of same by acts of homesteading. I suppose I had never noticed this before. Were I borrowing from the Civil Code to hammer out a more libertarian-compatible code of a stateless libertarian society, such provisions would have to be added. The code would have to specify that if an immovable is abandoned, it becomes unowned once again (unless possessed by another). And it would specify that someone may acquire ownership of or appropriate an unowned parcel by appropriate acts of homesteading–transforming it, putting up a fence, etc.
But as far as I can tell none of this is contemplated, at least not directly, in the current civil law. In my beginning couple years as a lawyer, 1992-94, I practiced oil & gas law and title opinion type work, before shifting to patent law, and perhaps I’ve forgotten the justification for this, but from what I recall, to prove perfect title you trace it back to a previous owner, all the way back to the sovereign… as contrasted with what you would do in Lockean utopia where you would trace an unbroken chain of title back to some natural person’s act of homesteading of the land in its unowned state.
The code seems not to contemplate even the possibility of unowned land. It seems to presuppose, in legal positivistic fashion, that all title can be traced back to the state; and it seems to leave no room for abandonment of title to immovables–otherwise there would need to be some homesteading provision. It seems to me that acquisitive prescription cannot really be used as a substitute for homesteading, since homesteading need not satisfy the longer time periods and other requirements of acquisitive prescription.
It could be that my practical knowledge is rusty and I am missing something obvious here, but I wonder why it is not an obvious glaring omission that there are no homesteading and related provisions in the code regarding unowned immovables?
I would greatly appreciate any thoughts you might have on this, or pointers as to any further material I could peruse for enlightenment.
See also my comment here, from years ago (1994 or so) (I was using scare quotes even back then):
From the Mises blog:
Yancey– you are right, the state does own our property. I have noted this before in this law review article (endnote 59 or 60),
It is interesting to note one (only apparent, as will be seen below) theoretical difference between the civilian and common law conception of real property ownership, concerning the right of the sovereign (king or state) to ultimate ownership of land. In Louisiana, “Ownership is the right that confers on a person direct, immediate, and exclusive authority over a thing. The owner of a thing may use, enjoy, and dispose of it within the limits and under the conditions established by law.” CC 477. Lands in the thirteen original American colonies were held in tenure, however, with the king as the ultimate lord and owner of the land. CORNELIUS J. MOYNIHAN, INTRODUCTION TO THE LAW OF REAL PROPERTY, 7-8, 22 (2d ed. 1988); see also ROGER A. CUNNINGHAM, WILLIAM B. STOEBUCK, AND DALE A. WHITMAN, THE LAW OF PROPERTY, Chapter 1 (West 1984). “The American Revolution clearly ended any tenurial relationship between the English king and American landholders. Some of the original thirteen states adopted the view that the state had succeeded to the position of the English king as ‘lord’ and that tenure continued to exist, while other states enacted statutes or constitutional provisions declaring that land ownership should thenceforth be ‘allodial,’ or otherwise declaring that tenure was abolished.” Cunningham, et al., at 25 (footnotes omitted). However, “In the remaining states it would seem that lands are still held in tenure of the state as overlord.” Moynihan, at 23. “Throughout the rest of the United States, it seems clear that tenure never existed.” Cunningham, et al., at 25 (footnote omitted).
However, despite this theoretical difference between civilian and common law ownership, at least in some states such as Pennsylvania and South Carolina, Moynihan, at 23, “Even in the states where tenure may theoretically still exist between the state and one who owns land in fee simple, tenure would appear to have little or no practical significance. For all practical purposes, one who owns land in fee simple anywhere in the United States has ‘complete property’ in (full ownership of) the land.” Cunningham, et al., at 25 (footnotes omitted).
It must be pointed out that, in reality, in none of the 50 United States do nominal “landowners” really have “complete property” in “full ownership of” “their” land. To say that land is owned “allodially” is a fiction. For land is subject to expropriation by way of eminent domain. See, e.g., La. Civil Code 2626 [now La. R.S. 9:3176]:
The first law of society being that the general interest shall be preferred to that of individuals, every individual who possesses under the protection of the laws, any particular property, is tacitly subjected to the obligation of yielding it to the community, wherever it becomes necessary for the general use.
Article 2627 [now La. R.S. 9:3177] further provides:
If the owner of a thing necessary for the general use, refuses to yield it, or demands an exorbitant price, he may be divested of the property by the authority of law.
Furthermore, it cannot truly be said that one “owns” property which is subject to divestment if annual “rents” (i.e., property taxes) must be paid to the sovereign for the privilege of retaining possession of one’s property. Tenure, then, exists after all, in all fifty states, and the theoretical difference pointed to above is not really a difference at all.
Published: June 23, 2005 1:16 PM
I never got a reply from Yippy (as some of his students called him), but later I wrote him about a related topic, which I blogged about here: Inability to Abandon Property in the Civil Law. Here is his reply:
Feb. 20, 2010
Dear Mr. Kinsella:
It seems I have been away from my desk too long. I apologize! The matters of abandonment of the ownership of things and acquisition of the ownership of such things have a long history in civil law. One of these years I will ask a student in my Civil Law Seminar to investigate the matter and write a paper. In the meanwhile, let me state my view without citations of authority.
- Following the Romanist tradition, in civil law systems the mode of acquisition of ownership by the mere taking of possession is confined to corporeal movables. Current Article 3412 of the Louisiana Civil Code is in accord. Article 3421 of the Louisiana Civil code of 1870 (controlling French text) must be read together with Article 3421 [?] of the same Code.
- The mode of acquisition of corporeal movables by the mere taking of possession, called occupatio in Roman law sources, applies to things (read: corporeal movables) that have no owner. Things that are lost do have an owner and the law of occupancy does not apply.
- In Louisiana and elsewhere immovables are always owned; therefore the law of occupancy does not apply to immovables. This is a matter of principle that recognizes the State as owner of last resort.
- Whereas corporeal movables can be readily abandoned and become subjects of occupancy, the question of whether immovables can be abandoned has given rise to discussions in civil law jurisdictions. In Greece for example, immovables can be abandoned by authentic act that must be recorded in the appropriate public records. It has been my view that immovables cannot be abandoned in Louisiana. In the first place, to my knowledge, there is no legal mechanism for the abandonment of the ownership of immovables. Second, it would be absurd to saddle the State with liabilities attached to the ownership of immovable. Think, for example, of pollution and need of remediation.
Regards, to both, Greg Rome and you. A. N. Yiannopoulos
I was also good friends with the late Professor Robert Pascal, another influential Louisiana law scholar (see Robert Pascal, R.I.P.; various works linked in Reading Suggestions for Prospective/New Law Students (Roman/Civil law focus) and Book Recommendations: Private, International, and Common Law; Legal Theory). I never knew him while in law school (he was already emeritus) but met him after, visiting him at his home, talking on the phone, and exchanging letters for years, from 1993 to his death in 2018, at the age of 102. I spoke with him on the phone in Nov. 2011 (he was 96, and still very lucid). Here are the notes I shared with Greg Rome at the time:
He liked our Dictionary. In our phone talk I discussed with him how I was perplexed how you could not homestead unowned land in the Civil Code. I said it was only for movables. He insisted it was for immovables too. I sent him a print out of the Civil Code articles showing it’s only for movables. In his reply he admits I’m right but says in the previous code before Yiannopoulos had it amended it, it did refer to land owned by no one. Do you happen to have access to that version of the code or that provision? You can tell he is not happy with what Yippy did. Interesting.
See also Pascal’s letter to me about this matter, which states:
As to our controversy on “occupation of land,” you are right that the current legislation limits occupation to movables. But before the articles were amended, the CC 1870 recognized “land owned by no one” and the possibility of it being occupied. Yiannopoulos is responsible for amending the legislation and giving the State ownership of land not owned by persons. Through him we have moved from Roman Law background to a modern Germanic one. We are not now the better—
In response, Rome sent me “a scan of a page out of my compiled code for [previous] article 3421 [“He who finds a thing which is abandoned; that is, which its owner has let with the intention not to keep it any longer, becomes master of it in the same manner as if it had never belonged to any body.”]. [See also current articles 3412 [“Occupancy. 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.”], 3418 (“Abandoned things. One who takes possession of an abandoned thing with the intent to own it acquires ownership by occupancy. A thing is abandoned when its owner relinquishes possession with the intent to give up ownership.”).] It indicates that the translation from French to English forgot used ‘things’ instead of ‘movable things.’ I have a facsimile copy of an original 1808 digest, and I confirmed that the french version does say ‘chose mobiliére,’ or movable things, while the English translation from the time just says ‘things.'” We looked around the other code articles in that neighborhood and couldn’t find see any other articles about unowned land.
Update: See also Maimonides, “The Book of Acquisition,” Book 12 of the Mishneh Torah, which talks about “ownerless property” but never clearly specifies land or immovables as being unowned and able to be homesteaded. E.g., it says, in Chapter One of the Hilchos Zechiyah uMattanah:
- Whoever takes hold of ownerless property acquires it. Any objects found naturally in deserts, rivers and streams – e.g., grass, trees, wild fruit and the like – are ownerless. Whoever first takes hold of such an object acquires it.
But these are all movables.
Later sections recognize ownership of land, but doens’t seem to contemplate it ever being unowned:
7. The following laws apply when there are two fields in an estate that belong to a convert, with one boundary marker between them. If a person manifests ownership over one of the fields with the intent of acquiring it, he acquires it. If he manifests ownership over it with the intent of acquiring both it and the other field, he acquires the field over which he manifested ownership, but he does not acquire the other field.
If he manifests ownership over one field with the intent of acquiring only the other field, he does not acquire either of them. He does not acquire the field over which he did not manifest ownership because he did not manifest ownership over it. He does not acquire the field over which he did manifest ownership because he did not manifest ownership with the intent of acquiring it.
If he manifests ownership over one field with the intent of acquiring it, the other field and the boundary marker between them, or if he manifests ownership over the boundary marker with the intent of acquiring both fields, there is an unresolved doubt with regard to the matter. If another person comes and manifests ownership over one of the fields itself with the intent of acquiring it, the latter person becomes the legal owner.