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Libertarian Answer Man: Radioactive Waste and Negligence

I was sent this query:

I have a question about a situation. Suppose person A buried radioactive waste in an area where no house was built. A month later, person B builds a house in the area, lives in it, and suffers radiation damage from the radioactive waste in the ground. Is this a crime in your view? Has A committed a crime of negligence here since he unintentionally caused damage to B?

My answer:

I would think this would have to be handled by prevailing norms, customs, developed case law, and a trial to settle the matter, so it’s not always clear we can be armchair theorists and deductively decide everything. (On the limits of armchair theorizing, see Kinsella, “The Limits of Armchair Theorizing: The Case of Threats,” Mises Economics Blog (Jul. 27, 2006); also idem, “Knowledge, Calculation, Conflict, and Law,” Q. J. Austrian Econ. 2, no. 4 (Winter 1999): 49–71, the section “Abstract Rights and Legal Precepts” and the following section; and “Stephan Kinsella on Libertarian Legal Theory, Self-Ownership and Drug Laws,” The Daily Bell (July 20, 2014). The latter two articles will appear in revised and updated form in Legal Foundations of a Free Society (forthcoming 2023).)

Your sparse example does not give much context, but in a real trial or case, the actual facts could be brought to bear.

But if you are asking me to hazard a guess—I suspect the common law doctrine of “coming to the nuisance” would emerge in a libertarian society’s legal system. The way to look at it would be if this is unowned land, then when A buries the waste, he is homesteading that area for the purposes of waste burial, including any easements on surrounding areas to “emit radiation.” So we could imagine A owns the transformed land outright and has an easement to emit radiation, extending even beyond that. So when B homesteads the plot of land in the affected area, he takes it subject to A’s easement. The common law would call a similar result coming to the nuisance. You can google it.

Hoppe has a somewhat similar hypo when he discusses a group of people in a village who regularly use a public street and a path to the lake. No one owns the street or path, but the users establish a use-right, an easement. So if later someone privatizes the street, the previous users’ easement has to be respected. That is, the new owner takes the street subject to previous encumbrances. See The Great Fiction, ch. 5, “Of Common, Public, and Private Property and the Rationale for Total Privatization,” Part II.

Same in your hypo with B.

If A and B are neighbors and then A starts doing dynamite testing etc., and disturbs B’s use of his property, this could be viewed as a type of trespass, or more likely nuisance. See also on this, Rothbard on how he deals with air pollution: Economic Controversies, ch. 20 on air pollution. See the examples on pollution, and airport noise, etc. As he writes:

Most of us think of homesteading unused resources in the old-fashioned sense of clearing a piece of unowned land and farming the soil. There are, however, more sophisticated and modern forms of homesteading, which should establish a property right. Suppose, for example, that an airport is established with a great deal of empty land around it. The airport exudes a noise level of, say, X decibels, with the sound waves traveling over the empty land. A housing development then buys land near the airport. Some time later, the homeowners sue the airport for excessive noise interfering with the use and quiet enjoyment of the houses.

Excessive noise can be considered a form of aggression but in this case the airport has already homesteaded X decibels worth of noise. By its prior claim, the airport now “owns the right” to emit X decibels of noise in the surrounding area. In legal terms, we can then say that the airport, through homesteading, has earned an easement right to creating X decibels of noise. This homesteaded easement is an example of the ancient legal concept of “prescription,” in which a certain activity earns a prescriptive property right to the person engaging in the action.

On the other hand, if the airport starts to increase noise levels, then the homeowners could sue or enjoin the airport from its noise aggression for the extra decibels, which had not been homesteaded. Of course if a new airport is built and begins to send out noise of X decibels onto the existing surrounding homes, the airport becomes fully liable for the noise invasion.

It should be clear that the same theory should apply to air pollution. If A is causing pollution of B’s air, and this can be proven beyond a reasonable doubt, then this is aggression and it should be enjoined and damages paid in accordance with strict liability, unless A had been there first and had already been polluting the air before B’s property was developed. For example, if a factory owned by A polluted originally unused property, up to a certain amount of pollutant X, then A can be said to have homesteaded a pollution easement of a certain degree and type.

Given a prescriptive easement, the courts have generally done well in deciding its limits. In Kerlin v. Southern Telephone and Telegraph Co. (1941), a public utility had maintained an easement by prescription of telephone poles and wires over someone else’s land (called the “servient estate” in law). The utility wished to string up two additional wires, and the servient estate challenged its right to do so. The court decided correctly that the utility had the right because there was no proposed change in the “outer limits of space utilized by the owner of the easement.” On the other hand, an early English case decided that an easement for moving carts could not later be used for the purpose of driving cattle.

Unfortunately, the courts have not honored the concept of homestead in a noise or pollution easement …

In some cases, however, the courts have held or at least considered that by the plaintiff’s “coming to the nuisance,” he has voluntarily entered a pre-existing situation, and that therefore the defendant is not guilty. Prosser states that “in the absence of a prescriptive right the defendant cannot condemn the surrounding premises to endure the nuisance,” but our whole point here is that the homesteader of a noise or a pollution easement has indeed earned that right in cases of “coming to the nuisance.”

Hope this helps.

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