Re: POLI/ECON: 19thC soot and takings

Pat Fallon (
Sat, 4 Jan 1997 14:41:37 -0500

>The Low Willow wrote:
>> On Jan 1, 9:14pm, Michael Lorrey wrote:
>> } onto their crops, and some sued, claiming an unconstitutional "taking".
>> } The court at that time ruled that while the pollution damage WAS a
>> } taking, the positive economic benefits of industrialization outweighed
>> } the damage incurred.
>> Do you have a source?
>i read it in one of the Libertarian books available through the LP.
>Can't remember the name though.
> Michael Lorrey
>Northstar Technologies Agent
>Inventor of the Lorrey Drive

I think the passage referred to is from "For A New Liberty", by Rothbard,
but I don't have it in front of me. I do have a copy of "TANSTAAFL, The
Economic Strategy For Environmental Crisis"(pg. 37), by Edwin G.
Dolan,though, and it has a pertinent quote:

"The second example for pollution control via the law of property has to do
with the obscure corner of the legal system known as the law of nuisance. In
our system property ownership includes the right to use free from outside
interference, as well as the obligation to use is such a way as not to
injure others. Unfortunately, our system for enforcing the first right is
faulty. Our laws work pretty well in the area of private business. If you
build a barbecue in your back yard, and the smoke blows over and ruins the
flavor of the cupcakes naked in the bakery next door, chances are you will
be sued and have to pay damages. These damage payments, or the threat of
them, put a price on pollution for you and deter you from building the
barbecue of using it as often as you otherwise would.

In the area of law known as public nuisance, however, the system does not
work nearly as well. If the previous example is changed so that you are
building a steel mill, and causing damage not only to your neighbor but to
all the inhabitants of a forty-mile radius, you might imagine that the
threat of suit and the imposition of damages would be still greater than
before. But it is ,less! This is because only an agency of the government
is empowered to sue for public nuisance. An individual cannot initiate a
suit unless he can show special damages concentrated upon him alone...It is
as if the law allowed you to defend yourself against a mugger who attacked
only you, but did nothing to help if he robbed just a little from everyone
in your neighborhood!"

Pat Fallon