Re: Abstract forms of property
Thu, 14 Jan 1999 14:00:23 EST

Mike Lorrey writes of the spectrum allocation issue:

>Well, the original point of debate regresses back to the original land
. . . Since electromagnetic spectra were not seen as a form of property
>(or even to exist) until after many of these grants were made,
>it follows that all grants but those which were blanket grants of
>sovereignty . . . retained such rights to the sovereign power, i.e. the
>federal or state government.

I think that the argument errs on two counts. First, it presumes that statists have rights to the property they claim, usually by merit of having stuck a flag in some corner of a continent or watershed. Contrary to that, I would argue that property rights in land follow from possession and improvement--usually the province of native peoples or of incoming settlers.

Second, though relatedly, the argument overlooks the doctrine of adverse possession. Even assuming that statists could obtain good title by mere claim, they would under general principles of common law lose that title to anyone who possesses a piece of property for seven years without objection or interference. In brief, mere claims to property do not suffice to retain ownership. If you fail to police your property, you can lose it to someone who will put it to good use.

Now, as I've argued, I think it unwise to treat the spectrum like real property. But even if you do, and even if you think federal authorities can establish good title to the spectrum by mere fiat (another dubious proposition), the feds will in many cases lose that title due to the peaceable use of the spectrum by private citizens.


T.0. Morrow