Re: Abstract forms of property

Michael S. Lorrey (
Fri, 15 Jan 1999 10:57:48 -0500 wrote:

> Mike Lorrey writes of the spectrum allocation issue:
> >Well, the original point of debate regresses back to the original land
> grants.
> . . . 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.

Even during the colonial times, the settlers, as serfs/vassals of a sovereign in a feudal system, required land grants from their sovereign to posess good title to the land they settled. While frequently, they had occupied the land first, built a cabin and cleared a field, etc. then put in for a grant as recognition of their posession, mainly due to the slow speed of communication in those days. However, minor grants for homesteads were granted by the colonial governors of the various colonies. The grants for the colonies as whole entities were themselves granted by the monarch

Natives which did not have recognisable legal systems to adjudicate property rights tended to get walked over, while those that did fared better. The Iroquois Confederacy is a notable example, as were the Cherokee. The Iroquois had a preexisting system in place when the white man came, while the Cherokee developed one/mimicked one to try to adapt, with predictably different outcomes.

> 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.

Yes, this is definitely true, however, this is presupposing that the new owner has some sovereign enforced venue to ajudicate his or her claims.

> 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.

Yes, one could argue that since Westinghouse was the first 'occupier' of the radio spectrum, that it should be the sovereign power in that 'land', except that Westinghouse only existed as a corporation granted a charter by the US and a US state, much like Hudson Bay Company and the East India Company were granted charters by the English monarch.

I think we need to research the history of areas settled by colonization that established independent self governance without any granting by outside sovereignties.