Hi guys. Although this certainly seems like a no-win kind of topic, it’s just too good not to chime in. The private property rights issue seems composed of two components: harm and access.

If I own a piece of property, our private property rights understanding, whether it is legally correct or not, seems to be that I can do whatever I want to or with my property. I should be able to clear cut all the trees off it and turn it into cash if I wish. I should be able to plow and cultivate the land right up to the river banks and grow crops or whatever activity I wish. I should be able to cut all the vegetation along the riparian zone so that I have a nice clear view of the river or lake that I bought this property on. Oh, and while I’m at it, I should be able to riprap the bank because now it’s eroding due to my land clearing action. And I should be able to plant grass and apply pesticides and fertilizer to my waterfront yard so it will look like a golf course, and my friends and I can practice our putting. And of course I should be able to graze my livestock to and into the riverbanks and water’s edge for stock watering. I should be able to do all this in the name of private property rights. And to the extent I cannot do any of these things, I should be compensated for unlawful takings.

Uh, let’s see here. A well regarded president, name of Honest Abe, said something like, “your right to extend your arm and fist ends where my nose begins.” If there’s truth to such a statement, and who could deny it, one person may not exercise his rights (property or otherwise) to the detriment of another man’s rights. So let’s say you own the river or lake in question. If the Abe analogy is correct, then I may only perform the actions of the above paragraph on my property to the extent that they do not harm your property. The difference in this case is that the river and lake are public, rather than private, property, known as the commons. However, is there any real difference? If I damage my neighbor’s property, I am liable for damages. If by grazing my livestock, clearing the riparian zone, or clearcutting my trees, would I not likewise be liable for damages to public property? Why should it matter whether my neighbor is public or private?

There is an interesting aspect of private property in timber rights in our state. If while I am cutting some trees on my land, I notice that there are some fine and valuable trees on my neighbor’s adjacent land, and I cut and sell them also, when my neighbor catches me, he is entitled to triple damages! This is an old law that has been around for many decades to discourage timber poaching from public and private land. And it is highly effective. Imagine now, how much better a land steward I would be if I were to be assessed triple damages for all the adverse effects of my private actions on my private land that damaged water quantity and quality and reduced fish runs by damaging habitat from careless timber harvesting, poor streambank management, a yard and putting green in the wrong place, and unsound livestock and agriculture practices. (Never mind for the moment that it's exceedingly difficult to quantify that damage.) People yowl about their private property rights, as though that doesn’t or should not also include the inherent responsibility to avoid damaging other property, both public and private.

If my land management action causes the creek to sluice out and dump tons of sediment and gravel on your downstream land, degrading habitat and killing public fish in the process, wouldn’t you like to be able to tell me to bring my truck on down, pick up my sediment and gravel, and haul it back up to my land where it came from. Now we all know that erosion is a natural process that no one can stop. However, should I be allowed to permit sediment to run off my land onto yours, or the public’s, at accelerated rates that greatly exceed that which would occur with only natural processes at work? This seems to me to be the salient private property rights question. Do my private property rights include the right to exceed the rate of natural processes and damage other property, public and or private, in the process?

Now, what about access? Do I have to allow you on my property? Maybe that’s not a yes or no question. I’m sure I don’t have to allow you on my property for the purpose of accessing my property. But let’s look at a “for instance.” There are private land inholdings in national forests, national parks, and state forests. In all these cases, the public owner must provide reasonable access to those inholdings to the private landowner. I don’t know if that’s logical, but it seems reasonable to me. That’s not the same as building and maintaining a road, or even a trail, but reasonable access. So if there is a road, they may drive; if a trail, they may walk; if neither, they may bushwhack. But access is not denied.

So what about when the inholding is public property surrounded by private land? That’s what seems to be happening more and more these days. I’m familiar with a small lake, wherein a small group of people purchased roughly the entire 200' perimeter around the lake plus an access road. This is all posted. There are homes and cabins on part of the lakeshore, but by no means all of it, as much of it is not suitable for any development. Tell me that the purpose of such an arrangement is anything other than to make a private lake out of what is by law a public lake bed and public water. The public owners of the lake are denied access to it. If what these owners are doing is legal and just under the banner of private property rights, it must follow that it would be equally legal and just to deny access to private inholdings that are surrounded by public land. I mean, come on, life is a two way street. The private property advocate should not be able to have it both ways. Either you can purchase access and deny others their property rights, and they can do so to you, or not. Restated, it should not be, “I can deny the public, but the public cannot deny me.” I find that twisted logic, yet it seems to be the battle cry of many of the private property rights advocates. Sort of a heads I win, tails you lose, kind of proposition. Cool, huh?

I can’t afford waterfront property on every river I want to fish. And I want to fish more than one or two spots on any water body that I may own property on. I acknowledge your right to exclude me from your property for the purpose of using your property. However, I am having a problem with a perceived right to deny me access to the public waterway that you, I, and everyone else owns. It’s true that there are public access points on many rivers, but there are many, perhaps more, that do not. Lacking some sort of reasonable access policy, citizens may be denied access to the public property of which they are part owner. Since the private inholder would not tolerate denial of access to his inholding, why must the public tolerate denial of access to the property they own in common with everyone?

I don’t think there are any easy answers to this situation. Tolerance and respect are words that come to mind. As access becomes more limited as people purchase what was once farm or timberland and post their personal 50 or 100' of aquatic paradise, we see increasing traffic on public waterways: jet boats on small rivers that can accommodate driftboats, driftboats on rivers that barely accommodate canoes and innertubes, and pontoon and other small craft of tiny streams where anglers formerly gained access by wading. With an ever growing population and demand for recreation, and ever diminishing public access to waterfront, how shall we manage peoples’ private and public property rights?

Sincerely,

Salmo g.