Property Rights

Who Owns It?


A resource can become private property if the owner uses the resource and transforms it through human knowledge and effort into another entity of value to him. Essentially, what he owns is the product of his work—he may use the previously unowned resource as an ingredient in the final product, but he owns only the final product—that which he has created by his own effort.


1. A man owns a farm—the result of his productive efforts at cultivation, irrigation, harvesting, etc. The farm's existence is only possible given the existence of the land, so the land has become an integral part of the new entity called the farm, and as such belongs to the farmer. He does not own the land just because he was the first one to say "I claim it," but because it is now part of a new entity which he produced.

2. A man owns a tank of compressed air which he obtained by pumping atmospheric air into the tank. The atmospheric air is a resource which he used in producing the new entity ("tank of compressed air"). He did not own the air in its free state, but he owns the product of the resource and his effort.

3. A man owns an airplane "corridor" between two cities. He does not own the whole sky, but he can own what he has created with part of the sky—in this case a carefully outlined and monitored corridor in which planes can fly safely and efficiently from one city to the other.

4. A man owns an ornament he made from a piece of driftwood he found on the beach. In this case his only effort was to move the driftwood into his house, but he has still created another entity, an ornament, from a resource. He has moved the resource to a place of higher value and can own the product of the resource and his effort.

5. A man owns a 2×8 board he cut from a tree. He didn't own the previously unowned tree until he converted it into a board.

6. A man visits Antarctica (assume for the time being it is unowned). He decided to make 3,000 acres of it into a game refuge and park because of its extreme beauty. He can now own this park, which is comprised of the land plus the results of his efforts at making it accessible, attractive, ecologically stable, etc.

How can this principle be used to delineate whether pollution of a resource amounts to a violation of property rights?

If a person allows a substance he has made with a resource or a product bought from another to travel accidentally or on purpose to the person or property of another causing harm to that person, he should be held responsible for the damage and compensate the other person for his loss. Whether the polluter personally delivers the damaging substance or lets it be carried by natural forces, it still represents the initiation of force against the aggrieved party.

If a person allows a substance to travel to a previously unowned resource, thereby destroying or damaging that resource, he is not liable to anyone since no individual property rights have been violated. However, if the resource is later claimed, the polluter would then be responsible for any further damage to the now-owned resource.

Going one step further, a person who implicitly depended on the continued existence of the unpolluted resource discussed above, but did not take the effort to own that resource, would simply be out of luck (literally) if that resource became polluted. Although he used natural products of the resource (which he'assumed would be continually available), he did not own these products until he used them in his work. Their destruction before the time when he can use them therefore does not violate his property rights.

Applying this to air pollution, it can be seen that air in general today is an unowned and uncontrolled resource. When a person deliberately transforms it by cooling, heating, compressing, or purifying it, he owns it. It is that product which from that time forward must not be polluted and damaged. Free air—uncontained and completely under control of natural forces belongs to no one, and so polluting it cannot be construed as destroying someone's property.

There is a sense, however, in which pollution of a resource does violate rights. If the pollution by itself or under the influences of natural transporting forces causes damage to life or property, a liability is incurred as earlier mentioned. If the polluted resource is used in such a way as not to establish ownership it is the user's worry. This, because those who use the polluted resource never had a right to expect that the unowned resource (clean air, clean water, etc.) would be available free, forever.

Clean air would then most likely be available, but at some real cost (to pay for filtering, etc.). When a person uses an unowned resource, he does so at his own risk; he may take what's there, but he cannot demand that he be provided with exactly what he needs. He has made no contracts with other men to insure the delivery of what he needs, and so cannot hold other men responsible.

I will now cite a couple of examples to show how these concepts could be applied to today's problems.

Automotive Pollution
Automobile owners would be liable for all damages directly caused by the pollution of the engines. A scale of damages vs. the amount of pollutants emitted would probably be set up when citizens were allowed to sue drivers for contributing to disease caused by smog, e.g. eye-burning, cancer, respiratory disease, skin disease. Both civil and criminal suits could be brought against automobile operators, airlines, trucking firms, etc., for real property damage such as blackening of houses, dirtying of office buildings, corrosion of materials, etc. Damages would be awarded to the extent the problem was caused by pollution, and would be paid by those emitting the destructive pollutants. There would soon be a race, I predict, among auto manufacturers to develop non-polluting equipment.

Operating costs for automobiles, trucks, etc., would then reflect the real cost of operation since they would be borne solely by owners and operators. Currently part of the cost is being forcibly extracted from innocent people in the form of bodily and property damage.

Note that if there should come a time when oxygen concentrations in cities should fail because of high usage, no damages could be awarded to those people unable to function successfully on account of it. There is no guarantee that an unowned resource will last forever in specific concentrations. Damages could, however, be levied on persons producing pollutants such as excess CO2 (over that amount normally contained in the atmosphere) if those pollutants caused damage. Incidentally, as oxygen became a scare resource it would became a saleable commodity and sold at a price just like other scarce commodities (such as spring water, beef, vegetables and penicillin today). Perhaps cities would be covered over with domes and their atmospheres carefully controlled by individuals who would then sell to the occupants the air they needed at the purity levels they desired (for a profit of course), perhaps even at the temperatures which would be more inviting to potential occupants. In such a city uncontrolled pollution would, cease to be a problem, because pollution of anything but the air a customer bought would represent an obvious violation of the atmosphere-owner's rights to his property (the rest of the contained atmosphere).

River Pollution
Water polluters would be essentially free to pollute unowned water as long as their pollutants did not seep into other people's property, causing damage. From a practical standpoint, though, it would be a very risky business to pollute (air or water) because of the lack of control one has over where the pollutants go. At present natural forces are very powerful relative to those capable to man, and are also relatively unpredictable. The myriad of suits the polluter would be subject to for damages such as to crops on nearby farms and fish kills would represent strong deterrence (if he hadn't scruples about killing fish and food). In the case of rivers, if property rights were correctly identified to include the riverbed plus the water contained therein, this problem wouldn't even come up. River edge polluters would be damaging the river-owner's property and would have to pay him compensation (or stop). Since there would be tremendous capital tied up in the river, the owner would be forced to think not only of immediate profits but also of the future value of his investment: is a polluted river ever as valuable as a clean one?

I maintain that the problem of pollution is one essentially of the social/political system not having adequately identified and protected property rights. Crucially needed today is the proper definition of property rights with regard to natural resources—something which has been dealt with dismally by the present system of government-by-edict. The present trend in government to allow each person "his share" of pollution into air or water is not only arbitrary, but also impractical and grossly unfair to the persons hurt by the pollution.

I'm hoping that this general discussion of resources, property rights, and pollution will spark some rational thinking on the issues. •

A friend in deed: notes on how private property is going to save the earth and all like that
Mr. Weigl is wrong. He is perhaps correct in general emphasis but wrong in particulars and applications. Sure, cultural recognition that property is a necessary and desirable state of affairs would represent the major step towards achieving ecological stability, but on the basis of the limited material available concerning what constitutes true property we can expect not only continuing warfare waged on the biosphere, but endless battles among men (just like today). I'll admit to not having done the required research to see what the most advanced studies in criteria of ownership have to say (and I invite readers to send me anything they might have come across), but I think I'm safe in saying that Mr. Weigl's analysis represents about the general level of ecological finesse in the libertarian movement. Well, libertarianism deserves a better defense than this. If Murray Rothbard's woefully inadequate ecology article in the February issue of the Individualist is any indication of the level of scholarly inquiry on the subject, we're in trouble.

Starting off as it does with a reminder how America is ruled by anti-intellectual fads, one might think the doctor means to deny that a ghastly quantity of non-self-destructing herbicides, pesticides, and fertilizers is collecting in America's water tables where it will slowly seep towards the sea and its delicate covering of plankton. I hope not; garbage in the streets is decidedly not what the sensible among the environmentalists are concerned about. Easy enough to knock the anti-technology freaks; their case is all wind and hatred and confusion. But what about the ecologists' more central consideration—that the (present) need for a properly functioning biosphere makes essential some system that will prevent men from acting in such ways that upset the balance, regardless of whether or not the materials they manipulate are their "property" or not.

What I wish to know—and welcome letters to the editor and articles on the subject—is this: what do we mean by the term "property." What are the criteria for ownership, with particular notice to be placed on the fact that nearly everything on the globe has been "owned" (claimed) at least once and that much of the current distribution of natural resources is the result of extensive theft. (In other words, "first come, first served" is not sufficient enough a principle to answer the question.) If I "own" a forest, do I have the right to cut down my trees even if this will alter the watershed and destroy my neighbor's corn crop? If I don't have such a right, then can it truly be said that I "own" the forest, or should it be said that I actually own certain aspects of that forest and thus derive the right to use the forest only in ways that do not violate the rights of others? Most environmentalists seem to make the case against property through confusions such as this one, and it behooves the libertarians in the ecology movement to set the issue straight. No one else in America has the Austrian economics background to do it.

Changing the watershed running over my neighbor's land is almost analogous to my shooting him with a pistol. Only the weapon is different. Non-libertarian ecologists seem to be saying that since my gun can be used for harm, I shouldn't be permitted unqualified ownership, as if ownership somehow included the right to indiscriminately kill. Ridiculous.

According to the coercive environmentalists, laws should be passed so that the community can restrict the actions of individuals with regard to their property, as if the "community" could somehow be trusted to be more sensible than the individuals comprising it. (The opposite is empirically the case.)

Well, the only difference between the gun and the forest is that one isn't (usually) manufactured—a forest grows wild. But this doesn't change the issue, I believe.

Now to Mr. Weigl's contentions about ownership of the air. I can show some flaws—or at least problems—in his analysis.

Libertarians have developed two ways to view air in discussions: first as a medium in which transgressions occur (ownership is largely irrelevant); second, as a material for which property claims must be established before any meaningful discourse of transgressions can take place.

Let's explore each of these. As Robert Poole points out in his feature article, it hardly matters whether you kill a man with lead particles a quarter of an inch in diameter (bullets) or ones a mere molecule in diameter (leaded gasoline fumes). The effect, in ultimate terms, is the same: death. It should be noted, though, that ownership of the air is still not irrelevant. If I choose to accept work in a mine that extracts cartheogenic materials it is my worry if I contract disease. The air in the mine shaft is presumably the mine owner's, to do with as he pleases, and therefore filling it with poisons is not wrong, so long as no one is forced to work down there (and even then the evil is not the poison, but the force).

For another example where ownership of the air (or, rather, a physical space someplace above the surface of the earth, defined by latitude, longitude, and altitude) would determine whether or not a transgression has occurred, take flight paths. If it is legitimate to claim ownership and prohibit unauthorized entry and usage, then if I were to fly my lightplane into the glidepath of the local jetport and was then subjected to jetwake and crashed, it would have been my own fault. I, not the pilot of the jetliner, was the aggressor.

So, it seems that while the view of air as a medium of aggression is useful, it is not always sufficient. The view of the air as an economic commodity, while itself not enough alone, appears necessary to complete the analysis.

Let's play with Mr. Weigl's criteria for ownership of the air for a bit and see what happens. He says: "When a person deliberately transforms it by heating, cooling, compressing, or purifying, he owns it." Such as breathing? Does Mr. Weigl contend that the first man to breath many years ago became owner of the atmosphere? He altered its chemical composition in only a very small way, but he did alter it. More CO2, water vapor, and heat.

Consider the contradiction in Mr. Weigl's notions. On one hand, he claims that men are morally free to pollute (i.e., alter) natural resources unowned by others; yet on the other hand, he claims such alteration represents the basis for a claim to ownership, indeed that such alteration is ownership.

Part of the responsibility of ownership includes that of seeing that one's property, which metaphorically becomes an extension of self, does not injure others. If you claim ownership of a rock perched at the top of a cliff overlooking a mountain pass, its now your responsibility to see that it doesn't fall off.

The same principle should apply to owned gases—shouldn't it? People aren't supposed to abandon their cars just anywhere. Either they sell them to a junk dealer (and the responsibility becomes his) or they discard them somewhere way out in the woods where they can cause no one harm. Now how about gases (or suspended particles) which, even though they will disperse, may still reach relatively high concentrations in areas of heavy emission (city auto pollution), or may be reconcentrated by the food chain?

Mr. Weigl says we are free to breathe all the air we like but we shouldn't expect, say, the oxygen percentage to remain at its present level. We don't own the oxygen, so we can't demand that others refrain from using it, his argument goes. But in as much as most of the major uses of oxygen I know of convert the element by connecting it to other elements in usually toxic compounds (CO2, SO2, etc.), his distinction seems a pointless one. If oxygen concentration (percentage) ever does show marked decrease on a global scale, it certainly won't be only because there is less oxygen, but because some other gas is being generated and released to the atmosphere.

By Mr. Weigl's conceptions of property rights, the fact that billions of men have breathed the air for how ever many thousands of years does not constitute sufficient basis for a valid claim to ownership. Let's take that contention and another one—that alteration is ownership—to their logical extreme. Suppose I developed a super-super bomb of a very unusual nature, one that in detonation consumed all the plant's oxygen instantaneously. Just suppose that.

Would it be okay for me to set off the bomb? By Mr. Weigl's conceptions, the answer would be yes. (Correct me if I've misinterpreted you, Jim, won't you?) The only difference between my example and the ones Mr. Weigl probably has in mind is the time elapsed. Am I wrong in assuming that this factor (time) is irrelevant in the working of the (so called) moral principle involved?

What I'd like to know is this: is it possible that Mr. Weigl has overlooked some important principle of communal or implicit ownership (or whatever)? The question is extremely important for it is applicable to a broad range of matters being brought up by environmentalists: fish kills, plankton slaughter, water table pollution, food chain alterations, etc.

Property rights, I believe, if they are to mean anything at all, must be framed in the context of the most advanced understanding of ecological processes. —Ed.