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A TREATISE

ON

STATE AND FEDERAL CONTROL

PERSONS AND PROPERTY

IN THE

UNITED STATES

CONSIDERED FROM BOTH A CIVIL AND CRIMINAL STANDPOINT.

BY

CHRISTOPHER G. TIEDEMAN, LL.D.,

Author of treatises on “Real Property,” “Commercial Paper," "Sales,"

“Municipal Corporations," “ Bills and Notes," etc.

VOL. II.

ST. LOUIS:
THE F. H. THOMAS LAW BOOK CO.

5 641

Entered according to Act of Congress, in the year 1900, by

C. G. TIEDEMAN, In the Office of the Librarian of Congress, at Washington.

St. Louis, Mo.:

CHAPTER X.

STATE REGULATIONS OF REAL PROPERTY.

SECTION 133. What is meant by “private property in land?"

134. Regulation of estates - Vested rights.
135. Interests of expectancy.
136. Limitation of the right of acquisition.
137. Regulation of the right of alienation.
137a. The right of testamentary alienation and intestate suc-

cession - Taxation of inheritances.
138. Involuntary alienation.
139. Eminent domain.
140. Exercise of power regulated by legislature.
141. Public purpose, wbat is a.
142. What property may be taken,
143. What constitutes a taking.
144. Compensation, how ascertained.
145. Regulation of the use of lands - What is & nulsance?
146. What is a naisance, & judicial question.
147. Regulation of unwholesome and objectionable trades.
148. Regulation of mines and mine products.
149. Regulation of burial grounds.
150. Laws regulating the construction of wooden buildings.
161, Regulation of right to hunt game and catch fish.
162. Abatement of nuisances — Destruction of buildings.
163. How far the use of land may be controlled by the require-

mont of license. 164. Improvement of property at the expense, and against the

will, of the owner. 168. Regulation of non-navigable streams — Fisheries. 166. Conversion of non-navigable into navigable streams. 167. Statutory Hability of lessors for the acts of lessecs. 158. Search warrants. 159. Quartering soldiers in private dwellings. 160. Taxation, kinds of. 161. Limitations apon legislative authority.

§ 133. What is meant by “private property in lands ? ” — An accurate answer to this question is exceedingly important, because attacks have repeatedly been made

upon the existing land tenure of England and the United States by political economists, as being the chief cause of human woes; and promises are made of the advent of an era of universal prosperity, only a little short of millennium, if private property in land be only abolished. The latest writer upon this subject, Mr. Henry George, has created no little stir by his vigorous attacks upon private property in land, and has succeeded, in no small degree, in unsettling preconceived notions of the right to own land. Our interest in this connection, as a jurist and a student of police economics, lies chiefly in Mr. George's conceptions of the existing law of real property, and the meaning he and other political economists attach to the phrase "private property in land.” If we have not mistaken the writer's main idea, it is no less and no more than what is set forth by Mr. Herbert Spencer in bis Social Statics,' with a greater display of rhetoric, however, and an elaborate scheme for the confiscation of the so-called “ private property in land.” Both writers present their views under the impression that the existing law recognizes an absolute right of private property in land, and they both propose that this private property be abolished, and land become the common property of all, of the State or society.

Mr. Spencer's entire argument is based upon his first principle of sociology : “ Every man has freedom to do all that he wills provided he infringes not the equal freedom of any other man,” and in applying this principle — which we most hearily indorse as the ruling principle of police power in the United States, and the necessary fundamental principle in every system of sociology in a free State - to the right of property in land, he maintains that no one " may use the earth in such a way as to prevent the rest from similarly using it; seeing that to do this is to assume

I pp. 130-144.
? See ante, secs. 1, 2.

greater freedom than the rest, and consequently to break the law.” Both writers maintain that land is the free gift of nature, and must ever remain the inalienable property of society. But Mr. Spencer, readily perceiving the practical objections that might be raised to his scheme of a common property in lands, if left unqualified, proceeds to deny that we must, as a result of a common property in lands,“ return to the times of uninclosed wilds, and subsist on roots, berries and game.” In further explanation of this scheme he says: “ Such a doctrine is consistent with the highest state of civilization ; may be carried out without involving a community of goods; and need cause no very serious revolution in existing arrangements. The change required would simply be a change of landlords. Separate ownerehips would merge into the joint stock ownership of the public. Instead of being in the possession of individuals, the country would be held by the great corporate bodysociety. Instead of leasing his acres from an isolated proprietor, the farmer would lease them from the nation. Instead of paying his rent to the agent of Sir John or bis Grace, he would pay it to an agent or deputy agent of the community. Stewards would be public officials, instead of private ones ; and tenancy the only land tenure.". Tersely stated, Mr. Spencer's idea is that all men must become tenants of the State or of society, and must pay rent to the State for the exclusive use of the land. Mr. George's proposition is essentially the same. He says: “I do not propose either to purchase or to confiscate private property in land. The first would be unjust; the second needless. Let the individuals who now hold it still retain, if they want to, possession of what they are pleased to call their land. Let them continue to call it their land. Let them buy and sell, and bequeath and devise it. We may safely leave them the shell, if we take the kernel. It is not necessary to confiscate land; it is only

i Social Statics, p. 141.

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