Morris: A Property Rights Saga

May 21, 2018

by Leo Morris

Both ends of the alley behind my house were blocked one day last week. It annoyed me no end. But it also set me to thinking about the need to vigorously defend our private property rights even as we acknowledge the proper place of public property in the grand scheme of things.

I dare not park in front of my house. My street is one-way east from a popular drinking spot. My house, in about the middle of the block, is where drivers with a snootful typically lose control, and I used to lose my driver’s-side mirror about twice a year. The city could quickly remedy the situation by making my street one-way west and reversing the direction of the next street over, which is now the one-way west one. But that would be too easy.

So I started parking in back, in a little corner of my yard. And the city threatened me with penury-inducing fines, to be accumulated one day at a time, for creating furrows that could hold water that would breed mosquitoes that could carry diseases sufficient to end civilizations as we know it.

I was required therefore to lay down a small driveway of crushed limestone in my yard, which I did. Now I can happily park behind my house.

Except for that one day last week. To the east of my house, a truck was parked for the benefit of people spring-cleaning their house. To the west was another truck that was being filled with dead tree limbs, brush and other yard detritus. My little parking spot was unreachable.

I could have called the city, but the trucks would probably have been gone by the time someone answered the complaint, and anyway it would have created hard feelings among my neighbors. Besides, the alley is public property, just like the demolition-derby course in front of my house, which means the city controls its use.
And it actually encourages the nonsense I had to endure. According to the city code, it is unlawful to deliver goods to the front door if there is adequate alley access in the back. The code does not say, “. . . except that two trucks may not be deployed at the same time, depriving Leo Morris of his parking spot.”

The city also controls the sidewalk in front of my house and the tree lawn between the sidewalk and the street, which means they are “public property,” i.e., controlled by the government for the benefit of all the people. I don’t know what benefit “all the people” get out of my tree lawn, unless they’re having picnics there at 2 o’clock in the morning so they can watch the drunks weave their way home, but that’s my problem.

City ownership does not mean I can wash my hands of those assets. Under the law, I am required to keep the sidewalk clear of snow and other impediments to pedestrian traffic, and if someone trips over a root on the tree lawn, I can get sued. And there is such a thing, I discovered shortly after buying the house, as Barrett Law, which means the city can decide to install or repair something near but not on my property and bill me for a good chunk of the work.

It can be tricky, separating what is public from what is private, and you can find examples of it being handled both well and poorly in Indiana.

The best example of a sensible demarcation came from the Indiana Supreme Court, which recently ruled that the “ordinary high-water mark,” the point at which “the presence and action of water are so common and usual” as to mark a clear distinction between beach and banks, is the boundary between publicly owned Lake Michigan and the private property abutting it. Some homeowners had wanted the boundary to be the “water’s edge,” wherever that happened to be at any given time.

Basically, the homeowners wanted the right to yell, “Get off my beach!” to any wandering lake-lover strolling by, and the court said, no, the beach belongs to all of us. The best thing about the decision (see Gunderson et al. vs. State of Indiana et al.) is the court’s meticulous research, which went all the way back to English common law with stops at the Northwest Ordinance and the granting of statehood along the way.

The least mount of respect for private property can be found in the small town of Charlestown in southern Indiana, where the mayor, in partnership with a private developer, wants to bulldoze a low-income neighborhood and replace it with a new upscale subdivision.

In its despicable Kelo decision in 2005, the U.S. Supreme Court encouraged such blatant theft of private property by ruling that a government could take it for “economic development,” somehow interpreting the Constitution’s requirement for a public “use” (roads, bridges, schools, etc.) to mean public “benefit,” such as giving it to another private party who can generate more tax dollars with it.

Indiana reacted to the public’s Kelo outrage (80 percent disapproval in some polls) by making it hard to grab property for economic development here, without at least trying to make a case that that the property is somehow “blighted” (which deserves a whole other column). But Charlestown’s mayor gets around that pesky law by trying to force the homeowners into bankruptcy with heavy daily fines for such minor infractions as a torn screen or a bit of flaking paint. He is trying to inspect the neighborhood out of existence, a tactic employed in no other part of town.

The line between public and private can get blurred, and we can all argue over where it should be. (I know many of my fellow libertarians disagree with me on the Lake Michigan decision). But there is a line, and we need to keep fighting for it.

Property rights are not less important than civil or other human rights, as some liberals believe. If we own ourselves, which is the essence of citizenship in a constitutional republic, we also have the right to transform resources and enjoy their benefits. Property and all other rights are inextricably linked. As they rise or fall, so does our freedom or subjugation.

What’s mine is mine, what’s yours is yours, and what is ours is up for grabs. The only question to be answered when it is claimed something should be public is whether that would enhance or diminish what is private.

And all I want out of it is my little corner of the universe, where I can do whatever I please.

Except when I can’t.

And when I can get to it.

Leo Morris, columnist for The Indiana Policy Review, is this year’s winner of the Hoosier Press Association’s award for Best Editorial Writer. Morris, as opinion editor of the Fort Wayne News-Sentinel, was named a finalist in editorial writing by the Pulitzer Prize committee. Contact him at leoedits@yahoo.com.



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