terça-feira, 29 de junho de 2004

Axioma da aquisição original de propriedade ("Homesteading principle") e poluição

Em "Law, Property Rights, and Air Pollution: Foundation to Austrian law and economics", Murray N. Rothbard

"The “first ownership to first use” principle for natural resources is also popularly called the “homesteading principle.” If each man owns the land that he “mixes his labor with,” then he owns the product of that mixture, and he has the right to exchange property titles with other, similar producers. This establishes the right of free contract in the sense of transfer of property titles. It also establishes the right to give away such titles, either as a gift or bequest.

Most of us think of homesteading unused resources in the oldfashioned sense of clearing a piece of unowned land and farming the soil. There are, however, more sophisticated and modern forms of homesteading, which should establish a property right.

Suppose, for example, that an airport is established with a great deal of empty land around it. The airport exudes a noise level of, say, X decibels, with the sound waves traveling over the empty land. A housing development then buys land near the airport. Some time later, the homeowners sue the airport for excessive noise interfering with the use and quiet enjoyment of the houses.

Excessive noise can be considered a form of aggression but in this case the airport has already homestead X decibels worth of noise. By its prior claim, the airport now “owns the right” to emit X decibels of noise in the surrounding area. In legal terms, we can then say that the airport, through homesteading, has earned an easement right to creating X decibels of noise. This homesteaded easement is an example of the ancient legal concept of “prescription,” in which a certain activity earns a prescriptive property right to the person engaging in the action.

On the other hand, if the airport starts to increase noise levels, then the homeowners could sue or enjoin the airport from its noise aggression for the extra decibels, which had not been homesteaded. Of course if a new airport is built and begins to send out noise of X decibels onto the existing surrounding homes, the airport becomes fully liable for the noise invasion.

It should be clear that the same theory should apply to air pollution. If A is causing pollution of B's air, and this can be proven beyond a reasonable doubt, then this is aggression and it should be enjoined and damages paid in accordance with strict liability, unless A had been there first and had already been polluting the air before B's property was developed. For example, if a factory owned by A polluted originally unused property, up to a certain amount of pollutant X, then A can be said to have homesteaded a pollution easement of a certain degree and type.

Given a prescriptive easement, the courts have generally done well in deciding its limits. In Kerlin v. Southern Telephone and Telegraph Co. (1941), a public utility had maintained an easement by prescription of telephone poles and wires over someone else's land (called the “servient estate” in law). The utility wished to string up two additional wires, and the servient estate challenged its right to do so. The court decided correctly that the utility had the right because there was no proposed change in the "outer limits of space utilized by the owner of the easement." On the other hand, an early English case that an easement for moving carts could not later be used for the purpose of driving cattle.50

Unfortunately, the courts have not honored the concept of homestead in a noise or pollution easement. The classic case is Sturgis v. Bridgman (1879) in England. The plaintiff, a physician, had purchased land in 1865; on the property next to him the defendant, a pharmacist, used a mortar and pestle, which caused vibrations on the physician's property. There was no problem, however, until the physician built a consultation room 10 years later. He then sued to enjoin the pharmacist, claiming that his work constituted a nuisance. The defendant properly argued that the vibrations were going on before the construction of the consultation room, that they then did not constitute a nuisance, and that therefore he had a prescriptive right to keep operating his business. Nevertheless, defendant's claim was denied."

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