Lookin’ for Law (in all the wrong places)
Robert H. Hughes, J.
One afternoon last summer I returned home from work to find my two sons engaged in a brawl. Each was breathlessly accusing the other of violating their “agreement.” As I began to settle them down and referee the dispute, I slowly realized they were talking about an actual written agreement, which they promptly confirmed and produced for my inspection.
Sure enough, it had the hallmarks of a binding contract: their signatures manifested offer and acceptance, and mutual promises served as consideration. It was short – only a few provisions – and focused on what you might expect from a twelve and nine-year-old. One clause prohibited snitching to mom and dad, with sensible exceptions for dangerous activities. Another clause incorporated the common law of “shotgun” with respect to seating in the family car.
But one clause in particular caught my eye. It read simply: “T.V., first grabs first haves then three episodes.”
I had never seen the phrase “first grabs, first haves” before, and at first I was stumped. Then it hit me. They had independently invented the doctrine underlying all of western water law: first in time is first in right.
Just like the prospectors in 19th century mining camps – who realized that riparian water law of the east was ill-suited to the arid conditions of the west and created their own system of water law based on what seemed fair to them – my sons had fashioned their own law to address what to them is an equally scarce resource: access to the television.
Now, as innovation goes, this doesn’t rank up there with the independent invention of calculus or natural selection. But still, it was striking that two boys would, without any knowledge of property law, independently come up with such a similar articulation of a basic principle.
On the other hand, perhaps it’s not so surprising or impressive; after all, the right of the first person in line seems so natural as to usually go unnoticed. Could the world even operate if the second person in line got to go next? Whether it’s the right to use the remote control, divert water from a stream, or sit in the next open seat at a restaurant, it seems entirely natural that the next person gets the next available right. Indeed, priority is fundamental to just about any system of allocating rights in property.
But being next in line, by itself, usually is not enough. People have to know that you are next in line. In many instances, this presents no problem: when one boy dives across the room and gets his grubby hand on the remote control first, the winner of the right of “first haves” is obvious. Likewise, the long, serpentine queue at the airport security checkpoint provides an obvious visual indicator of the order of rights.
But what if you want to dig for gold? It is not enough to just be first on the spot – the would-be miner must also let the world know he was there first. This is accomplished, of course, by “staking a claim” – posting a notice and physically marking the boundaries of the mining claim on the ground to put the next prospector on notice of the location and extent of the prior right. This form of notice becomes necessary any time a person wants to lay claim to use and occupy space larger than the human body itself and can be seen at work today at any outdoor concert or fireworks show. Or drive down the parade route on the evening of July 23 and you’ll see people staking claims with blankets, chairs, and sleeping bags. They spread out their stuff, laying claim to as much real estate as possible. Interestingly, these informal methods of claim-staking lack what the mining laws included – an explicit limit on the size of the right one can claim. A mining claim under the 1872 mining act was limited to 600 by 1,500 feet; a stretch of curb for Pioneer Day is limited only by one’s willingness to ignore the disdain of one’s neighbors.
By itself, staking a physical claim creates an inefficient system, for at least two reasons. The first is that it often requires at least one person to stay with the claim to guard against encroachment. This might be okay if you have teenagers who think that sleeping on the sidewalk all night is great fun. But it doesn’t work so well for a miner who has to go back to town to retrieve shovels, mules, and dynamite. Second, it leads to a lot of wasted time, with miners hiking up canyons – or minivans driving up and down Third East – only to find that the best spots are already taken. So the mining law imposed an additional requirement: filing a public notice in the local land office after staking the claim on the ground.
This form of centralized notice system is familiar to all of us today, in the form of the County Recorder’s office, where all interests in land are recorded and serve as notice to the world of each claim to real property. This supports what is typically known as a “race-notice” system, where grantees protect themselves against subsequent purchasers by promptly recording their deeds with the county. But centralized recording has not completely displaced the importance of the type of actual notice of prior claims that can be seen on the ground. In a 2002 case, for instance, a landowner was stuck with an easement over his property, even though the written easement had not been properly indexed by the recorder against his property when he bought it, because “the disputed right-of-way was in open and obvious use.” Arnold Indus. v. Love, 2002 UT 133, ¶ 30, 63 P.3d 721.
While notice is a common – perhaps even necessary – feature of priority-based systems, it is not, by itself, sufficient. If prior notice, without more, were enough to create ownership, all of us could simply file a notice with the County Recorder, asserting ownership over anything not...