Boundaries of exclusion.

• Author: Phillips, Georgette Chapman
• Position: Symposium: A Festschrift in Honor of Dale A. Whitman

My boundaries enclose a pleasant land; indeed, I have a goodly heritage Psalm 16 v. 6

1. INTRODUCTION

   Dale Whitman is a giant in the field of property law. Generations of law students have read from his texts, hornbooks and treatises. I am honored to be invited to participate in this celebration of his scholarship. We all owe him a great debt for his comprehensive and expansive works in the field. I would humbly like to work my own "patch of land" in this field by taking the traditional concepts of individual property rights and molding them around the community.

   This article is a story about boundaries and exclusion and about how--or whether--there is a community based right to exclude nonresidents. The right of the individual to own property, to defend that property and to exclude others from entering that property are sticks in the bundle of rights enshrined in US property law. (1) The limitations on that exclusion are determined by the creation of a legally defined property line that bounds these rights. That part of our story is relatively straightforward. However, we do not live our lives in isolation. We surround ourselves with a chosen community that, in large part, serves as a reflection of self-identity. So, to take this one step further, the complexity grows when we raise the questions of if, when and how a community (i.e., a group of individuals bound together by owning property in the same political jurisdiction) can exercise the same type of property rights, particularly the right to exclude which would prohibit entry for non-residents. (2)

   The rights of a community will not be defined by a private property line. Rather they will be determined by the legal boundary of the local community. In this fashion politically created jurisdictional boundaries would become imbued with notions of private property rights. This line of reasoning forces us to delineate the intersection between traditional property law (the law of the individual) and local government law (the law of the community).

   Is there such a thing as "communal ownership" that will bring to bear the same rights to exclude and defend? If so, where do these rights grow from? Fashioning such a right requires a joining of private property rights with public municipal rights. Another way of viewing the exercise is to permit a transitivity of rights. Meaning, if a citizen can defend and exclude based on individual property rights, can a community that is composed of citizens likewise defend and exclude non-community members from community property? What are the implications here on notions of civic duty?

   Moreover, if these rights exist, we then are faced with placing limitations on such rights. Municipal boundaries, although superficially quite porous, reify when utilized to differentiate residents from non-residents. Oftentimes these politically drawn distinctions become social artifacts that serve as a proxy for division of self-identification. The porous nature of these boundaries will be tested by examining their power to impede freedom of movement in the same way that individual property lines have the power to restrict free movement.

   I will contextualize this somewhat theoretical exercise in a real world event. The Crescent City Connection is a bridge across the Mississippi River spanning between New Orleans and the West Bank town of Gretna, Louisiana. (3) In the aftermath of the devastation of Hurricane Katrina in 2005 people trapped by decimated buildings and rising flood waters within New Orleans searched for routes to safety. Two days after Katrina struck, several hundred people tried to cross the Crescent City Connection to escape the flooding in New Orleans. They were met by officers of the Gretna police department who warned them to turn back. When the evacuees continued across the bridge the officers fired warning shots, reiterating the command to turn back.

   The police officers contend they undertook their action based on concerns for public safety in Gretna. However, there was no sign that the people trying to cross the bridge were looters, rioters or hooligans. Rather they were people simply trying to free to dry land. This brings to focus the kernel of the question presented in this paper: can a community (in this case its police department) prevent non-citizens from entering the community? If so, what are the limitations on such exclusion? Specifically this paper will examine the parallelisms and divergences from traditional property rights when "ownership" is in the hands of a community versus an individual. Local government lines, generally thought of as porous, solidify into barriers when they impede the fundamental freedom of movement.

   The first order of business is to sketch out the relevant sources of legal power of both the individual and the community in this situation. Namely, first property law and then local government law will be discussed to set the framework under which each of our actors can deal with others vis-a-vis real property rights. In undertaking this comparison, a natural intermediate step will be to consider the rights of private homeowners' associations.

   The next step in the analysis is demarcating the limitations on the right to exclude. People (and communities) certainly have rights. But along with the rights come correlative responsibilities. In other words, do the political boundaries that create local communities overpower any moral (as opposed to legal) responsibility to those outside of the boundaries? This question will be addressed in both a descriptive and a normative fashion to craft the limitations on exclusion. Although there is a natural inclination to look to the cases on exclusionary zoning in answering these questions, this impulse should be restrained. Exclusionary zoning rests on the notion of how and when a community can prevent an outsider from becoming a member of the community, i.e., exclusion from ownership. That is not the issue here. Rather, the focus of this article will remain on the community's right to exclude outsiders from using community property. The right of owners of beach front properties to completely exclude or impede access provides an ideal context for discussion.

   All of this comes together when we examine the events that transpired in New Orleans after Hurricane Katrina. By grafting the normative construct onto a real life problem the structure can be tested from a theoretical as well as a practical perspective.

2. THE RIGHT TO EXCLUDE

   The right to exclude others is one of the incidents of property ownership. According to one leading school of thought, property ownership is comprised of numerous "sticks in a bundle of rights." (4) Taking this notion a step further, it has been argued that the right to exclude others is the most important stick in the bundle, the "irreducible core attribute of property." (5) It is a core value of private property ownership that the law will support a landowner's right to exclude. (6) The United States Supreme Court affirmed this view in Kaiser Aetna v. United States, wherein the right to exclude is described as "so universally held to be a fundamental element of the property right." (7) More recently in Lingle v. Chevron USA, Inc., the Court stated the right to exclude is "perhaps the most fundamental of all property interests." (8)

   There is ample historical evidence for the right to exclude as central to the notion of property ownership. Primitive land rights systems granted the right to exclude via the usufruct, described as "an exclusive right to engage in particular uses of the land that is nontransferable and terminates when the owner dies or ceases the use." (9) An influential history of land regimes by Bob Ellickson concludes that the usufruct was probably the earliest form of ownership of land, (10) lending further support to the essentialism of the right to exclude.

   1. The Tort of Trespass

      The correlative remedy for infringement on the right of exclusive possession is the tort of trespass. (11) It presupposes exclusivity in that no one (other than the owner) may enter. Historically an aspect of remedying breaches of the peace, trespass protects the right to possession. (12) Although certainly not the only instance where a tort is used to protect a real property interest, (13) it is fascinating to contemplate the concept that the right to possession extends beyond property-based remedies such as ejectment and/or eviction (which also protect the right to exclusive possession). A tort remedy personalizes the harm of invasion onto one's property by imposing personal as well as property damages. (14)

      As it relates to the arguments set forth in this paper, one of the most interesting aspects of the tort of trespass is that it is a strict liability tort. (15) Therefore it does not require a showing of harm. Simply invading (or causing something to invade) the private property of another constitutes trespass. (16) In fact, even entry by mistake constitutes trespass. (17) Possession and unauthorized entry form the prongs of the prima facie proof of the tort. (18)

      This creates a powerful right in the hands of the possessor of land and a fundamental tenant of property law--possession entitles exclusion. It negates other, more communal, interpretations of property. (19) Although there may be exceptions for necessity and exigency (20) the presumption is clear: a person may not enter the land of another without permission. In this way the tort of trespass helps build walls--in both a real and hypothetical sense--around property. (21)

   2. Limitations on the Right to Exclude

      The right to exclude others from private property is not absolute. (22) The exclusive control of private property is, instead, "subordinate to the exigencies of public safety and private necessity, and legal sanction is given in such a case to the requirements of morality and social duty." (23) The doctrine of necessity, in both tort and criminal law...