THE STEWARDSHIP MODEL OF NECESSITY.

• Author: Graziano, Joseph

"Something there is that doesn 't love a wall... [yet my neighbor] will not go behind his father's saying... He says again, 'Good fences make good neighbors." (1) INTRODUCTION

Property as a responsibility is a concept that has been out of fashion about as long as the United States has been a nation. The American Dream has long included the white picket fence which makes demands on others to stay off my land and leave me alone. It has long been almost axiomatic that property as a right "create[s] duties that attach to 'everyone else."" (2) But our conception of property law, a body of law with its roots in feudal society long before the Enlightenment turn to the individual as the locus of society, has not always been so exclusionary. (3)

An ancient and medieval understanding of property focuses on the community. In the premodern era, a community had to band together for survival against the elements in ways that were more visceral than today. (4) In such a society, the private actions of each individual were measured in light of how they affected the community. (3) While this communal approach was read through a theological valance for much of the Middle Ages, the message was the same from Aristotle until the Enlightenment: those with a right to property bear an equally grave responsibility to use that property well for the sake of the community. (6) The medieval would consider the landowner to be the first beneficiary of the fruit of his land, but the land owner also bore the responsibility to give from his excess. (7) If he failed to do so, the poor who suffered retained a right to take that which he neglected to give them. (8)

Some property doctrines that we retain today make more sense under this older philosophical understanding. The privilege of necessity stands chief among these. (9) What allows a private individual to infringe on the rights of a sovereign owner and get off scot-free? For instance, why can a boat full of vagrants use a wealthy man's dock in the midst of a storm in such a way that he may not exclude them at all? (10) If they can, why does another boat owner have to pay for damages to the dock for taking a legally identical action?"

Under a law and economics "rights against the world" understanding of property--either the traditional "right to exclude" flavor or the contemporary "bundle of rights" flavor--necessity is a defense in which the judge recognizes dueling rights and makes a judgment call that one right is worth more than the other. (12) The current understanding of private necessity as a justification for a trespass to land boils down to an odd form of rights calculus, or perhaps an odd game of rock, paper, scissors where rights are on the line." Essentially, courts look to the three dominant loci of rights--life, liherty, and property--and halance whether the violation of the property right is properly justified by another person's individual right to life, liberty, or property. (14) The refrain that life beats property is universal. Property of the interloper and property of the owner are of equal value, which reduces the equation to a simple liability rule: pay for any damage to property used to save your property. (1)"' As for liberty, the jury is still out.

Although importing a law and economics perspective on rights is attractive, the difficulty with this rights analysis is that the items in balance are utterly incommensurate. Judges, being living people themselves, generally agree that life is worth more than land, but forcing judges to balance interests like life and property rights is always to ask "whether a particular line is longer than a particular rock is heavy." (17) There needs to be some similarity in order to make a real distinction between things, an underlying substrate that both share, and life and property are far more disparate than even apples and oranges. (18) What should a judge do when fundamental liberties eome up against property rights? The answer is more fraught with policy opinions than judicial ones.

In contrast to this rights-balancing view of necessity, the communitarian understanding of property in the water when the privilege developed would see necessity as a matter of discerning how the interloper's usage of the property corresponds to the common good. This decision remains a judgment call, as all judicial action must be, but it removes the uncertainty of a test attempting to balance incommensurates. (19) Founded on an Aristotelian understanding of property popular in the Middle Ages and even up to the time of Locke, this decisional theory provides an understanding of necessity that could allow it a more robust presence in American jurisprudence. (20) To set up this counterproposal, this Note will unpack an Aristotelian theory that distinguishes between property and use. (21) In contrast to the later conception of property being a right against the world, Aristotle's property starts with a rebuttable presumption of control. This presumption may balk at unjustified violations, but still denies an absolute right to exclude from use. Aristotle claims that private property is defensible because the proper management of the goods of the earth requires a subdivision of stewardship, but this stewardship does not take property out of the realm of the public good. Rather, it ensures that individuals manage their plots of land to contribute to the common good. (22) Exclusion is permissible and sound insofar as it allows for good stewardship, but exclusion is indefensible insofar as it stands in the way of the good of the community. As the common good is harmed by the untimely death or the starvation of its members, the presumption of exclusion would be defeated by a claim of danger to the health of the individual. (5) Similarly, if there is some public good which would be harmed by private exclusion from land, the private interest would cede to the public good.' This Aristotelian sense of communitarian property further developed in the Middle Ages, when the logic of Aristotle was wed to a strong sense of Christian charity. Hints of this ancient and medieval continental sense of the common good continued to be prevalent up to the founding of the United States, even appearing in Locke's writings and in Blackstone's account of justifiable trespass

This Note will proceed in four parts. First, I will present the contemporary understanding of necessity as a defense to trespass to property, and briefly touch on its weaknesses, at least as ajudicial decisional theory. (26) Second, I will walk through the Aristotelian understanding of property as it developed through the Middle Ages and the related foundation of the common good. Third, I will propose a stewardship model of property as applied to necessity. Fourth, I will conclude by extrapolating on how a stewardship model might also apply to constitutional takings and could provide ajusticiable foundation for conflicts in traditional knowledge.

1. THE COMMON UNDERSTANDING OF NECESSITY IN TRESPASS TO LAND

   Private necessity as a defense to trespass to land has a long tradition in the common law. While older commentaries understood necessity as a privilege which gave a selective right to persons in a particular relationship with either the land or the landowner, by the early twentieth century, commentators on the common law had concluded that it was a limited defense to allow an interloper to save her life without fear of reprisal. Today, the defense has been reduced to a desiccated husk of what once was a rohust and broad recognition that exclusion is not the end-all and be-all of property.

   This Part will proceed in four Sections. First, I will outline the way that trespass has been discussed in representative commentaries. The purpose of this glance at the history of the privilege is not to trace its initial development but rather to show how the exclusion-rights conception of property has narrowed necessity to a couple of key instances. Second, I will highlight the contemporary limits of the defense, namely balancing threats to a person's life and some threats to property against a sovereign owner's right to exclude. Third, I will explain the defense from the rights-based perspective commonly presented in American cases, expounding briefly on the decisional theory currently undergirding necessity. Finally, I will draw out the logical problems with the defense under this decisional theory.

   A Early Cases and Commentaries

   By the early twentieth century, commentators of the common law tended to understand that necessity was a privilege that grants permission by the law to enter the land of another, grown out of a moral duty that individuals have to their neighbors in an organized state. (27) Sometime between then and now, the language has shifted from a privilege to a defense. Taken as a defense, necessity justifies an action that otherwise would be a trespass. (28)

   Commentators by the eighteenth century only touch briefly on necessity while explaining trespass to property. Blackstone mentions necessity, but in far broader terms than it is understood in the modern United States. (29) He subdivides the justifiable trespasses into four categories. First, entry that is not a trespass on account of entry with the power of law. (30) Second, entry that is not trespass because the land in question is a common carrier. (31) Third, entry for "the apparent necessity of the thing," which lists three relationships that allow for entry for a narrow purpose. (3) Fourth, interestingly, "that hy the common law and custom of England the poor are allowed to enter and glean upon another's ground after the harvest, without being guilty of trespass" and "[i]n like manner the common law warrants the hunting of ravenous beasts of prey... because the destroying such creatures is profitable to the publick." (33)

   Each of these images of justifiable trespasses is related to, but not quite the same as, necessity. The first...