Don't Bother Judging

I would frame this as a "you be the judge" thing, but the set-up isn't nearly so interesting as the result. So here goes:

Building Encroachment is a big deal in property law. Building Encroachment occurs when you build a structure on your property and part of it crosses into your neighbor's property. This is a bad thing, since it violates their right to the property. It was therefore necessary for the courts to develope a remedy for the problem. For a long time, their remedy was the absolute stupidest solution you could imagine to the problem.

We are introduced to the problem of Building Encroachment in the case of Pile v. Pedrick, arising in the late Nineteenth Century. Pile and Pedrick owned adjacent lots. Pile lived in a house on his lot. Pedrick had an empty lot on which he built a factory, extending to the property line. Pile discovered that the foundation of the wall on the property line contained small feet for support at the base. These feet were located seven feet below ground. A careful survey determined that the feet extended 1 3/8 inches over the line into Pile's property. Pile sued for trespass.

Nineteenth Century jurisprudence was of a highly formalistic character. That is, it was very concerned with making sure that laws and precedents were followed to the letter, with a minimum of higher order thinking. Concerns of justice should be excluded, if at all possible; Justice has no place in the court room. The reasoning of courts in building encroachment cases was that an encroachment is like a sustained trespass. The remedy for a trespass is an injunction forcing the trespass to end. Therefore, the court in this case issued an injunction ordering Pedrick to remove the offending feet. Pedrick offered to send workmen to Pile's property to dig down and chip off the feet, ending the trespass. Pile refused; the only acceptable solution was to tear the whole wall down, and the factory along with it. The court decided that this reasoning was very sound and sensible, and ordered Pedrick to demolish his factory immediately, so that this grave and unconscionable offense against Pile's inalienable property rights would be ceased as soon as possible.

While some courts still adhere to this line of reasoning, most courts today just award damages to the encroached upon party, effecting a land transfer at the going rate for the land encroached upon, assuming the encroachment was in good faith.

The big point, here, is that Anglo-American law takes property rights very, very seriously. Freedom of speech, eh. Freedom of religion, so long as it doesn't annoy anyone. But once you mess with somebody else's right to property, you are entering a world of pain. You are now a sinner in the hands of an angry God, so far as the law is concerned, and no punishment is too harsh for a degenerate such as you.

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This page contains a single entry by Zach published on January 13, 2006 12:26 AM.

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