Do you really own it?

By Blake Hurst

© Copyright Agri-Pulse Communications, Inc.



I've been thinking a lot lately about owning stuff.  It should be pretty clear what that means, owning something.  If I own it, I can sell it, I can use it, surely I can rent it out, and I guess I can throw it away.  As long as I recycle.  

If you're a farmer, owning the farm headquarters is the goal.  You can rent, lease, crop share, or contract, but all of us want at least a few acres to call our own.  A few acres that won't be lost in case of limit moves down, disease, pestilence, or lawsuit.  A place where the kids and their kids will always think of as the “home place.” And after I get the home place, I only want the place across the road.  Although we all like to own things, we have some disagreements, and always will, about what owning something actually means.

Because to at least one homeowner in Missouri, ownership means the right to sleep late undisturbed on Saturday morning.  The local police and prosecutor agree, as they've arrested, charged, and convicted the neighbor for disturbing the peace because the neighbor owned a crowing rooster who woke the homeowner every Saturday morning.  In that community at least, the homeowner owns the sound waves for as far from her property as her sleeping ears can reach.  And her neighbor owns the rooster, but only if the rooster is silenced.  Which it has been, coming to an untimely end at the hands of a local varmint, who, if I understand Missouri law, is owned by the state.  The varmint, not the rooster, which is dead.  But I digress.

Try to build a pig pen most anywhere, and you'll find that the neighbor believes his property rights include the right to not smell pigs.  Which should satisfy John Locke, philosopher and a true believer in the importance of property.  His writing served as an inspiration for America's founding documents, and he once said that “no one ought to harm another in his life, health, liberty, or possessions.”  On the other hand, if one owns property, then surely one ought to have the right to use that property in any legal manner, even raising hogs.  Or as John Locke said, “Government has no other end, but the preservation of property.” When you think about it, Locke may have seen property as the basis of all other human rights and freedoms, but he wasn't much help on hog manure.

The prevailing legal theory, at least until lately, has been that property ownership is a bundle of rights, or, metaphorically, a bundle of sticks.  The right to sell.  The right to use.  The right to deny access.  The right to rent.  Maybe mineral and water rights.  Laws and court decisions vary from place to place, and property in one place can come with different sticks than the same kind of property owned elsewhere.  In some places, nuisance law and regulation may totally deprive a landowner of the ability to raise livestock(or own a rooster).  In other places, livestock are accepted, and if you don't want to smell pigs or get up when your neighbor's rooster does, you might want to think about moving. Those mores and customs are always changing, and those sticks are always moving between various owners and the state.

The Fifth Amendment to the constitution says that the government can't deprive an owner of his property without “just compensation.”  Clear enough, when the government wants to build a road and condemns your property.  Not so clear when the government regulates your property.  Like many urban areas, Kansas City has a boundary delineating where development is allowed and where it is more strictly controlled.  When the local zoning commission drew that line, it devalued some property and increased the value of other parcels.  Is that a violation of the Fifth Amendment?”  Nope, and it's not a taking when the government restricts use of property because of the Endangered Species Act or the Clean Water Act.  Although the law on regulatory takings is not always clear and evolves over time, the ability of landowners to recover loss in value from regulatory actions is slight.  If that were to ever change, and if governments were forced to compensate property owners for loss in economic value from government actions that decreased property values without the government taking physical possession of the property,  much of the present administrative state would cease to exist.  Which would make my rooster crow.

One of the more interesting arguments going on the property line where law and economics intersect is over intellectual property.  Farmers have a stake in this argument on a couple of fronts.  Many argue that companies ought not to have the ability to patent seeds.  Although a cynic might think this has more to do with objections to new technology than it does to any well considered theory about rights, intellectual property, and what arrangements would most benefit society, it's a lively topic for debate in blogs, websites, and Facebook posts.  Not so much in the courts, where judges have come down solidly on the side of seed patents.

Some economists argue that patents ought not exist at all, and no invention should have protection against copying.  That's a fairly radical position, but there is no doubt that so called “patent trolls” who sue for patent infringement at the drop of a hat are a drag on innovation and economic growth.  Many people think that the length of protection for patented innovations is too long.  Interestingly enough, most authors who criticize patent law have a slightly more nuanced view of copyright law.  (all rights reserved to this article, by the way.)

Intellectual property law also gets involved in the argument over “ownership” of farm data.  Although everybody agrees that the farmer owns the data generated on his farm by his machinery, a careful parsing of agreements between farmers and tech providers can raise doubts about whether there is any agreement at all over what that “ownership” actually means.  Not to mention the restrictions against farmers manipulating the operating software on their tractors and combines.  Come to find out, you may not own quite all of your tractor.  

Heck, there may be some question about just what kind of property farm data is.  When you buy the quarter section across the road, there is a legal description.  At least some legal experts are worried that there is no real definition of “data' in the law.  We'll work it out over time, but we're still short of actually knowing what “sticks” are owned by whom when we share our farm data.

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When you think about why some countries grow and prosper, and others do not, at least part of the reason is that institutions matter.  Security in property, the ability to easily transfer it, and respect for the rights of landowners are important to the success of an economy.  In fact, property rights may be the most important factor influencing the success of societies.  Fence lines in property rights disagreements are never fixed.  That being said, America is the best place anywhere to own something.  Whatever that means.

https://ssl.gstatic.com/ui/v1/icons/mail/images/cleardot.gifAbout the author: Blake Hurst is a third-generation farmer and president of the Missouri Farm Bureau board of directors. 

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