Property theory as easement theory.
When a resident is neighbor to a factory, and the resident sues over the factory’s incredible noise, how to resolve the dispute is find out who was there first, as explained by Murray Rothbard and Hans-Hermann Hoppe. If the resident was there first, and the factory set up shop later and started bombarding the resident’s eardrums with quality-of-life diminishing noise, then that is a tort committed by the factory owner against the homeowner. The homeowner has either homestead or contracted the space for occupation undisturbed by grievous noise. However, if the factory was there first, and had already been emitting that level of noise into the neighboring unowned space, before the resident ever moved in, then the factory has first-economized (homesteaded) that space for the purpose of emitting that noise in the course of its operation.
Does that mean the factory owner then fully owned the land, and the homeowner should have bought it from the factory owner in the first place? No, as most libertarian legal theorists will tell you, the factory owner has only homesteaded an easement on the land. It has only established the right to do that particular thing to the land: propagate loud sound waves through it.
The reason this makes sense is that the usefulness of the institution of property is that it decides in an optimal way, who, among potential users with incompatible ends (purposes) for the same means (resource), gets to economize the means (resource) in question.
But, for example, if a deaf man (or simply a man who is willing to tolerate noise) moved into the already-noisy neighboring land, his goals for and use of the land are fully compatible with the factory owner’s goals for and use of the land. He in no way deprives the factory of its full pursuit of its goals for the land.
Therefore, for economic and jurisprudential purposes, the most useful definition of “means” or “resource” is not “a scarce, useful thing,” but rather “a scarce, useful feature of a thing.” Land-as-recipient-of-sound-waves is a different means from land-as-container-of-bodies-and-objects. A land’s use with regard to one feature of it, does not always use the land up with regard to the land’s use with regard to another feature of it.
Another example is the propagation of radio waves. If one radio station is the first to broadcast a signal on a certain frequency in a certain space to its listeners, then the owners of that company have homesteaded the easement of doing so, although not full ownership of everything their radio waves have touched. If another radio station were to try to do the same, the interference would mean that the two parties’ ends are incompatible. That means the second radio station would be committing a tort. However, if someone moved into one of the parcels of land that is in the radio station’s range, the mover’s ends and the radio station’s ends for that space will be fully compatible.
If a resident moves in to a parcel before any radio station ever started propagating waves over it, a radio station can still set up shop nearby, and propagate waves through the resident’s parcel, without having committed a tort, as long as it cannot be demonstrated that the radio waves significantly impinge the resident’s utilization of the land. This is because, the homeowner has only homesteaded the easement to occupy the space with whatever he wants, and only has a right to prevent uses of it that are incompatible with that. The radio station’s waves are not incompatible with that, unless the homeowner also already had his own radio station, beaming out the same frequency. Now, if another mover tried to move into that space, the ends of the two movers would be incompatible, and the second mover would have committed a tort (trespass) against the first mover.
To own something is to have the right to do something to a thing: that is, to economize a certain scarce feature of it. When an object is homesteaded, what is actually homesteaded (what the homesteader has title to) is the scarce feature of the object that is economized. The homesteader has established the right to do that particular thing to the object, and the right to prevent others from using the object in a way that is incompatible with that use. And when they transfer title to someone else, as in a sale, the transferee only has those particular rights as well.
Also published at Medium.com: