Colonial Land Use Law and Its Significance for Modern Takings Doctrine
Author(s): John F. Hart
Source: Harvard Law Review, Vol. 109, No. 6, (Apr., 1996), pp. 1252-1300
Published by: The Harvard Law Review Association
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COLONIAL LAND USE LAW AND ITS SIGNIFICANCE
FOR MODERN TAKINGS DOCTRINE
John F. Hart*
The current legal justification for applying the Takings Clause broadly to modern land
use regulation relies upon the historical premise that colonial legislators regulated land
use only minimally. Professor Hart closely examines a number of colonial statutes and
finds that the historical evidence disproves this premise. After surveying the broad array
of purposesfor which colonial lawmakersregulated land use, he asks what these purposes
reveal about the colonial conception of the relationship between public authority and private rights. He concludes that colonial legislators believed that it was a legitimate use of
governmentpower to promote the public good by restricting the right of private landowners to use their land as they saw fit. Because Professor Hart finds the Supreme Court's
historical assumptions about colonial land use regulation to be unsupported, he rejects
the Court's position regarding the reach of the Takings Clause.
The modern debate over land use regulationrests upon the mistaken historicalpremisethat an earliertraditionof propertyrights allowed Americanlandownersto use their land as they wished, if they
caused no harm to others. At the time of the nation's founding,it is
said, land use regulationparalleledthe common law of nuisance in
content.l Such minimalland use regulationis said to have been traditional from the colonial era until the early twentieth century.2 This
renderingof history implies that modernzoning ordinancesand envi* Associate Professor, Valparaiso University School of Law. B.A., Reed College, I977; J.D.,
Yale University, I98o. I thank John Cribbet, Ellen Deason, Eric Freyfogle, and Stephen Siegel
for their comments.
1 See Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1028-3I (1992); RICHARD A.
TAKINGS: PRIVATE PROPERTY AND THE POWER OF EMINENT
EPSTEIN,
DOMAIN
16 (I985)
(assert-
ing that the Lockean view of the role of private property in governance predominated when
Constitution was written); James W. Ely, Jr., The Enigmatic Place of Property Rights in Modern
AFTER200 YEARS87,
Constitutional Thought, in THE BILL OF RIGHTSIN MODERNAMERICA
93-95 (David J. Bodenhamer & James W. Ely, Jr. eds., I993); Charles K. Rowley, The Supreme
Court and TakingsJudgments: Constitutional Political Economy VersusPublic Choice, in TAKING
PROPERTY
AND JUST COMPENSATION:
LAW AND ECONOMICS
PERSPECTIVES
ON THE TAKINGS
ISSUE79, 105-07 (Nicholas Mercuro ed., I992).
2 See ROGERA. CUNNINGHAM,
THE LAWOF
B. STOEBUCK
WILLIAM
& DALEA. WHITMAN,
PROPERTY
? 9.3, at 543 (2d ed. 1993); BEVERLEY
J. POOLEY,PLANNINGAND ZONINGIN THE
UNITED
STATES 40-42
(1961);
I PATRICK J. ROHAN, ZONING AND LAND USE CONTROLS ?I.02[1],
at 1-9 to I-Io (1994); Peter L. Abeles, Planning and Zoning, in ZONINGAND THE AMERICAN
DREAM 122, 122 (Charles M. Haar & Jerold S. Kayden eds., 1989). Some scholars identify earlier
government efforts to regulate noninjurious uses of land in the mid-nineteenth century. See William M. Treanor, The Original Understanding of the Takings Clause and the Political Process, 95
COLUM.L. REV. 782, 792-94 (i995); Scott M. Reznick, Note, Land Use Regulation and the Concept of Takings in Nineteenth Century America, 40 U. CHI. L. REV. 854, 86o-66 (I973). Another
historical account identifies two colonial laws implementing urban aesthetic regulations and five
laws constraining farmers' choice of crops. See FRED BOSSELMAN,
DAVID CALLIES& JOHN
BANTA,THE TAKINGISSUE82-84 (I973).
1252
I996]
COLONIAL LAND USE LAW
I253
ronmental laws impose restrictions of a magnitude without precedent
in American history.3
This Article surveys the land use law of the colonial era - when
the tradition of minimal regulation supposedly took root - and shows
that, in fact, colonial governments regulated land use extensively for
purposes other than preventing harm. These findings have an important bearing on today's doctrine of regulatory takings, which treats
many cases of land use regulation as takings because they go "too
far."4 The Takings Clause does not expressly address regulation of
property,5 nor does any contemporaneous evidence indicate that it was
intended to apply to regulation.6 Today's doctrine of regulatory takings therefore lacks any basis in the constitutional text unless, as the
Supreme Court has said, land use regulation was confined to the prevention of nuisance when the Takings Clause was adopted.7 Only if
regulation of noninjurious uses of land is a relatively recent development does it make sense for courts metaphorically to extend the Takings Clause to land use law in general.8
The Supreme Court first invoked the historical tradition of minimal land use regulation in its early decisions reviewing land use regulation under the Fourteenth Amendment.9 According to the Court,
determining whether statutes regulating private property were constitutionally valid required reference to the "rights of the citizen, as those
rights stood at the common law."10 The Fourteenth Amendment protected citizens from government measures that "had no warrant in the
3 See The Constitution, Regulatory Takings, and Property Rights: Hearings Before the Subcomm. on the Constitution of the House Comm. on the Judiciary, Io4th Cong., ist Sess. (I995)
[hereinafter Hearings] (statement of Roger J. Marzulla), available in LEXIS, Legis Library,
CNGTST File; id. (statement of Roger Pilon); FRANKJ. POPPER,THE POLITICSOF LAND-USE
REFORM9 (1981); Abeles, supra note 2, at 122; Lynton K. Caldwell, Rights of Ownership or
Rights of Use? - The Need for a New Conceptual Basis for Land Use Policy, 15 WM. & MARY
L. REV. 759, 761-64 (I974).
4 Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 415 (1922).
s See U.S. CONST.amend. V ("[N]or shall private property be taken for public use, without
just compensation.").
6 See BOSSELMAN,
& BANTA,supra note 2, at IO4;Treanor, supra note 2, at 788-89.
CALLIES
7 See infra pp. 1287-89.
8 See infra pp. I290-9I.
9 In its early Fourteenth Amendment decisions, the Supreme Court commonly approached
the validity of land use regulation, like that of other forms of regulation, as an issue requiring
comparison of modern law with historical norms. See generally Stephen A. Siegel, Lochner Era
Jurisprudence and the American Constitutional Tradition, 70 N.C. L. REV. I, 78-83 (i99I) [hereinafter Siegel, Lochner Era Jurisprudence] (suggesting that Lochner era jurists would compare
new legislation with "the principles embodied in common-law doctrines regulating property");Stephen A. Siegel, Historism in Late Nineteenth-Century Constitutional Thought, 1990 Wis. L. REV.
1431, i506-15 [hereinafter Siegel, Historism] (evaluating Thomas M. Cooley's argument that the
constitutional rights at stake under regulatory legislation are to be "construed in light of common
law principles").
10 Pumpelly v. Green Bay Co., 80 U.S. (13 Wall.) i66, 178 (1872), quoted in Mugler v. Kansas, I23 U.S. 623, 668 (I887); see Munn v. Illinois, 94 U.S. 113, 125 (I876) (looking to "the com-
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HARVARD LAW REVIEW
[Vol. 109:I252
laws or practices of our ancestors."1' Nuisance law, based on the "fundamental principle that every one shall so use his own [land] as not to
wrong and injure another," embodied the regulatory power that "belonged to the States when the Federal Constitution was adopted"12
and which the states intended to retain when they adopted the Fourteenth Amendment.13
In Village of Euclid v. Ambler Realty Co.,14 the Court upheld a
zoning law that excluded industry from residential areas because the
restriction prevented "injury of the residential public."l5 Emphasizing
the novelty of zoning laws (begun "about twenty-five years" before),
the Court declared that the validity of particular zoning restrictions
should be determined under "the maxim sic utere tuo ut alienum non
lcedas, which lies at the foundation of so much of the common law of
nuisances."16 As for "more recent" legislation protecting residential areas from apartment houses, the Court approved this regulation only
because apartment houses in such areas "come very near to being
nuisances."17
Recent opinions display the same tacit genealogy of land use regulation: the Court has continued to assert the relative seniority of the
common law of nuisance and its foundational status in reviewing land
use regulation.18 The Court has accorded regulation attacking "nuisance-like activity" a "special status" in takings doctrine because such
mon law, from whence came the right which the [Fourteenth Amendment] protects");infra pp.
1287-88.
11 Pumpelly, 80 U.S. (I3 Wall.) at I78, quoted in Mugler, 123 U.S. at 668; see Siegel, Lochner
Era Jurisprudence, supra note 9, at 80-83. Later the Court held that the Fourteenth Amendment
had incorporated the Fifth Amendment's Takings Clause. See Pennsylvania Cent. Transp. Co. v.
New York City, 438 U.S. 104, 122 (1978); Chicago, B. & Q.R.R. v. Chicago, i66 U.S. 226, 239
(1897). The doctrinal origins of this purported incorporation have been variously interpreted. See
Treanor, supra note 2, at 860-63.
12 Northwestern Fertilizing Co. v. Hyde Park, 97 U.S. 659, 667 (I878), quoted in Mugler, I23
U.S. at 667.
13 See Mugler, 123 U.S. at 664; see infra pp. 1287-88.
14 272 U.S. 365 (1926).
15 Id. at 390. The Court also observed that when state courts had upheld exclusive residential zoning, they had done so because such regulations protected "the health and safety of the
community." Id. at 390-91, 393; see also State ex rel. Civello v. City of New Orleans, 97 So. 440,
444 (1923) ("[A]nybusiness establishment is likely to be a genuine nuisance in a neighborhood of
residences."), quoted in Village of Euclid, 272 U.S. at 393. There was "no serious difference of
opinion" over regulation of urban land use designed to "minimize the danger of fire or collapse,
the evils of over-crowding, and the like, and excluding from residential sections offensive trades,
industries and structures likely to create nuisances." Village of Euclid, 272 U.S. at 388.
16 Village of Euclid, 272 U.S. at 386-87; see Robert A. Williams,
Jr., Legal Discourse, Social
Vision and the Supreme Court's Land Use Planning Law: The Genealogy of the Lochnerian Recurrence in First English Lutheran Church and Nollan, 59 U. COLO.L. REV. 427, 440-46 (1988).
17 Village of Euclid, 272 U.S. at 395. The Court invoked studies indicating that the apartment house was "very often . . . a mere parasite." Id. at 394.
18 See Lucas v. South Carolina Coastal Council, 505 U.S.
00oo3,1024-32 (1992); Keystone
Bituminous Coal Ass'n v. DeBenedictis, 480 U.S. 470, 491-92 (I987).
I996]
COLONIAL LAND USE LAW
I255
regulation is viewed as preceding the Takings Clause.19 Regulatory
control of nuisance, alone among modern forms of land use regulation,
is held to be consistent with "the historical compact recorded in the
Takings Clause that has become part of our constitutional culture,"20
and with "common-law principles."21Nuisance doctrine alone can justify regulations that prevent "all economically beneficial use of land."22
Only laws regulating nuisances recognized by the courts are entitled to
this deference under the Takings Clause; such prohibitions "cannot be
newly legislated or decreed" by other branches of government.23
The historical premise that minimal land use regulation is a longstanding tradition in America not only buttresses the legal argument
that modern land use regulation has invaded traditional rights of landowners,24 but also serves symbolically to place modern land use law in
an unfavorable light in the larger debate over the legitimacy of today's
regulatory measures. Today's land use laws are said to be contrary to
the views of the Founding Fathers25and to fundamental, longstanding
American values.26 The right of American landowners to use their
land freely as long as they cause no harm to others is said to be foundational and prepolitical - preceding the formation of the state and
federal governments.27 Lacking roots in American history, regulation
19 Keystone, 480 U.S. at 491-92 & n.2o; see also id. at 492 ("[T]he Takings Clause did not
transform" the principle that "property ... is held under the implied obligation that the owner's
use of it shall not be injurious to the community." (quoting Mugler v. Kansas, 123 U.S. 623, 664
(I887)) (internal quotation marks omitted)).
The Court does not defer to nuisance principles because it perceives them to provide objective, distributively neutral allocations of cost to those who cause harm; rather, the reasons for this
special deference are historical. See Lucas, 505 U.S. at 1022-3I; see also Douglas W. Kmiec, The
Original Understanding of the Taking Clause is Neither Weak Nor Obtuse, 88 COLUM.L. REV.
I630, 1635-38 (I988) (defending use of harm-benefit reasoning on historical grounds).
20 Lucas, 505 U.S. at 1028.
21 Id. at 103I. Nuisance law is part of a "pre-existing limitation" on the rights of ownership
that a landowner "necessarily expects" when acquiring land. Id. at 1027, I028; see infra pp.
1287-89.
22 Lucas, 505 U.S. at 1029.
23 Id.; see infra pp. 1290-91.
24 See, e.g., Hearings, supra note 3 (statement of Roger Pilon) (suggesting that "propertyrights
have been neglected in recent history, and many government actions have infringed upon the
rights of private property owners"); Ely, supra note I, at 95 (arguing that "zoning and environmental regulations have made substantial inroads upon the traditional rights of owners to make
use of their land").
25 See 141 CONG.REC. H247I (daily ed. Mar. I, I995) (statement of Rep. Bryant); EPSTEIN,
supra note i, at 5, i6; Ely, supra note I, at 1oo; Roger Pilon, Freedom, Responsibility, and the
Constitution: On Recovering Our Founding Principles, 68 NOTREDAMEL. REV. 507, 543 (I993);
Rowley, supra note i, at io6-o8.
26 See BERNARDH. SIEGAN,LANDUSE WITHOUTZONING227 (1972); Ely, supra note I, at
I00.
27 See Hearings, supra note 3 (statement of Roger Pilon); id. (statement of James W. Ely, Jr.);
EPSTEIN,supra noteI, at 5 (stating that the Takings Clause reflects a political tradition in which
"the end of the state is to protect liberty and property, as these conceptions are understood independent of and prior to the formation of the state'). From this premise, Epstein argues that
I256
HARVARD LAW REVIEW
[Vol. I09:I2 5 2
extending beyond nuisance is associated only with symbols of modernity: the expanding use of the police power in the late nineteenth century,28 the sharply reduced judicial protection of property rights that
accompanied the New Deal,29 and totalitarian ideologies.30 Such symbolic associations do much to undermine the legitimacy of modern
land use laws in current political discourse.
The historical premise that land use was traditionally subject only
to harm-preventing regulation is reflected in legislation recently passed
by the House of Representatives. One bill requires payment of compensation to landowners when any federal agency action reduces the
market value of property by more than twenty percent by restricting
the use of land for purposes not already barred under state nuisance
law or local zoning ordinances.31 Comparable legislation has been enacted in many states.32 This legislation has been represented as restoring a traditional regime of property rights under which landowners
could put their land to any use that did not "cause harm to others or
constitute a public nuisance."33 This purported tradition is said to
have been enshrined in the Bill of Rights but eroded by modern land
use regulations.34
any government regulation that goes beyond preventing nuisance should generally be regarded as
a taking, permissible only upon payment of compensation to affected landowners, if at all. See id.
at 111-12; see also Pilon, supra note 25, at 543 ("Government is not prohibited by the Takings
Clause from taking privateproperty;it simplyhas to pay for the propertyit takes ratherthan
leave the costs of publicpolicyto be borneby the individualpropertyowner.");
id. at 513 ("[T]he
world the Foundersenvisionedwas largelya worldof privatelaw . . . protecting[people]only
from the depredationsof others.").Epstein'sline of argumentis labelled"A Neoconservative
View of Constitutional Property"in Margaret J. Radin, The Liberal Conception of Property: Cross
Currents in the Jurisprudence of Takings, 88 COLUM.L. REV. I667, I668-70 (I988).
28 See Joseph L. Sax, Takings and the Police Power, 74 YALE L.J. 36, 40 (I964); Reznick,
supra note 2, at 858-60.
29 See DENNIS
J. COYLE, PROPERTY RIGHTS AND THE CONSTITUTION 42-43
(I993); Pilon,
supra note 25, at 542; Rowley, supra note I, at IIo-II.
30 See COYLE,
supra note 29, at 21 ("The early enthusiasts for zoning . . . were fighting a holy
war againstthe libertariansins of nineteenth-century
development.... Controlover land use
would be . . . entrustedto expertelites removedfrompoliticsand business.");
StanleyRothman,
Liberty, Property and Environmental Ethics, 21 ECOLOGY
L.Q. 390, 391 (I994) (likening the per-
movementto that of an environmentalist
spectiveof the modernenvironmental
wing of the German Nazi party);id. (notingthat some environmentalists
ideals);Rowley,
espouse"collectivist"
supra note I, at 103.
31 H.R. 925, Io4th Cong., Ist Sess. (I995) ("Private
Property Protection Act of 1995")(passed
as amendedMarch3, I995) (incorporated
into H.R. 9, Io4th Cong., ist Sess. (Feb. 23, I995), as
Title IX); see Hearings, supra note 3; 141 CONG.REC. H2629 (daily ed. March 3, 1995); H.R.
REP. NO. 46, Io4th Cong., ist Sess. (I995).
32 See Treanor,
supra note 2, at 879.
33 See H.R. REP. No. 46,
supra note 31, at 3; see also Hearings, supra note 3 (statement of
Roger Pilon); id. (statement of Jonathan H. Adler) ("Most 'takings' cases arise not when public
health is at risk, but when the rights of landowners are suppressed by the federal government for
non-essential purposes.").
34 See Hearings, supra note 3 (statement of
Jim Miller); id. (statement of Roger Pilon); 141
CONG. REC. H2459 (daily ed. March I, 1995) (statement of Rep. Pryce); id. at H2467 (statement
I996]
COLONIAL LAND USE LAW
I257
Part I of this Article explores government's use of land-use restrictions in the American colonies. Contrary to the conventional image of
minimal land use regulation, government in the colonial period often
exerted extensive authority over private land for purposes unrelated to
avoiding nuisance. Colonial lawmakers often regulated private landowners' usage of their land in order to secure public benefits, not
merely to prevent harm to health and safety. Indeed, the public benefits pursued by such legislative action included some that consisted essentially of benefits for other private landowners. Legislatures often
attempted to influence or control the development of land for particular productive purposes thought to be in the public good. Legislatures
compelled owners of undeveloped land to develop it, beyond what was
required by the original grants,35and compelled owners of wetlands to
participate in drainage projects.36 Owners risked losing preexisting
mineral rights if they failed to conduct their mining with sufficient
promptness.37 Owners of land suitable for iron forges risked losing
their land if they declined to erect such forges themselves.38 In towns
and cities, landowners were constrained by measures intended to channel the spatial pattern of development, to optimize the density of
habitation, to promote development of certain kinds of land, and to
implement aesthetic goals.39
Part II of the Article uses colonial land use law to reconstruct the
way that colonial lawmakers thought about public authority and private rights. This law, by its volume and variety, evidences a onceconventional concept of private property according to which the right
of landowners to control and utilize their land remained subject to an
obligation to further important community objectives reflected in legislation. The legitimate scope of public authority included matters far
afield from public health or safety, extending to such highly nuanced
notions of public harm as lack of aesthetic uniformity among urban
buildings.40 This concept of private property permitted government to
obtain certain positive externalities from private land use, as well as to
avoid negative ones.41 The fact that regulation of land use and distribution of the land were carried on at the same time, and that colonial
legislators themselves overwhelmingly represented the interests of
of Rep. Tauzin). The recently proposed Private Property Owners Bill of Rights, H.R. 790, o04th
Cong., ist Sess. (1995), declares: "Our democracy was founded on principles of ownership, use,
and control of private property. These principles are embodied in the Fifth Amendment to the
Constitution ... ." Id. at ? 2(a)(i).
35 See infra pp. 1260-61.
36 See infra pp. 1268-72.
37 See infra pp. 1265-66.
38 See infra p. 1267.
39 See infra pp. I273-8I.
40 See infra pp. 1281-82.
41 See infra pp. 1282-83.
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[Vol. I09:I252
landowners underscores the legitimacy that such regulations must have
had in the eyes of contemporaries.42 The Crown's review of colonial
legislation provides further evidence of the contemporary legitimacy of
colonial land use law: royal instructions did not overturn, and sometimes overtly encouraged, broad regulation of land use.43 The property rights concepts of the colonial era invite reconsideration of some
of the supposed innovations of early nineteenth century land use
regulation.44
Part III of the Article explores the doctrinal implications of early
land use law. The first and most fundamental consequence of rediscovering this history is that it destroys much of the basis for applying
the Takings Clause to land use regulation at all. Today's doctrine of
regulatory takings only makes sense as a reading of the Takings
Clause if, as the Court has said, land use regulation was confined to
injurious uses of land when the Fifth Amendment was adopted, with
regulation of noninjurious uses coming much later.45 The history
presented in this Article shows, to the contrary, that regulation of noninjurious uses of land was very common at the time of the nation's
founding. This prevalence implies that the Framers did not address
regulation in the Takings Clause because they did not regard regulation as a form of taking.46 Second, many parallels exist between colonial and modern land use regulation, particularly in terms of the
degree of government power exerted over private land and the types
of objectives pursued.47 The novelty of public efforts to govern private land use in the twentieth century has been grossly overstated by
detractors and supporters alike.48 Even controversial modern measures, like aesthetic zoning and wetlands regulation, have support in
colonial precedent.49 Third, in colonial America statutes and ordinances were a primary source of legal definitions of acceptable and
unacceptable uses of land, phrased in terms of nuisance and otherwise.50 This evidence undermines any historical basis for the Supreme
Court's insistence that traditionally, only courts defined unreasonable
uses of land.51 Legislative regulation of land use in pursuit of the
common good antedates the state constitutions and the Bill of Rights
42 See infra
p. 1284.
43 See infra p. 1286.
44 See infra pp. 1286-87.
45 See infra pp. 1290-91.
46 See infra pp. 1292-93.
47 See infra pp. I293-97.
48 See infra pp. I293-94.
49 See infra pp. 1294, 1296.
50 See infra pp. I297-99.
51 See infra pp. 1297-98.
COLONIAL LAND USE LAW
996]
I259
and merits recognition as part of the American legal and constitutional
tradition.52
I.
PUBLIC REGULATIONOF PRIVATELAND IN THE
AMERICAN
COLONIES
In exploring the exertion of public authority over private landowners, we must distinguish between the prospective and retroactive operation of laws governing the use of private land. The first English
settlers to patent a given piece of land derived title from some public
entity: a chartered company, a provincial land office, or a town.53
When distributing land, these public entities sometimes required settlers to perfect their ownership by making certain improvements on
the land, such as building a house or clearing an acre of land.54 Such
prospective, ex ante grant conditions are peripheral to the following
discussion, however, because they shed no light on private property
rights. When public authorities enforced such conditions they did not
diminish the owners' legal interests, because the rights received by the
original grantees were qualified by the grants.55 Similarly, when a legislature enacted a statute of general application, someone who patented land thereafter could not be said to have lost anything by the
operation of the statute. This Article addresses legal requirements imposed by statutes or ordinances that included persons already owning
land within their scope, and that therefore had an ex post facto effect
on the interests of landowners.
A. Encouraging Seating, Improvement, or Continued Use of Land
Once land was granted, public authorities sometimes imposed affirmative use requirements, overriding the preferences of landowners
who wanted to leave their land in its existing state or who preferred to
make only minimal improvements. These laws and ordinances reflected a policy judgment that any active use by a new grantee would
benefit the colony more than non-use by the prior owner, as well as a
normative judgment that failure to develop and use private land
unreasonably harmed the community. These laws conflict with the
modern principle that landowners are entitled to cease using their
52 See infra pp. I299-300.
53 See MARSHALL D. HARRIS, ORIGIN OF THE LAND TENURE SYSTEM IN THE UNITED
STATES76-79 (I953).
54 See, e.g., id. at 204. The use of grant conditions was not a matter of course, however, even
in the eighteenth century. Privy Council instructions to colonial governors frequently complained
of lands being granted without conditions of cultivation or improvement, and urged governors to
TO BRITISHCOLOensure that all grants contained such conditions. See 2 ROYAL INSTRUCTIONS
NIAL GOVERNORS 1670-1776, ? 801, at 564-65, ? 8I8, at 577, ? 838, at 588-89 (Leonard W.
Labaree ed., 1935) [hereinafter ROYALINSTRUCTIONS].
55 See William M. Treanor, Note, The Origins and Original Significance of the Just Compensation Clause of the Fifth Amendment, 94 Yale L.J. 694, 695 (I985).
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property for reasons that seem sufficient to them, and may simply hold
the property for future sale.
I. Failure to Seat or Improve Land. - One mechanism for encouraging development was to require landowners to seat or improve their
land or forfeit title, even if no such conditions had been attached to
their grants. A Massachusetts ordinance of 1634 declared that "if any
man that hath any greate quan[tity] of land graunted him, & doeth not
builde upon it or im[prove] within three yeares, it shalbe [ ]free for the
Court to disp[ose] of it to whome they please."56 The Plymouth colony
adopted a comparable measure:
That whereas land[s] are given [and] g[ranted] to p[er]sons upon supposall of their living upon them for the maintenance [and] strength of
society. If it fall out that p[er]sonsshall not occupie any such land[s] but
dep[ar]t from the same place, such former grant or grant[s]to be of none
effect but shall returne [and] be otherwise disposed of by the
Governm[en]t in generall or Towneship in p[ar]ticular as it shall fall
out.57
Ordinances in New Netherland required persons owning land in certain new villages to "take possession . . . and commence preparations
for fencing and planting the same . . . on pain of having the Lots and
Plantations which are not entered upon within that time, given and
granted to others, who may be disposed to improve them."58
A later New Netherland ordinance complained of landowners
whose land was:
56 Ordinance of Apr. I, 1634, I RECORDS
ANDCOMPANY
OF THEMASSAOF THEGOVERNOR
CHUSETTSBAY IN NEW ENGLAND114 (Nathaniel B. Shurtleff ed., Boston, Press of William
OF MASSACHUSETTS
White I853) [hereinafter RECORDS
BAY]. In quotations from this and other
early sources,I have suppliedletterselidedin the originaltexts.
57 Act of Nov. 15, 1636, II RECORDS
IN NEW ENGOF THE COLONYOF NEW PLYMOUTH
LAND6, I8 (photo. reprint I968) (David Pulsifer ed., Boston, Press of William White I86i) [hereinafter PLYMOUTH
RECORDS].
Earlier,Plymouthresidentsadopteda comparablemeasureover the votes of two landowners
presentand apparentlywithoutthe participationof many affectedabsenteeowners:
It is furtherenactedthat whereasformerlya smal[l]moyetyof land was allottedto each
[]family for their convenientsubsistencein the towne of Plymouth[viz.] to each p[er]son
an acre, [and] that now the said Acres lie void[,]the ancientinhabitant[s]being for the
most p[ar]tremovedfrom thence:Insomuchthat as formerlythey were the meanes of
subsisting in towne[,] now the p[ro]priety of p[er]sons in them elsewhere seated[,] hinder
othersfromcominginto the towne:by w[hi]chmeanesthe said towne is like to be dispeopled[.] It was thereforeagreedupponby the mutuallconsentof the whole (two p[er]sons
onely excepted)That all [and]everysuch p[er]son[and]p[er]sonsshould[and]did surrender [and]cast up theirrightin the said Acresthat they may be disposedof to such as doe
or shall inhabitethe said towne of New Plymouth....
Act of Oct. 28, 1633, II PLYMOUTHRECORDS,
supra, at 14.
58 Ordinance of Nov. 27, i658, LAWS AND ORDINANCES OF NEW NETHERLAND, 1638-1674,
at 361, 361 (E.B. O'Callaghan trans., Albany, N.Y., Weed, Parsons and Co. i868); see also Ordinance of Mar. 30, 1663, LAWSAND ORDINANCES OF NEW NETHERLAND, 1638-1674, supra, at
437 (orderingnew landownersin Wiltwyckto fencein theirlands"onpain of forfeitingthe lands
granted").
COLONIALLAND USE LAW
I996]
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[W]ild, waste, unoccupied and unfenced ... who, nevertheless, whenever
the lands are sought for by others, in order to cultivate them, again reclaim them, and will retain possession of them, to the serious damage of
the Public, the obstruction of Agriculture,and consequently to the loss of
the Honorable Company's long expected Tenths and other Revenues
59
The ordinance accordingly commanded landowners throughout the
province to "fence in and improve, within the term of six months, the
lands they lay claim to . . . on pain of forfeiting the obtained Lands
and the property thereof."60
A New York law issued by the Duke of York in 1665 provided
that if landowners did not "plant Seat or Inhabit" prior purchases
within three years, they would "forfeit their Right, Title, and Interest
therein."61 Similar orders pertained to Delaware, which at that time
had the same governor as New York.62 Such orders gave individual
citizens an incentive to report unseated lands to the court and to petition to receive the lands for themselves.63 The New York Assembly
later enacted a similar threat of forfeiture for unimproved portions of
certain large grants.64
59 Ordinance of Apr. 26, 1663, LAWSAND ORDINANCES
OF NEW NETHERLAND,
1638-1674,
supra note 58, at 438, 438.
60 Id., LAWSAND ORDINANCES
OF NEW NETHERLAND,
1638-1674, supra note 58, at 439.
Some landowners in New Netherland had received land subject to an explicit condition of imOF NEW NETHERproving the land. See Ordinance of Jan. i6, I657, LAWSAND ORDINANCES
LAND,1638-1674, supra note 58, at 294 (referringto "many and large tracts of land ... [patented]
on the express condition to cultivate and improve them");HARRIS,supra note 53, at 21o-II. As
to these owners, the threat of forfeiture did not alter preexisting rights. Generally, however, the
basis cited by ordinances for authorizing forfeiture was the violation of prior "Ordinances and
Edicts," not the violation of grant conditions. Ordinance of Apr. 26, 1663, LAWSAND ORDINANCESOF NEW NETHERLAND
1638-1674, supra note 58, at 438, 438.
61 Duke of York's Law Concerning Lands of Mar. I, 1665, I THE COLONIAL
LAWSOF NEW
YORK44, 44 (Albany, N.Y., James B. Lyon 1896).
62 A similar order by the Governor in 1678 declared that Delaware land previously taken up
but not "seated & improoved" was forfeited and would be disposed of as vacant land. Order from
the Governor of Oct. 25, I678, I RECORDSOF THE COURTOF NEW CASTLEON DELAWARE
1676-1681, at 243, 243 (1904). A county court in Delaware later ordered persons granted land "to
make settlement and Improovement within the space of one Yeare . .. ; In defect thereof they
forfeit their Interest ...." Order, COURTRECORDS
OF KENTCOUNTY,DELAWARE
1680-1705, at
4, 4 (Leon de Valinger, Jr. ed., 1959) (St. Jones County Ct. Nov. 17, I680). The court observed
that "itt is found by dayly Experience that Seuerall Persons haue [and] doe obtayne, Grants of the
Courts for Land and taking the same up doe Leaue the Land unsettled and Unimprooved
whereby others are hindered whoe are Reddy to make present Improovement." Id. (alteration in
original). This remark suggests that the court was not merely enforcing preexisting grant conditions or laws binding patentees at the time of their grants.
63 See, e.g., Judgment, i RECORDSOF THE COURT OF NEW CASTLE ON DELAWARE
1676-1681, supra note 62, at 370, 370-71 (Ct. of New Castle Jan. 6, I679[-8o]) (ruling on petition
OF THE COURTOF NEW
of Roelof Andries and Jacob Aertsen); Barentsen v. DeWitt, I RECORDS
CASTLEON DELAWARE1676-1681, supra note 62, at 483, 483-84 (Ct. of New Castle Sept. 6,
I68i).
64 See Act of May 16, I699, I THE COLONIAL
LAWSOF NEW YORK,supra note 61, at 412. A
later Assembly repealed this Act, but the Privy Council voided that repeal in 1708 and reinstated
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2. Failure to Continue to Use Seated Land. - A Virginia statute
of 1645 spoke of "the extreame prejudice which will necessarily ensue
to the collony by deserting of plantations which are now seated."65
Therefore, if landowners "deserted"their lands - even after making
improvements that would satisfy the conditions of a patent - those
lands would become forfeited and could be patented by others.66
Comparable provisions applied if a lessee deserted his leasehold: any
other person was entitled to take up the land on the same terms unless
the lessor caused the land to be seated.67 The land was not automatically confiscated by the state, as in the case of a penalty, but was
available for reassignment to citizens who would put the land to active
use.68 This procedure gave other citizens an incentive to locate deserted lands and to be the first to petition for them. The Virginia Assembly also promoted the conservation of existing housing, making it
unlawful "for any person so deserting his plantation . . . to burne any
necessary houseing that are scituated thereupon," providing instead
that such persons should "receive so many nailes as may be computed
by 2 indifferent men were expended about the building thereof[,] for
full satisfaction."69
North Carolina, too, addressed the problem of patentees who made
improvements to land but then left. An act of I669 provided that if
such persons did not return to their lands "and seate the same within
six months," it would be lawful "for the Governor and Council to lett
the Act of May i6, I699. See 2 ROYALINSTRUCTIONS,
supra note 54, ? 820, at 579; Elizabeth V.
Mensch, The Colonial Origins of Liberal Property Rights, 31 BUFF. L. REV. 635, 669 (I982); see
also id. at 664-65 (discussing Delaware's policy of annulling excessive land grants).
65 Act of Feb. 17, I644[-5], i THE STATUTES
OF ALL THE
AT LARGE;BEINGA COLLECTION
LAWSOF VIRGINIA291, 291 (photo. reprint I969) (William W. Hening ed., 2d ed., New York, R.
& W. & G. Bartow 1823) [hereinafter i LAWS OF VIRGINIA].
66 See id. The deserted-land legislation supplemented the conditional clause in contemporane-
ous land grants requiring that lands be seated within three years. See Act XVIII of Oct. 23,
x666, 2 THE STATUTES AT LARGE; BEING A COLLECTIONOF ALL THE LAWS OF VIRGINIA 244
(photo. reprint I969) (William W. Hening ed., 2d ed., New York, R. & W. & G. Bartow 1823)
[hereinafter 2 LAWSOF VIRGINIA](describing the conditional clause). The dispossessed landowner
was authorized by a later statute - that did not apply retroactively - to take up the same
amount of land elsewhere. See Act LXXIII of Mar. 13, I657[-8], I LAWSOF VIRGINIA, supra
note 65, at 468. This right in turn was later narrowed in scope. See Act of i661[-2], 2 LAWSOF
VIRGINIA, supra, at 91. Later this privilege was revoked entirely; thus the forfeiture became absolute. See Act LXIX of Mar. 23, I661[-2], 2 LAWSOF VIRGINIA,
supra, at 95.
In contrast, a later statute provided that patentees of "land heretofore granted" were not
obliged to "make any further, or other cultivation or improvement thereon, than was required by
the laws or instructions in the force at the time of obtaining the grant thereof." Act of Nov. 2,
1720, ch. III, para. VII, 4 THE STATUTES AT LARGE; BEING A COLLECTIONOF ALL THE LAWS
OF VIRGINIA8i, 83 (photo. reprint 1969) (William W. Hening ed., 2d ed., Richmond, Va., Franklin Press I820). However, this policy, too, was abandoned by later legislation. See infra notes
164, I88-I90 and accompanying text.
67 See Act VII of Feb. 17, 1644[-5], I LAWSOF VIRGINIA,
supra note 65, at 291.
68 See Act LXIX of Mar. 23, I66i[-2], 2 LAWSOF VIRGINIA,
supra, at 95.
69 Act VII of Feb. 17, I644[-5], i LAWSOF VIRGINIA,
supra note 65, at 291, 291.
COLONIAL LAND USE LAW
I996]
I263
it out to any other person to doe it."70 Such statutes gave residents an
incentive to report unoccupied private lands and to repatent them
themselves. Another early North Carolina restriction aimed at persons
who held land for resale rather than for their own use prohibited any
person from selling land "until he hath binn two compleate years at
least an inhabitant of the County."71
South Carolina invoked the same rationale of non-use in a statute
appropriating land formerly granted to the Yamosee Indians, stating
that the tribe had:
desertedthe said lands ... by which meansthe said lands are become
vacant and unsettled;and whereasthe well peoplingof any countrynot
only enrichesit in a time of peace,but also strengthensit in a time of
war . . . and whereasthe Yamoseeshavingforsakenthe said large tract
of land, it is highlyreasonablethat the same lands shouldbe appliedto
the publickbenefitof this Province;and for the better settling of the
the said lands to and for the encouragingof all
same, by appropriating
such new comersas will come and settle upon the same . . 72
Compulsory Enclosure of Agricultural Land
The fencing regulations for private land originally adopted by most
colonies took the form of a liability rule, premised on the practice of
letting animals range freely, rather than that of a property rule. A
statute defined what constituted "a sufficient fence" around cleared
B.
70 Act of Oct. 15, I669, 25 THE STATERECORDSOF NORTHCAROLINA 121, 121 (Walter
Clark ed., I906). The "first labourer" would receive the lease payments. Id. This statute was
OF NORTHCAROLINA,
later reenacted. See Act of I715, ch. V, 25 THE STATERECORDS
supra, at
I59. It remained in effect throughout the colonial period. See id.
The principle that non-use by the first owner should lead to forfeiture was also applied to
timber. "For the preserving of Timber," Connecticut imposed fines upon "whosoever shall fell any
Timber Tree within this Colony, and not improve it within three months after he hath fell'd it
(unless he be prevented by sickness or otherwise inevitably)." Act Concerning Timber of Oct.
OF CONECTICUT
COLONIE65, 65 (Hartford, Conn.,
I672, THE GENERALLAWSAND LIBERTIES
see Act of 1658,II PLYMpublisher unknown I865) (1673) [hereinafter LAWSOF CON[N]ECTICUT];
OUTH RECORDS, supra note 57, at 203 ("[W]hosoever shall or hath felled any timber on the
Comon and doth not either square or rive it within halfe a yeare after it is felled; It shallbee
lawfull for any other to make use therof as hee shall see meet.").
71 Act of Oct. I5, 1669, 25 THE STATERECORDS
OF NORTHCAROLINA,supra note 70, at 119,
120 (the transferring of rights). The Act referred to "divers persons who resort into this County
and perhaps in a short time leave it againe yett nevertheless whilst they are here they make sale
of their Rights to land[,] which thing may prove very prejudiciall to our Lords Propriertorsand to
OF NORTHCAROLINA, supra
the speedy setlement of this County." Id., 25 THE STATERECORDS
note 70, at 119-20. This restriction was later reenacted. See Act of 1715, ch. V, 25 THE STATE
RECORDS OF NORTH CAROLINA, supra note 70, at I59.
72 Act of June I3, 17I6, 2 THE STATUTESAT LARGEOF SOUTHCAROLINA641, 641-42
(Thomas Cooper ed., Columbia, S.C., A.S. Johnston I837). The same passage noted that these
Indians were presently engaged in "war ... against us" and had "gone over to the French and
AT LARGEOF SOUTHCAROLINA,
supra, at 64I. The outbreak
Spaniards." Id., 2 THE STATUTES
of war was not cited as the basis for taking the land, however, but merely explained why the
Indians had deserted their land.
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[Vol. I09:I252
ground;73owners of wandering animals were liable for the damage the
animals inflicted on enclosed ground only if the fence satisfied the
statutory requirement. Landowners were free to enclose or not to enclose as they thought best.
Sometimes, however, public authorities made fencing mandatory
rather than optional, imposing penalties for noncompliance.74 Such an
ordinance, applicable to "Lands at the South river" in New Netherland, commanded that each landowner "effectually inclose his property, whether it be a lot or plantation," or pay a fine.75 The stated
rationale was that:
[T]he prosperity of the community depends on the cultivation of the soil,
and that it is, therefore, necessary that each one, for the preservation of
the Lands which have been granted to him, keep them inclosed, in order
that the people may preserve undamaged, and avail themselves of the
labor they bestow thereon.76
A later ordinance applying to the same district imposed a higher fine,
to be doubled after seven days. Furthermore, the statute directed that
a landowner who remained in default even longer, "being considered
of an obstinate disposition, shall be deprived forever of his lands,
which shall be at the disposal of the Hon[ora]ble Company, to distribute to others."77 Landowners throughout the province were commanded the following year to fence their lands, "so that the Director
General and Council as well as the Inhabitants may know and see
what lands have been granted and what remain still to be granted";to
provide an incentive, the Director General and Council decreed that
"none of our good Inhabitants shall be hindered or prevented to chop
Firewood or cut Timber on unfenced Lands, wherever it shall best suit
the convenience of the Inhabitants."78 South Carolina enacted similar
legislation.79
An intriguing variation on the fencing requirements appeared in
Connecticut. In New England towns, much land was originally culti73 One example of "a sufficient fence" was "fower foote and an halfe high, and close downe to
the bottom." Act LXXVII of Mar. 23, I66I[-2], 2 LAWSOF VIRGINIA,
supra note 65, at Ioo, 1oI;
see HARRIS,supra note 53, at 3I4-I5.
74 See, e.g., Act of Oct. 1678, ch. I, THE GRANTS,CONCESSIONS,
AND ORIGINAL
CONSTITUTIONSOF THE PROVINCE
OF NEW JERSEYI28, 128-29 (2d ed., Somerville, N.J., Honeyman &
OF NEWJERSEY];
Act of July 27, 1721, No.
Co. 1881) (1752) [hereinafter GRANTS& CONCESSIONS
I22, 124 (Thomas Cooper ed.,
433, para. VI, 3 THE STATUTESAT LARGEOF SOUTHCAROLINA
Columbia, S.C., A.S. Johnston I838).
75 Ordinance of Feb. 23, 1656, LAWSAND ORDINANCES
OF NEW NETHERLAND,
1638-1674,
supra note 58, at 218, 2I8.
76 Id.
77 Ordinance of Nov. 27, 1656, LAWSAND ORDINANCES
OF NEW NETHERLAND,
1638-1674,
supra note 58, at 266, 266.
78 Ordinance of
Jan. i6, 1657, LAWS AND ORDINANCES OF NEW NETHERLAND, 1638-1674,
supra note 58, at 294, 295.
79 See Act of June 23, I722, No. 461, ch. VI, 3 THE STATUTES
AT LARGEOF SOUTHCAROLINA,supra note 74, at 176, 177-78.
COLONIALLAND USE LAW
I996]
I265
vated in common by groups of proprietors in common fields.80 Over
time, towns partitioned these common fields as part of their general
transition from joint to individual ownership and management of land,
associated by historians with a decline in the strength of community
sentiment in the towns.8' In 1746, however, after this transition to
individual holdings was largely complete, Connecticut enacted a statute authorizing owners of "lands lying convenient to be improved as a
common field" to form common fields, compelling participation by unwilling owners of up to one-sixth of the proposed aggregation.82
C.
Mining: Forcing the Pace of Operations
Lawmakers sometimes tried to ensure the most productive and expeditious use of mining resources by adopting statutes to increase the
pace of mining operations. The Plymouth colony provided that those
with rights to mine certain valuable minerals could lose their rights by
inaction:
if it happen that he that fynds yt [a mine] or the towne where it is found
shall neglect to worke it by the space of a whole yeare next after it is
found. Then it shalbe lawfull for the gover[n]mentto appoynt any other
man to work it for his owne benefitt.83
Connecticut's copper-mine legislation went further. It authorized
the taking of private property that was already devoted to the desired
use - mining - but was not being utilized as expeditiously as the
Assembly desired. The Assembly provided statutory guidance for improved management of the mines, based on the premise that "a publick benefit may arise."84 The statutes affected two preexisting groups:
proprietors of the unmined ore and their lessees. Each group consisted
of individuals acting jointly for some purposes but owning distinct interests.85 The proprietors owned separate, ascertainable portions of
the mine. The Assembly, however, modified the prior status quo by
providing that individuals who lagged behind in using their separate
80 See GEORGE L. HASKINS, LAW AND AUTHORITY IN EARLY MASSACHUSETTS 70 (I960);
Anne B. MacLear, Early New England Towns, 29 STUD. HIST. ECON. & PUB. L. I, 87-93 (photo.
reprint I967) (I908).
81 See KENNETH A. LOCKRIDGE, A NEW ENGLAND TOWN: THE FIRST HUNDRED YEARS
79-83 (1970); Eric T. Freyfogle, Land Use and the Study of Early American History, 94 YALE
L.J. 7I7, 729 (I985) (book review).
82 Act of Oct. 9, 1746, 9 THE PUBLIC RECORDS OF THE COLONY OF CONNECTICUT 239, 239
(Charles J. Hoadly ed., Hartford, Conn. Case, Lockwood & Brainard Co. 1876) [hereinafter PUBLIC RECORDS OF CONNECTICUT].
83 Act of Mar. 2, 1640, II PLYMOUTH RECORDS, supra note 57, at 37, 37.
84 Act of May 20, I709, 5 PUBLIC RECORDS OF CONNECTICUT, supra note 82, at 104, 104.
85 Most of the legislative provisions were analogous to those found in the general statutes
governing the management and use of common fields; they authorized a majority interest to make
decisions for the group with respect to common facilities, and obliged all owners to contribute to
the cost of improvements
82, at I05.
and repairs. See id., 5 PUBLIC RECORDS OF CONNECTICUT, supra note
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HARVARD LAW REVIE W
[Vol. 109:I252
property could be dispossessed of it by others. When a proprietor
failed to "improve and carry on his ... part or proportion in the said
mines," any other proprietor could lawfully "enter upon and improve"
that person's part of the mine.86 The true owner did not receive any
compensation for the ore taken. Nor could the true owner even eject
the interloper, who was authorized to remain "till from the profits
thereof he shall be repaid four fold" for his costs.87 Both provisions
would have had the effect of promoting the steady working and development of the mines - regardless of the cost of capital, the price the
ore would bring, or the cost of labor - by exposing the property of
any proprietor or lessee who lagged behind to appropriation as a
windfall. The more active and better capitalized proprietors and lessees would have had a strong incentive to identify underutilized property and put it to their own use. This legislation must have worked to
the advantage of major investors from outside the colony, judging
from requests later made to the Assembly for extension of the acts
without alteration.88
These provisions cannot be explained purely in moralistic terms.
The threat of dispossession or forced sale would have fallen not only
on laggard or slothful owners, but also on any owners who lacked
capital, whose capital was otherwise engaged, or who chose to wait.
Moreover, the dispossession provision applied explicitly to a class of
owners who could not be deemed in any way accountable for their
inactivity: "orphans whose guardians shall refuse or neglect to improve
and carry on their wards parts and proportion ... in the affair of the
copper mine."89
D.
Redirecting Riparian Land to New Uses
Besides encouraging settlement and continued use of private land,
lawmakers sometimes attempted to redirect private land to particular
86 Id.
87 Id. A comparable statutory provision affected the right to use mining equipment. When a
lessee failed to "use and improve" his interest in the "mills, dams, works, buildings or tools," other
lessees of the same group were authorized to use the equipment in his stead. Act of May 11,
1721, 6 PUBLIC RECORDSOF CONNECTICUT, supra note 82, at 251, 255. The lessees - also
known as the undertakers - owned distinct, ascertainable claims to the use of processing
facilities.
88 See Act of May 9, 1723, 6 PUBLICRECORDS
OF CONNECTICUT,
supra note 82, at 371, 371
(noting request for revival of statute by investors in Holland and New York); Act of May 13,
OF CONNECTICUT,
I731, 7 PUBLICRECORDS
supra note 82, at 337, 339 (noting request for revival
of statute by Jonathan Belcher of New York).
89 Act of May 13, I718, 6 PUBLICRECORDS
OF CONNECTICUT,supra note 82, at 84, 86. In
contrast, an earlier statute establishing majority management of copper mines in Wallingford had
specifically provided that "such minors or others, incapable or refusing to act in the improvement
or leasing [of] the said mines, shall in no wise lose their interest in proportion of the profits
OF CONNECTICUT,
arising from the said mines." Act of May 8, I712, 5 PUBLICRECORDS
supra
note 82, at 315, 316.
I996]
COLONIALLAND USE LAW
I267
preferred uses. These statutes targeted not just undeveloped or unused
land, but also land thought to be underdeveloped or underused. The
land and the intended use were private; the benefit to the public accrued only indirectly.
Maryland's mill act was premised on the failure of certain landowners, those owning potential mill-sites, to develop their land appropriately. The preamble declared that
[T] he most part [of] the places fitt for Setting up watermills are already
in the hands of persons under age or unable to be att the Charge of
building a watermill or else of such as are wilfully obstinate in for bidding and hindring such persons as would purchase the said places fitt for
building watermills, and sett them up to the Encrease of our trade and
Naviga[tion] much to the Publick damage of the Province.90
The mill act established a procedure whereby someone proposing to
build a grist-mill could condemn a ten-acre mill site for a period of
eighty years.91 Once the appropriate writ had been returned, landowners could forestall condemnation only by giving security that they
would build a grist-mill on their land themselves.92 Many colonies enacted less drastic mill acts.93
Maryland used a similar statutory mechanism to promote the development of land suitable for iron foundries and forges. An act of
1719 authorized persons wishing to build a water-powered forge or
foundry to condemn one hundred acres of land "next adjoining to any
Run of Water" not previously cultivated and to have "free Egress and
Regress to the said Mill through any Man's Land next adjoining."94
Once condemnation proceedings were under way, landowners could
only avoid losing their land by building an ironworks themselves.95
Carrying on ironworks, the Assembly declared, "might not only be
considerably advantageous to the Persons immediately concerned
therewith, but also to the Public Trade of Great-Britain, and this
Province."96 Ironworks were not meant to serve the public; the public
was to be benefitted only collaterally, through the promotion of enterprise and the consequent increase in "the Peopling of this Province."97
90 Act of May 8, 1669, 2 ARCHIVESOF MARYLAND211, 211-12 (William H. Browne ed.,
Baltimore, Maryland Historical Society 1884).
91 See John F. Hart, The Maryland Mill Act, 1669-1766: Economic Policy and the Confiscatory Redistribution of Private Property, 39 AM. J. LEGALHIST. I, I-3 (I995).
92 See Act of May 8, I669, 2 ARCHIVES
OF MARYLAND, supra note go, at 21I, 213.
93 See Head v. Amoskeag Mfg. Co., 113 U.S. 9, 17 (1885).
94 Act of I719, para. I, 33 ARCHIVES
OF MARYLAND
467, 467, 468 (Clayton C. Hall ed.,
I9I3).
95 See id., 33 ARCHIVES
OF MARYLAND,
supra note 94, at 468.
96 Id., para. I, 33 ARCHIVES
OF MARYLAND, supra note 94, at 467.
97 Id.
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Compulsory Drainage of Wetlands for Agriculture
Legislatures sometimes compelled unwilling owners of meadow,
marsh, and other kinds of wetland to participate in and share the
costs of drainage projects desired by their neighbors. The underlying
social conflict is illustrated by the preamble to a New Jersey statute:
Whereas there are ConsiderableQuantities of Meadows and Marishes in
the Towne of Burlington Adjoyneing to and on boath Sides of the Creek
that Surrounds the Island which at present are overflowed by the Tides
and many of them So Low that renders them of much less vallue then
[sic] otherwise they would be to the owners, and most of the said owners
foreseeing that by an Easie charge the Tide may be Stoped - by which
A great advantage will acrew to the Towne of Burlington in generall and
to the owners in perticularwhich at present they cannot doe without the
Consent of all those Concerned the Majority of which Humbly prays
that by an Act of Generall Assembly they may be Enabled to make two
Dams to Stop out the tide from overflowing the Said Meadows and
Marishes.98
This act authorized "the Major part" of the owners to erect two dams,
and to "[r]eceive from the respective owners of the said Meadows and
Marishes their severall proportions of the sums that shall be expended."99 An action for debt was authorized against landowners refusing to pay the assessed sums.100 A later amendatory act reiterated
that landowners who refused to attend meetings would "[n]evertheless
be Concluded and obliged by such Rules and methods as are Agreed
to."101
Legislation compelled owners to participate in drainage projects in
Massachusetts,102 Connecticut,103 New York,104 Pennsylvania,'05 and
98 Act of Feb. 0, I7Io[-II], 5 LAWS OF THE ROYAL COLONY OF NEW JERSEY 353, 353
(Bernard Bush ed., 1986) [hereinafter 5 LAWS OF NEW JERSEY].
99 Id.
100 See id., 5 LAWS OF NEW JERSEY,
supra note'98, at 354.
101 Act of
Jan. 26, I7I6[-7], 5 LAWS OF NEW JERSEY, supra note 98, at 395, 397.
102 See Act of Nov. 21, 1702, ch. 11, I THE ACTSANDRESOLVES,
PUBLICAND PRIVATE,OF
THE PROVINCE
OF THE MASSACHUSETTS
BAY 506 (Boston, Wright & Potter I869) [hereinafter 1
ACTS & RESOLVES OF MASSACHUSETTSBAY].
103 See Act of May 1711, 5 PUBLIC RECORDS OF CONNECTICUT,supra note 82, at 220; Act for
Appointing and Directing Commi[ss]ions of Sewers, and Scavengers, ACTS AND LAWS OF HIS
MAJESTY'S ENGLISH COLONY OF CONNECTICUT,IN NEW-ENGLAND, IN AMERICA 216 (New Ha-
ven, Conn., Thomas & Samuel Green I769) [hereinafter ACTS & LAWSOF CONNECTICUT].
104 See Act of Feb. 6, 1773, ch. I588, 5 THE COLONIAL
LAWSOF NEW YORK,supra note 61,
at 483; Act of Feb. 6, I773, ch. 1589, 5 THE COLONIAL
LAWSOF NEW YORK,supra note 6i, at
486.
105 See, e.g., Act of Feb. 17, 1762, ch. CCCCLXXV, 6 THE STATUTES
AT LARGEOF PENNSYLVANIA FROM 1682 TO 1801, at I60, 162, I66-68 (James T. Mitchell & Henry Flanders eds.,
Harrisburg, Pa., Wm. Stanley Ray 1899) [hereinafter 6 STATUTES AT LARGE OF PENNSYLVANIA];
Act of Mar. 4, 1763, ch. CCCCXCII, 6 STATUTES
AT LARGEOF PENNSYLVANIA,SUpra,at 268,
AT LARGEOF PENNSYLVANIA,
269-70; Act of Feb. 15, 1765, ch. DXXV, 6 STATUTES
supra,at
411, 412-I3.
COLONIAL LAND USE LAW
I996]
I269
South Carolina,106as well as in New Jersey.107 Such legislation overrode the preferences of individual landowners who wished to continue
using their land in its present state. It compelled owners to accept a
physical transformation of their land and to adapt their use of the
land correspondingly, as well as to pay for the change and even join in
liability for damages to outsiders.108 Only rarely was a drainage statute narrowly tailored to prevent "free-riding"yet not compel financial
participation by unwilling landowners.109
It might seem that the drainage acts merely obliged landowners to
pay for an unambiguous benefit conferred, because the drainage acts
recited that the landowners who were obliged to pay would be
"greatly benefited" by the alteration in their land.110 But before we
conclude that nonconsenting owners sought to receive an advantage
without paying for it, we must consider whether participation in such
drainage projects was in fact advantageous for all affected owners.
Meadow and marsh -
tidal or inland -
were widely utilized as a
naturally occurring, low-maintenance source of hay for livestock.1l
Meadow and marsh were prized features of the landscape for the
founding settlers;"2 their location was a critical factor in determining
the location of early settlements.13 The availability of "sufficient
106 See, e.g., Act of May 8, I754, No. 820, 7 THE STATUTES
AT LARGEOF SOUTHCAROLINA
506 (David J. McCord ed., Columbia, S.C., A.S. Johnston I840); Act of Apr. 12, 1768, No. 969, 7
THE STATUTES AT LARGE OF SOUTH CAROLINA, supra, at 5I3.
107 See, e.g., Act of 1771, 5 LAWSOF NEWJERSEY,supra note 98, at IO7;Act of 1771, 5 LAWS
OF NEW JERSEY,supra note 98, at 99; Act of 1764, 4 LAWSOF THE ROYALCOLONYOF NEW
JERSEY1760-1769, at 249 (Bernard Bush ed., 1982) [hereinafter 4 LAWSOF NEW JERSEY].
Relatively few of the drainage acts indicated consensus in favor of drainage projects. But see
Act of 1774, 5 LAWSOF NEW JERSEY,supra note 98, at 263, 263 (explaining that "publick Notice
of this Application hath been given, and no one attending to shew any Reason to the contrary');
Act of Nov. 28, 1760, 4 LAWSOF NEW JERSEY,supra, at 55, 55 (noting "the mutual Consent of
all the said Owners and Possessors" of the affected lands).
108 See Act of I775, 5 LAWSOF NEW JERSEY,supra note 98, at 342, 345; Act of 1772, 5 LAWS
OF NEW JERSEY,supra note 98, at 140, 144; Act of I771, 5 LAWSOF NEW JERSEY,supra note 98,
at 107, 109.
109 See Act of 1762, 4 LAWSOF NEW JERSEY,supra note 107, at 184, I86-87 (explaining that
no landowners were required to contribute toward the cost of dams and banks on Pumpessy
Creek "except such of the said Owners and Possessors who have petitioned for this Act ... until
such Time as the said other Owners and Possessors of the Residue of the said Marsh or Swamp
shall begin to improve the same").
.
110 Act of 1771, 5 LAWSOF NEW JERSEY,supra note 98, at 99, IO2.
111 See
PERCY
W.
BIDWELL
& JOHN
I.
FALCONER,
HISTORY
OF AGRICULTURE
IN THE
NORTHERNUNITEDSTATES1620-1860, at 102-03 (1941); id. at 234-35 (explaining that in Connecticut Valley, natural overflowing of rivers into low-lying meadows "caused native grasses to
IN THE
yield large crops without ever plowing"); i LEWISC. GRAY,HISTORYOF AGRICULTURE
IN NEW
AGRICULTURE
UNITEDSTATESTO 1860, at 139 (I94I); HUBERTG. SCHMIDT,
SOUTHERN
JERSEY95-96 (I973).
112 See HOWARDS. RUSSELL,A LONG,DEEP FURROW:
THREECENTURIESOF FARMINGIN
NEW ENGLAND26 (abr. ed. I982).
113 See id. at 31; JOHNR. STILGOE,COMMON
OF AMERICA,1580 TO 1845, at 46
LANDSCAPE
WILDERNESS
TO FRUITEDPLAIN251 (1994).
(1982); GORDONG. WHITNEY,FROMCOASTAL
I270
HARVARD LAW REVIEW
[Vol. I09:I252
meadow and marsh" was a selling point in colonial promotional literature.1l4 Meadow and marsh in an essentially natural state continued
to be used for hay throughout the colonial period. Such lands were in
private hands because landowners had chosen them for use in their
natural state. 15
Because meadow and marsh were not idle assets, compulsory
drainage legislation was far more intrusive than the legislation aimed
at forcing the owners of unimproved deserted land to use it productively.116 What was at stake was not whether marsh and meadow
should be used, but how they should be used. Drainage was intended
to permit intensive methods of agriculture."7 Some landowners, however, would have had good reason to object to a forced investment in
such drainage projects, and to prefer adherence to conventional methods of agriculture. Not everyone's wetlands would have been equally
benefited by drainage, because not all affected lands were equally wet
- often a single drainage project would have affected meadow and
marsh, or marsh and swampl18 - and because not everyone wanted
to use the land in the same way. A drainage project might greatly
benefit owners of the lowest and wettest land who planned capitalintensive cultivation, while making the meadows of others overly dry
and thus less valuable for hay.19 Calculation of each landowner's assessment, generally based on the quantity of land drained rather than
the respective degrees of benefit, would also tend to disadvantage
those landowners who did not want their land drained in the first
place.120
114 A Brief Account of the Province of East-Jersey, in America, in SAMUELSMITH,THE HISTORY OF THE COLONY OF NOVA-CAESARIA,OR NEW JERSEY 539, 540
(Burlington,N.J., James
Parker 1765).
115 See BIDWELL& FALCONER,
supra note III, at Io4 (quoting a Pennsylvania agricultural
writer who stated in I8oi that "[tJilllately a farm without irrigated or bottom meadow, was never
much valued"); SCHMIDT, supra note i I, at 96.
116 See supra pp. 1260-61.
117 See CARLR. WOODWARD,
AND POLITICKS
PLOUGHS
79 (1941).
118 See, e.g., Act of 1772, 5 LAWSOF NEW JERSEY,supra note 98, at 140, 140 (concerning
"Meadows, low Land and Swamps");Act of Feb. Io, 17IO[-II], 5 LAWSOF NEW JERSEY,supra
note 98, at 353, 353 (concerning "Meadows and Marishes");Act of Feb. 17, 1762, ch. CCCCLXXV, 6 STATUTESAT LARGEOF PENNSYLVANIA,
supra note Io5, at i60, I6o (concerning
"marsh and cripple land" and "meadow ground").
119 See Act of 1774, 5 LAWSOF NEW JERSEY,supra note 98, at 284, 287 (stating that "such
Meadows in dry Seasons often suffer");Act of 1765, 4 LAWSOF NEW JERSEY,supra note Io7, at
358, 360. For some landowners, the solution might have been to build additional dams, banks or
flood gates (at their own expense) to permit the "watering"of their lands, thus paying twice to
obtain a condition that had occurred naturally before the damming. See id.
120 Connecticut's drainage act recognized that different lands would be benefitted to varying
degrees, and directed the managers of the drainage project to take this into account in calculating
the respective assessments. See Act of May I711, 5 PUBLICRECORDSOF CONNECTICUT,
supra
note 82, at 220, 221 (commanding managers to "hav[e] regard to each persons [sic] quantity of
land, and benefits to be received thereby, as equally according to their best judgment"). Presumably the benefits of drainage also varied elsewhere, but other colonies assessed costs to landowners
I996]
COLONIAL LAND USE LAW
I27I
To the extent that draining the land required using the land differently, specific assets that landowners had in place for particular uses,
from know-how to equipment, might have been rendered useless.
Even if other reasons to abstain from draining the land were lacking,
some landowners (or tenants) would have lacked the additional capital
required, not only to pay for the drainage but also to improve and
utilize the new tillage land.121 Leaseholds might have been disrupted
if tenants were unable to adapt profitably to the changed character of
the land. Preambles to drainage acts recited that land turned from
marsh into meadow would be "of great Benefit,"122but to whom?
Only the relatively affluent and ambitious landowners, prepared to
make the transition into more capital-intensive, innovative methods of
agriculture, would have realized the full benefits of such drainage.123
The affluent landowning elite were the moving force behind legislative
petitions seeking compulsory drainage acts.124 Drainage projects were
inherently speculative;125not everyone would have been able to afford
the investment. That the interests of affected landowners conflicted is
indicated by the penalties that legislatures were obliged to impose
upon landowners who failed to keep drainage ditches on their own
land clear,126and upon persons who breached the dikes.127
Colonial drainage acts rested on the premise that it was appropriate for the legislature to compel landowners to participate in projects
that would alter the character of their land, and to share in the cost of
such projects, because wider participation would permit a lower unit
simply according to the amount of land drained. See, e.g., Act of 1775, 5 LAWSOF NEW JERSEY,
supra note 98, at 342, 343; Act of Feb. 17, 1762, ch. CCCCLXXV, 6 STATUTESAT LARGEOF
PENNSYLVANIA, supra note Io5, at i6o, 164.
121 For some
landowners, it was doubtful whether even the assessed costs of drainage could be
met by the expected return from supposed improvement. One statutory provision for recovering
assessments from absent landowners, by leasing their lands, referred to the possibility that the
lease payments might not be sufficient, and provided for collecting the deficiency. See Act of Jan.
26, i716[-7], 5 LAWSOF NEW JERSEY,supra note 98, at 395, 398.
122 Act of Nov. 28, 1760, 4 LAWSOF NEW
JERSEY,supra note 107, at 66, 66.
123 See BIDWELL & FALCONER, supra note iii, at 103 (stating that meadow irrigation projects
"often entailed large investment of capital").
124 See THOMASL. PURVIS,PROPRIETORS,
AND PAPERMONEY:LEGISLATIVE
PATRONAGE
POLITICSIN NEW JERSEY,1703-1776, at 182-85 (1986).
125 See JOYCEE. CHAPLIN,AN ANXIOUSPURSUIT:
ANDMODERINNOVATION
AGRICULTURAL
NITY IN THE LOWERSOUTH,1730-1815, at 229-31 (1993).
126 See, e.g., Act of I774, 5 LAWSOF NEW JERSEY,supra note 98, at 284, 286; Act of 1771, 5
LAWSOF NEW JERSEY, supra note 98, at 99, 0oo. If drainage indeed uniformly benefited all
lands, it would have been in these landowners' interests to keep their ditches clear; the problem
of noncompliance would not then have been so widespread. Instead, some owners were able to
optimize the wetness of their land by allowing their ditches to clog up a bit.
127 See Act of Feb.
1765, ch. DXXV, sec. XXII, 6 STATUTESAT LARGEOF PENNI5,
SYLVANIA,
supra note o05 at 411, 423; Act of Feb. 17, 1762, ch. CCCCLXXV, sec. XXI, 6 STATat 160, 172-73. Digging through a large
UTESAT LARGEOF PENNSYLVANIA,
note
supra Io5,
embankment would have been a demanding task, probably not normally undertaken unless a
direct benefit were expected.
HARVARD LAW REVIEW
1272
[Vol. 109:1252
cost.128 The expected public benefit was to be derived indirectly from
a private benefit, through the greater prosperity that some landowners
would enjoy after making their land capable of greater productivity.
F.
Use of Private Land by Members of the Public
Some colonies allowed members of the public to use private land
for certain purposes. For example, the Plymouth colony permitted
members of the public to hunt and fish on private land, subject only
to liability for actual damage: "That fishing fowling hawking hunting
be freely allowed provided if any damage come to any [par]ticular
[person] by the prosecu[tion] of such game[,] restitu[tion] be made or
the case actionable."129This law is interesting because it creates essentially a liability rule rather than a property rule: it withholds one of
the most basic rights of ownership - the right to exclude. Other fishermen could be excluded only by obtaining a special grant to this effect: "if any man desire to impro[v]e a place [&] stock it w[ith] fish of
any kinde for his private use it shall be lawfull for the Court to make
such a grant [&] forbid all others to make use of it."130A comparable
standard applied to grazing: "no[] man shall heard his owne Cattle or
other mens to the p[re]judice of any; att or neare his or theire house
[u]pon theire land; but [u]pon due notice and warning shall reforme it
or the case bee actionable."131
Virginia for a time permitted hunting on private land that was "not
planted or seated though taken up."132 The Concessions and Agreements of West Jersey permitted hunting on private land that was not
"inclosed, sown and planted."'33 The Plymouth colony even authorized prospecting on private land: "if any man [found] a Mine of gould
sil[v]er leade tinn bras copper or coale" on private land, then the landowner was required to pay the finder "five pounds for his paynes."134
128 See Act of Mar. 4, I763, ch. CCCCXCII, 6 STATUTES
AT LARGEOF PENNSYLVANIA,
supra
note io5, at 268, 268-69 (noting "less charge of banking").
129 Act of Nov. I5, 1636, ii PLYMOUTH
RECORDS,
supra note 57, at 6, i6.
130 Id. In I627, the General Court had ordered "[t]hat ffowling fishing and Hunting be free."
Act of Jan. 3, I627, II PLYMOUTH
RECORDS,
supra note 57, at 4, 5.
131 Act of I633, II PLYMOUTH
RECORDS,
supra note 57, at II7, II7.
132 Act LXXI of Mar. 23, i66i[-2], 2 LAWSOF VIRGINIA,
supra note 65, at 96, 96.
133 Act of I676, ch. VI, GRANTS& CONCESSIONS
OF NEW JERSEY, supra note 74, at 390, 391.
North Carolina permitted landowners to hunt on private lands adjoining their own. See Act of
Nov. 27, 1729, ch. V, 23 THE STATERECORDS
OF NORTHCAROLINA,
supra note 70, at II2, II3;
HARRIS,supra note 53, at 316.
134 Act of Sept. 7, I64I, II PLYMOUTH
RECORDS,
supra note 57, at 37, 37.
COLONIAL LAND USE LAW
I996]
I273
G. Barberry Removal
In several New England colonies, landowners were required to
destroy all barberry bushes on their lands to prevent wheat blight.135
Noncompliant landowners were subject to fine, besides bearing the expense of having the bushes removed. However, the barberry bush was
not a mere weed. English settlers themselves had introduced barberry
to the area and used its fruit in preparing food and medicine.136 Its
presence was harmful only to wheat farmers, not to neighboring landowners generally.
H.
Community Planning and Regulation
I. Restrictions on Location and Disposition of Dwellings. - In order to shape the spatial configuration of local communities and to facilitate social control over inhabitants, public authorities sometimes
dictated which private land might be used for residences.137 The General Court of Massachusetts Bay initially ordered that no dwelling be
built more than half a mile from the meeting house in any town, without permission from the Court.138 Some towns resisted this policy, and
after five years the General Court abandoned it.139 Yet other Massachusetts towns continued to follow the General Court's previous policy
of restricting dwelling locations.140 A similar goal of maintaining social and spiritual order is suggested by the Plymouth colony's order
prohibiting persons who had already been granted land from dwelling
there if "such lands lye soe remote as the Inhabitants thereof can not
ordinar[i]ly frequent any place of publicke worship."'141This prohibi135 See, e.g., Act of May 12, 1724, 7 PUBLIC RECORDS OF CONNECTICUT,supra note 82, at Io;
Act of Dec. 26, 1754, ch. 20, 3 THE ACTS AND RESOLVES, PUBLIC AND PRIVATE, OF THE PROV-
INCE OF THE MASSACHUSETTS
BAY 797 (Boston, Wright & Potter I878) [hereinafter 3 ACTS &
RESOLVES OF MASSACHUSETTSBAY]; ACT OF 1766, 6 RECORDS OF THE COLONY OF RHODE
ISLAND AND PROVIDENCEPLANTATIONSIN NEW ENGLAND 509, 509 (John R. Bartlett ed., Provi-
dence, R.I., Knowles, Anthony & Co. 1861) [hereinafter 6 RECORDSOF RHODEISLAND].
136 See Jane Steffey, Strange Relatives: The Barberry Family, AM. HORTICULTURIST,
Apr.
I985, at 4, 5. This land use conflict may also have gender overtones: legislatures (all men) intervened on behalf of wheat farmers (generally men) against those who prepared food and medicine
(generally women).
137 I exclude from this discussion laws directing colonists to live together in villages in anticipation of Indian attacks.
138 See Act of Sept. 2, 1635, I RECORDS
OF MASSACHUSETTS
BAY, supra note 56, at 156, 157;
OF MASSACHUSETTS
Act of Sept. 8, 1636, I RECORDS
BAY, supra note 56, at I77, 181. Maintaining proximate habitation in New England towns was a way of promoting spiritual unity and
other forms of social control. See HASKINS,supra note 80, at 69-73; MICHAELZUCKERMAN,
PEACEABLE KINGDOMS: NEW ENGLAND TOWNS IN THE EIGHTEENTH CENTURY 65-71,
93-I02
(I970).
139 See Act of May 13, I640, I RECORDS OF MASSACHUSETTSBAY, supra note 56, at 287, 29I;
STILGOE, supra note 113, at 48.
140 See STILGOE,supra note 113, at 44-45 (explaining that "[d]issension almost invariably derived from or produced spatial disintegration").
141 Act of 1663, II PLYMOUTH RECORDS, supra note 57, at 210, 2io.
HARVARD LAW REVIE W
I274
[Vol. I09:I252
tion was intended to promote "the settleing of New Plantations in an
orderly
way."142
Many towns exercised the right to regulate the disposition of land
within the township by approving sales or leases of land to outsiders.
Connecticut imposed heavy fines on landowners who sold or rented
land within townships to outsiders without first receiving such approval. The legislature complained that "Per[s]onsof ungoverned Conver[s]ation, thru[s]t them[s]elves into the Towns in this Colony," and
"by . . . hiring Lands or Hou[s]es; or by purcha[s]ing the [s]ame, en-
deavour to become Inhabitants in [s]uch Towns."143 Similar restrictions were instituted elsewhere.144 A milder form of restriction
required owners to offer their land for sale to townsmen before selling
to any outsiders.l45
Other constraints on land use were incidental to regulating particular types of people already in the community. For example, in the
Plymouth colony servants were entitled to receive land - at first from
the colony, later from their masters - when their terms of indenture
expired.'46 An ordinance of the General Court qualified this right: servants would receive such land only "if they be fownd fit to occupie it
for themselues in some convenient place.1"47 The Court also ordered
that no servants "be allowed to be howsekeeps or build any Cottages
or dwelling howses till such time as they be allowed by the Gov[erno]r
or some one or more [of the] Cowncell of Assist[ants]."'48 Similarly, a
142 Id. Owners of such remote lands were specifically forbidden to take up residence on them,
or "sell [them] or lett them to others that would." Id.
143 Act for the Admi[ss]ion of Inhabitants in Towns, ACTS & LAWS OF CONNECTICUT, supra
note 103, at 99, 99. No one could take up residence in a town "without the approbation of the
Authority in, and the Select-men of [s]uch town." Id. Fines were imposed for selling or leasing a
house or land to a stranger. Id., ACTS & LAWS OF CONNECTICUT, supra note IO3, at 99-IOO.
144 The Plymouth colony, for example, authorized heavy fines "if any of our Inhabitants shall
att any time sell or hier out accommodation in this Collonie To any that ha[v]e not according to
Court order bin accepted, into this Go[ver]nment." Act of June 5, 1678, Ii PLYMOUTH
RECORDS,
supra note 57, at 247, 248; accord Ordinance of Oct. 7, 1652, 2 THE EARLYRECORDSOF THE
TOWNOF PROVIDENCE
66-67, IO3 (Horatio Rogers, George M. Carpenter & Edward Field eds.,
Providence, R.I., Snow & Farnham City Printers I893) (applying similar requirements);Ordinance
TOWNOF BROOKHAVEN
UP To 1800, at 36 (Patchogue, N.Y., Office
of Mar. I8, 1664, RECORDS:
TOWNOF BROOKHAVEN
of the "Advance" i88o) (same); Ordinance of June 29, i666, RECORDS:
OF THETOWNOF CAMBRIDGE,
UP TO 1800, supra, at 39-40; Act of Dec. 5, 1636, THE RECORDS
OF CAMBRIDGE]
(same); HASMASSACHUSETTS,
1630-1703, at 24, 24 (1901) [hereinafter RECORDS
KINS,supra note 8o, at 71 (same).
145 See Act of Jan. 5, 1634, RECORDS
OF CAMBRIDGE,
EGLESsupra note 144, at o1; MELVILLE
COLONIES
TON,THE LANDSYSTEMOF THENEW ENGLAND
49-50 (Herbert B. Adams, ed., Baltimore, Johns Hopkins Univ. I886).
146 See Act of March 2, 1636, II PLYMOUTH
RECORDS, supra note 57, at 17.
147 Id., ii PLYMOUTH RECORDS,
supra note 57, at 17.
148 Id. It is not clear whether this rule applied to servants whose terms had expired or only to
those who were still servants, but either way it overrode the right of the servant as owner, tenant,
or licensee to build a house on private land.
I996]
COLONIAL LAND USE LAW
I275
town ordinance in North Carolina prohibited inhabitants from renting
"any Tenement to a Slave."149
Some land use restrictions represented efforts to optimize the density of habitation in towns. Connecticut's building requirement sought
to remedy "a great abuse in several Towns and Plantations in this Colony, of buying and purchasing Home lots, and laying them together,
by means whereof great depopulation may follow."'50 Conversely,
other restrictions aimed to prevent overly dense habitation. Cambridge, Massachusetts prohibited building any new dwelling houses
within the town without the consent of a majority of the townsmen.151
A New Jersey regulation prohibited owners of town lots from subdividing them by selling such lots "apart from his or their said house or
houses."152 Brookline, Massachusetts ordered that "not above one
dwelling house shall be built upon any one lot without the consent of
the town's overseers."'53 Brookhaven, New York ordered "that noe
accomodations shall be sowld by peece-meales, but Intire, without the
consent of the Overseeres and Constable ...
.154 Restriction of loca-
tion also took the form of dictating the sequence of urban development, as well as its ultimate form. The Director General and Council
of New Netherland, "in order to promote the population, settlement,
beauty, strength and prosperity" of the city of New Amsterdam, ordered that "no Dwelling-houses shall be built near or under the Walls
or Gates of this City" until the lots in certain other areas designated
for development had been "properly built on."155
2. Aesthetic Restrictions. The colonies commonly regulated the
height of buildings and the choice of building materials to prevent the
spread of fire in residential areas. Additional restrictions for the sake
of orderliness or beauty were imposed in some communities. In the
city of New Amsterdam, officials known as "surveyors"were directed
"to condemn and in future to stop all unsightly and irregular Build149 Ordinance of 1763, THE WILMINGTON
TOWNBOOK, 1743-1778, at 148, 148 (Donald R.
Lennon & Ida B. Kellam eds., I973).
150 Act Concerning Home Lotts of Oct. 1672, LAWS OF CON[N]ECTICUT, supra note 70, at 29,
29.
151 See Act of Apr. 4, 1636, RECORDS OF CAMBRIDGE,supra note 144, at 2I, 22.
152 Act of Dec. 5, I68I, ch. XIV, GRANTS& CONCESSIONS
OF NEW JERSEY, supra note 74, at
439, 439. The regulations applied to "all and every settlement and settlements already made," id.,
as well as to future ones, and were backed by a threat of forfeiture, see id. These regulations
OF
were endorsed by the Assembly. See Act of May 8, I682, ch. XXI, GRANTS& CONCESSIONS
NEW JERSEY, supra note 74, at 450, 450-5I.
153 Agreement of Oct. 12, 1636, MUDDYRIVERAND BROOKLINE
RECORDS,1634-1838, at 15
(n.p., J.E. Farwell & Co. I875).
154 Act of Mar. i8, I664, RECORDS:
UP TO 1800, supra note 144, at
TOWNOF BROOKHAVEN
36.
155 Ordinance of Jan. 15, I658, LAWSAND ORDINANCES
OF NEW NETHERLAND,
1638-1674,
supra note 58, at 325, 327.
I276
HARVARD LAW REVIEW
[V ol.I09:1252
ings, Fences, Palisades, Posts, Rails, etc."156 Citizens could not build
on or enclose lands "within or near the city" without the prior approval of these surveyors.157 Similarly, the New York Assembly later
authorized the city of New York to make "rules and orders for the
better regulation[,] uniformity[,] and gracefulnesse of such new buildings as shall be Erected for habitations."158 The city government directed surveyors to ensure that "a Regular Order and Uniformity may
be kept and observed in the Streets and Buildings."'59 Virginia authorized town directors and trustees to make "such orders, rules, and
directions, for the regular and orderly placing and building the houses
. . as to them shall seem expedient."160 Connecticut ordered that
"all dwelling or mansion houses ... in any Plantation or Town within
this Jurisdiction, shall be upheld, repaired and maintained sufficiently
in a comely way."'61
3. Compelling Development of Urban Land. - An early Virginia
statute addressed the problem of "antient proprietors" of land in James
City "who neither build themselves nor suffer others."162 Persons who
156 Ordinance of July 25, 1647, LAWS AND ORDINANCES OF NEW NETHERLAND, 1638-1674,
supra note 58, at 74, 74.
157 Id. This requirement of prior approval was backed by "a fine of 25 Carolus guilders and
the abatement of what they have built or set up." Id. This approval requirement was later
OF NEW NETHERLAND,
reiterated. See Ordinance of Apr. 9, i658, LAWSAND ORDINANCES
1638-1674, supra note 58, at 342, 343.
158 Act of Oct. I, 1691, ch. i8, I THE COLONIAL
LAWSOF NEW YORK,supra note 6I, at 269,
269 (emphasis added).
159 Ordinance of May 4, I691, I MINUTES OF THE COMMON COUNCIL OF THE CITY OF NEW
YORK 1675-1776, at 226, 226 (Herbert L. Osgood, Frederick W. Jackson, Robert H. Kelby &
Hiram Smith eds., 1905) [hereinafter MINUTES,CITY OF NEW YORK1675-1776]. The same requirement was contained in later enactments. See Ordinance of Mar. 15, I683[-4], i MINUTES,
CITY OF NEW YORK 1675-1776, supra,at I33, I37; Ordinance, 2 MINUTES, CITY OF NEW YORK
1675-1776, supra, at 8i. Similar restrictions were later imposed as a condition of future grants.
See, e.g., Ordinance of Dec. 5, I691, I MINUTES,CITYOF NEW YORK1675-1776, supra, at 259.
160 Act of Nov. 7, 1769, ch. LX, para. III, 8 THE STATUTES
AT LARGE;BEINGA COLLECTION
OF ALL THE LAWSOF VIRGINIA421, 422 (photo. reprint I969) (William W. Hening ed., Richaccord Act of Mar. 4, 1773,
mond, Va., J & G. Cochran 182I) [hereinafter 8 LAWSOF VIRGINIA];
ch. VI, para. II, 8 LAWSOF VIRGINIA,
supra, at 655, 656; Act of Feb. 10, 1772, ch. LIV, para. III,
8 LAWSOF VIRGINIA,
supra, at 617, 618; Act of Nov. 2, 1762, ch. XXVII, para. II, 7 THE STATUTES AT LARGE; BEING A COLLECTIONOF ALL THE LAWS OF VIRGINIA 608, 609 (photo. reprint
1969) (William W. Hening ed., Richmond, Va., Franklin Press I820) [hereinafter 7 LAWSOF VIRGINIA]; Act of Nov. 2, 1762, ch. XXIV, para. I, 7 LAWS OF VIRGINIA, supra, at 602, 602; Act of
Mar. 5, 1761, ch. XIII, para. IV, 7 LAWSOFVIRGINIA,
supra, at 407, 408-09; Act of Mar. 5, 1761,
ch. XII, para. II, 7 LAWSOF VIRGINIA,
supra, at 406, 406-07; Act of Feb. 22, I759, ch. XXIII,
para. V, 7 LAWSOF VIRGINIA,
supra, at 305, 307; Act of Sept. 14, I758, ch. m, para. IV, 7 LAWS
OF VIRGINIA, supra, at 234, 236. In each of these towns, some lots had already been purchased,
according to the cited statutes. The requirementof obtaining approval of the location and character of buildings was thus a retroactive restriction of the property interests of these prior
purchasers.
161 Act Concerning Home Lotts of Oct. 1672, THE LAWSOF CON[N]ECTICUT,
supra note 70, at
29, 29.
162 Act XIX of Mar. 2, i642[-3], I LAWSOF VIRGINIA,
supranote 65, at 252, 252.
I996]
COLONIAL LAND USE LAW
1277
"built decent houses upon ground so deserted" were authorized to
"take it upp for themselves" without hindrance from the prior owners.163 Later Virginia statutes required owners of certain town lots to
build houses on their lots or have the lots sold to new purchasers.'64
Connecticut gave owners of home lots "not yet built upon" in any
"Plantation or Town" twelve months to "build a house there fit for an
Inhabitant to dwell in, if his Lot be one Acre and half, unless the
Court upon knowledge of the case, finde cause to abate or give longer
time for building, upon the penalty of twenty shillings per year."'65
Rhode Island imposed a similar requirement, subject to a penalty of
forfeiting the land to the town.166 South Carolina imposed a schedule
of fines on landowners in a certain town who failed to build houses
within a certain time.167
Efforts to discourage underutilization of land have a long history in
the city of New York, founded by the Dutch as New Amsterdam. The
New Netherland government repeatedly tried to induce inhabitants of
New Amsterdam to erect more buildings and to develop their land in
accordance with official ambitions for the city. The problem, as one
ordinance explained, was that:
[M] any spaciousand large Lots, even in the best and most convenient
part of this City, lie and remainwithoutBuildingsand are kept by the
ownerseither for greaterprofit,or for pleasure,and othersare thereby
preventedto buildfor the promotionof populationand increaseof Trade
and consumption,as well as for the embellishmentof this City, where-
163 Id. A prior owner thus dispossessed was entitled to "have allotted him as much ground in
stead thereof as near the towne as conveniently may be." Id. Such land would probably have
been less valuable, because it was further away from the center of town.
164 See Act of Nov. 2, 1762, ch XXVII, para. IV, 7 LAWSOFVIRGINIA,
supra note I60, at 608,
6io; Act of Nov. 2, 1762, ch. XXIV, para. IV, 7 LAWSOF VIRGINIA,supra note i6o, at 602,
603-04. The proceeds of these sales would be given to the prior owners. These statutes were
necessary to render the owners "obliged to build on their lots." Act of Nov. 2, I762, ch. XXVII,
supra note i6o, at 608, 608. The original grants had not imposed
para. I, 7 LAWSOF VIRGINIA,
BEINGA SUPPLEMENT
TO HENthis obligation. See Act of I748, ch. 65, THE LAWSOF VIRGINIA
AT LARGE:1700-1750, at 410, 410-II (Waverly K. Winfree ed., Richmond,
ING'STHE STATUTES
The Virginia State Library I971).
165 Act Concerning Home Lotts of Oct. 1672, LAWS OF CON[N]ECTICUT, supra note 70, at 29,
29.
166 See Act of May 6, I640, para. i6, I RECORDS
OF THE COLONYOF RHODEISLANDAND
IN NEW ENGLAND102, 103 (John R. Bartlett ed., Providence, R.I.
PROVIDENCE
PLANTATIONS,
A. Crawford Greene and Brother I856). An example of its application is found on page 78 of the
source cited above. Cambridge, Massachusetts declared that if landowners did not improve their
OF CAMBRIDGE,
lots, the land would revert to the town. See Act of Jan. 5, I634, RECORDS
supra
note 144, at io.
167 See Act of Dec. ii, 1717, No. 382, para. IV, 3 THE STATUTES
AT LARGEOF SOUTHCAROLINA, supra note 74, at II, 14 (stating that the fines would apply retroactively as well as
prospectively).
HARVARDLAW REVIEW
I278
[Vol. 109:I252
unto many new comers would be encouraged in case they could procure
a Lot at a reasonable price on a suitable location ... .168
The city government employed various measures to achieve a higher
building density: first, forfeiture by lot owners who did not build by a
certain date;169 then, conveyance of unimproved lots to new purchasers, allowing the present owners "a reasonable indemnity at the discretion of the Street Surveyors";170and finally, imposition of a tax on
unimproved lots and fines against "obstinate"persons who refused to
comply.171
Using some of the same means, the English government continued
the effort to promote more intensive utilization of private land in New
York City. The common council noted that there were "Severall
parcells and Lotts of vacant ground, convenient to build on within this
Citty: and Severall persons being willing to build and Settle therein;
but cannot gett houses, or ground to build on (the Owners of the Said
grounds, refuseing to build or Sell)."172 There were also "Severall
houses ruinated and decayed: The Owners whereof being either absent, or unwilling to build or repaire the Same."'73 After a committee
surveyed and valued "all the vacant Land convenient or fitt to build
on: As alsoe all ruinated, decayed and untenentable houses . . . within
this Citty,"174the New York Common Council ordered that all such
property be sold "to any that will bee willing to pay the Purchase to
the right Owners according to the apprizement."'75 The prior owners
168 Ordinance of Jan. I5, I658, LAWSAND ORDINANCES
OF NEW NETHERLAND,
1638-1674,
supra note 58, at 325, 325.
169 See Ordinance of
July 25, I647,
1638-1674, supra note 58, at 74, 74.
LAWS AND ORDINANCES OF NEW NETHERLAND,
170 Ordinance of Dec. 15, 1648, LAWSAND ORDINANCES
OF NEW NETHERLAND,
1638-1674,
OF NEW
supra note 58, at Io5, 105; accord Ordinance of Jan. 15, I658, LAWSAND ORDINANCES
NETHERLAND,
1638-1674, supra note 58, at 325, 327. This provision was also extended to villages outside the city of New Amsterdam. See Ordinance of Aug. 24, I654, LAWSAND ORDINANCESOF NEW NETHERLAND,
1638-1674, supra note 58, at i80, 181.
171 See Ordinance of Jan. 15, I658, LAWS AND ORDINANCESOF NEW NETHERLAND,
1638-1674,
supra note 58, at 325.
172 Ordinance of Feb. 3, I675[-6], I MINUTES,CITY OF NEW YORK 1675-1776, supra note
I59, at 14, 14; see also ARTHURE. PETERSON& GEORGEW. EDWARDS,NEW YORKAS AN
EIGHTEENTH
CENTURYMUNICIPALITY
80 (I9I7) (discussing ordinances enacted by the common
council to facilitate growth).
173 Ordinance of Feb. 2, 1675[-6], I MINUTES,CITY OF NEW YORK 1675-1776, supra note
159, 14, I4.
174 Ordinance of Feb. i8, I675[-6], I MINUTES, CITY OF NEW YORK1675-1776,
supra note
I59, at I5, I5. Such surveys of private land were carried out later for the same purpose. See, e.g.,
Ordinance of Jan. 13, 1686, I MINUTES, CITYOF NEW YORK1675-1776, supra note 159, at 184,
I85.
175 Order of the Governor of
May 26, 1676, I MINUTES,CITY OF NEW YORK 1675-1776,
supra note 159, at 19, 19. This order was issued by the Governor, at the request of the mayor
and aldermen of the city. See I MINUTES, CITYOF NEW YORK1675-1776, supra note I59, at ii
(proposal of the mayor and aldermen); Ordinance of Feb. 3, I675[-6], I MINUTES,CITYOF NEW
YORK 1675-1776,
supra note I59, at 14, I4-15.
COLONIAL LAND USE LAW
I996]
I279
could retain their land only if they themselves built "Sufficient dwelling howses" on the land within a year.176 We can infer that this intervention did not overcome a market failure. Perhaps the recalcitrant
owners thought the land was worth more than anyone had offered to
pay; perhaps they preferred to wait for the land to appreciate further
in value - they were not monopolists. The point of this lawmaking
was to ensure that the land be used, "for the better populating & Inhabiting"'77 of the city and "for the generall good of this Citty."178
Landowners who failed to use their land in accordance with this community policy risked losing their land.
The province of West New Jersey provided a similar program of
incentives for the town of Burlington, premised on the legislative finding that:
[S] everalmerchants,tradesmenand others,have been and are desirous
to settle upon the said island,which might conduceto the great advantage, not only of the said island,but also to the said Province,and to
those who are or may be concerned therein; and . . . that such persons as
aforesaid,could not hithertobe accommodatedwith convenientlots of
land in the said island whereuponto build, by reasonwhereofthe said
island, city or town of Burlington,hath been and would be rendered
uselessand unprofitable,
eitherto the said Province,or othersconcerned
therein . .
79
Lands on the Island of Burlington that remained "unseated and unbuilt upon" for six months after this enactment could be sold by the
town commissioners to "such person or persons, as will purchase the
same, and build thereupon."180A later statute referred to "the negligence of the generality of those who are concerned in the lots of land
within the island of Burlington, in their building upon the same,"
which was a "great hindrance . . . in the promoting and encreasing the
town of Burlington, to the great detriment of the country, and those
interested therein."'18
176 Order of the Governor of May 26, 1676, I MINUTES, CITY OF NEW YORK 1675-1776,
supra note I59, at I9, I9. The same obligation to build a sufficient house within a year was
imposed on the new purchasers. See id.
177 Ordinanceof Feb. 3, 1675, I MINUTES, CITY OF NEW YORK1675-1776, supra note 159, at
I4, I4.
178 Ordinanceof Feb. 2, 1675, I MINUTES, CITY OF NEW YORK1675-1776, supranote 159, at
14, I4. In the I760s, the common council took action against two unenclosed vacant lots as
public nuisances. Act of Apr. 15, 1768, 7 MINUTES,CITY OF NEW YORK1675-1776, supra note
159, at o09, I o.
179 Act of May 8, 1682, ch. XX, GRANTS & CONCESSIONS OF NEW JERSEY, supra note 74, at
449, 450.
180 Id. The commissioners were further authorized to direct "what manner of building such
person or persons shall build thereupon, according to the lot or quantity of land such person or
persons shall purchase." Id. The purchase money was to be held by the legislature "for the use
of' the prior owners thus dispossessed. Id.
181 Act of Mar. 1683, ch. XV, GRANTS& CONCESSIONS
OF NEW JERSEY,supra note 74, at
463, 463.
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HARVARD LAW REVIE W
[Vol. I09:I252
4. Other Obligations of Urban Landowners. - Colonial governments often required owners of town lots to remove certain forms of
vegetation. North Carolina, for example, directed lot-owners in the
town of Salisbury to "grub, clear, Open, and inclose" their lots and
"keep the same clean and open,"182and enacted comparable provisions
for other towns.183 New York City ordered "that the poysonous and
Stincking Weeds . . . before Every ones doore be forth with pluckt
up," subject to a fine.184 Landowners in Charleston were required to
cut down "all young pine trees or pine bushes, and by the roots dig up
all other sorts of bushes, brushes, all weeds and under wood."185 A
New Hampshire town ordinance required that "every man shall fall
such trees as are in his lot being offensive to any other."'86 Pennsylvania required that plants be added: "every owner or inhabitant of
any and every house in Philadelphia, Newcastle and Chester" was to
plant and maintain "one or more . . . shady and wholesome
trees
before the door of his, her or their house and houses, not exceeding
eight feet from the front of the house . . . to the end that the said
towns may be well shaded from the violence of the sun in the heat of
summer and thereby be rendered more healthy."187A Virginia statute
required owners of marshlands in Alexandria to drain their land,
based in part on the legislative finding that the land's marshy condition caused "delay of the further settlement and growth" of the
182 Act of Dec. 5, 1770, ch. XVII, para. VIII, 23 THE STATERECORDS
OF NORTHCAROLINA,
supra note 70, at 8IO, 8ii.
183 See Act of I756, ch. XII,
para. XVI, 23 THE STATE RECORDSOF NORTH CAROLINA,supra
note 70, at 451, 455; Act of Aug. 2I, 1740, ch. I, para. XVI, 23 THE STATERECORDS
OF NORTH
CAROLINA,
supra note 70, at 136, I39. These requirements were added to the original requirement of building a house on each lot. See, e.g., Act of I723, ch. XIII, 25 THE STATE RECORDS
OF NORTH CAROLINA, supra note 70, at 205.
184 Ordinance of July 7, 1691, I MINUTES, CITY OF NEW YORK, 1675-1776,
supra note 159, at
229, 230.
185 Act of Aug. 28, I70I, No. 190,
para. VII, 7 THE STATUTES AT LARGE OF SOUTH CAROLINA, supra note o6, at I7, I8.
186 Ordinance of Dec. 6, I639, I PROVINCIAL
PAPERS:DOCUMENTS
ANDRECORDS
RELATING
TO THE PROVINCE
OF NEW-HAMPSHIRE
139 (Nathaniel Bouton ed., Concord, N.H., I867) ("And
if after due warning any shall refuse, [he shall be required] to pay half a crown for every tree that
is so offensive.") (applying to the town of Exeter).
187 Act of Nov. 27, I700, ch. LIII, sec. III, 2 THE STATUTES
AT LARGEOF PENNSYLVANIA
65,
66-67 (James T. Mitchell & Harry Flanders eds., Pa., Clarence M. Busch I896); see BOSSELMAN,
CALLIES & BANTA, supra note 2, at 84.
I28I
COLONIAL LAND USE LAW
I996]
town;188the penalty for noncompliance was forfeiture of the land.'89
This burden was retroactively imposed.190
II.
LANDOWNERS'
RIGHTS
AND PUBLIC
PREROGATIVES
IN THE
COLONIAL ERA
The foregoing statutes and ordinances provide valuable insights
into the colonial American conception of the respective rights of landowners and the community. The statutes and ordinances pursuing
broad public objectives are so numerous and varied, so widely distributed, that they cannot be viewed as anomalous.19l Rather, they indicate an understanding of private rights and public prerogatives on the
part of colonial lawmakers that flatly contradicts the supposed tradition of minimal land use regulation in early America. The first century and a half of private land ownership in America reveals no sign
of the later-imagined right of landowners to be let alone as long as
they do not harm others. In the minds of colonial legislators, the bundle of property rights received by patentees and passed on to their
successors did not include a right to use the land for everything short
of nuisance. Instead, the landowner's right to control and utilize land
remained subject to an obligation to further important community
objectives. Property ownership was "not an absolute right that exempted the individual owner from corporate oversight," but rather "a
right of stewardship that the public entrusted to an individual, for
both private and public benefit."'92
The objectives of governance regarded as legitimate were not limited to preventing tangible harms - the kind of physical injury to
other people or property associated with tort or nuisance doctrine.
Other, more subtle negative externalities that the law sought to avoid
188 Act of Feb. o0, 1772, ch. LII, para. III, 8 LAWSOF VIRGINIA, supra note I60, at 6I3, 614.
The statute also declared that the marsh caused "great prejudice [to] the health of the present
inhabitants." Id.
189 See id. A similar condition of forfeiture, originally imposed by an earlier statute, had been
specifically disclaimed by statute eight years before. See Act of Oct. 30, I764, ch. X, para. II, 8
LAWS OF VIRGINIA, supra note I60, at 49, 50.
190 See Act of Feb. io, 1772, ch. LII, para. III, 8 LAWS OF VIRGINIA, supra note I6o, at 613,
614-I5.
191 Some commentators have associated intrusive land use regulation with the social principles
of the early Puritan towns of New England. See, e.g., HASKINS,supra note 80, at 70-71;
Freyfogle, supra note 81, at 728. The present Article shows that land use regulation was even
more pervasive in early America. Land use was actively regulated in the eighteenth as well as in
the seventeenth century, in the middle and southern colonies as well as in New England, and in
the countryside as well as in the towns.
192 BARRYA. SHAIN,THE MYTH OF AMERICAN
THE PROTESTANT
ORIGINS
INDIVIDUALISM:
OF AMERICAN POLITICALTHOUGHT 183 (1994); see also Act of Nov. 15, 1636, XI PLYMOUTH
RECORDS, supra note 57, at 6, 18 ("[W]hereasland[s] are given [and] g[ranted] to p[er]sons upon
supposall of their living upon them for the maintenance [and] strength of society.").
I282
HARVARD LAW REVIE W
[Vol. 109:I252
included "unsightly and irregular"'93buildings and other structures,
and dwellings whose situation on their lots or construction was not
sufficiently "regular and orderly."'94 Some colonial lawmakers thought
that vegetation in towns was harmful.'95 Some thought that lack of
shade was harmful.l96 Excessive density of habitation in towns subdivision - was considered harmful, as was insufficiently dense
habitation.197 Some towns considered the purchase or hire of land
within a township by outsiders harmful.'98 Sometimes the regulation
was ostensibly to prevent harm to the landowners' own interests, as
when landowners were required to erect fences to protect their own
crops.199
Besides staving off harm from private land usage, colonial land use
law sought affirmative benefits - positive externalities. Landowners
did not even have a right to do nothing with their land: the community might call upon them to put their land to productive use or risk
losing it.200 Such requirements reflect a vivid sense on the part of leg-
islators that private land use decisions were interrelated; that greater
overall prosperity and efficiency would depend on synergy, on a critical mass of improving landowners; and that such goals would be frustrated by letting the public good depend upon the cumulative
decisions of unguided individual actors. This perception applied both
to urban land and to rural land. For a town bent on developing into a
commercial center, attracting new entrepreneurs and ensuring that
they could find land on which to build were important steps.201 For a
rural district bent on attracting the interest of commercial middlemen,
it was important that a critical mass of landowners grow crops.202
Landowners were sometimes required to let others hunt on their
land,203thus providing the positive externality of contributing to food
acquisition.
Even more remarkably, legislators sought to redirect property already in use to some other preferred use. Legislators sometimes acted
to optimize and coordinate private resources. They did so regarding
land thought to be suited for mills or ironworks,204land already being
193 Ordinance of July 25, 1647, LAWSAND ORDINANCES
OF NEW NETHERLAND,
1638-1674,
supra note 58, at 74, 74.
194 Act of Nov. 7, 1769, ch. LX, para. III, 8 LAWSOF VIRGINIA,
supra note I60, at 421, 422;
see also supra pp. 1275-76 (discussing similar measures).
195 See supra p. 1280.
196 See supra p. 1280.
197 See
supra p. I275.
198 See supra p. I274.
199 See supra p. 1264.
200 See
supra pp. 1260-63.
201 See
supra pp. I277-79.
202 See supra pp. I259-65.
203 See supra p. 1272.
204 See supra p. 1267.
1996]
COLONIAL LAND USE LAW
I283
used to grow hay but thought to be better suited for drainage and
cultivation,205or even land already being used by an individual owner
but thought to be better suited for joint management as part of a common field.206 Similarly, an owner of mining rights was sometimes encouraged to exploit his ore assiduously, regardless of profitability, by
the threat of dispossession.207 All of these legislative decisions overrode owners' calculations as to the most advantageous use of their
property.
It would be a distortion of the colonial record, however, to conclude that landowners were simply at the mercy of government decisionmakers. The examination of a comparable form of government
activity, eminent domain, is illuminating.208 Commentators have asserted that colonial legislators did not recognize a general obligation to
compensate landowners when land was taken for public use.209 If this
were so, aggressive government regulation of private land usage might
be readily understood as an analogous instance of disregard for the
effect of government action on landowners.210 But the practice of eminent domain in colonial America was not quite so piratical as this
view suggests. Private land was sometimes taken for public use without compensation, generally for highways.21 But throughout the colonies, when substantial parcels of land were taken for public facilities
-
courthouses,
prisons, churches, fortifications -
statutes normally
specified that the landowner would receive compensation equivalent in
value to the land taken.212 Compensation was also generally provided
when government took temporary possession of private property, as in
the compulsory lodging of troops.213 Some statutes provided for compensation of adjacent landowners for damage occasioned by activities
like dam-building.214 Thus the many public imperatives regulating
private land use in the colonies - often backed by punitive fines or
the threat of forfeiture - coexisted with provisions for compensating
205 See supra pp. I268-72.
206 See supra p. 1264-65.
207 See supra pp. 1265-66.
208 The Supreme Court has long viewed eminent domain and land use regulation as parts of a
single continuum under the Takings Clause. See, e.g., Lucas v. South Carolina Coastal Council,
505 U.S. 1003, 1028-3I (1992); Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 413 (1922).
209 See, e.g., MORTONJ. HORWITZ,
OF AMERICAN
THE TRANSFORMATION
LAW, 1780-1860, at
63-64 (I977).
210 Cf Lucas, 505 U.S. at 1028 n.x5 (discussing the physical appropriation of land without
compensation in the nineteenth century).
211 See John F. Hart, Takings and Compensation in Early America: The Colonial Highway
Acts in Social Context, AM. J. LEGALHIST. (forthcoming).
212 See James W. Ely, Jr., "That Due Satisfaction May Be Made": The Fifth Amendment and
the Origins of the Compensation Principle, 36 AM. J. LEGALHIST. I, 5 (1992).
213 See, e.g., Act of Dec. I, I756, ch. 103I, 4 THE COLONIALLAWS OF NEW YORK, supra note
6I, at I23.
214 See, e.g., Act of 1771, 5 LAWSOF NEW JERSEY,supra note 98, at I07, 109.
I284
HARVARD LAW REVIEW
[Vol. I09:I252
landowners when land was taken, used by the government, or damaged pursuant to government authorization. Aggressive regulation of
land use was not symptomatic of a generally licentious attitude toward
property rights; it simply reflected a line between private and public
rights drawn differently than has been imagined.
Moreover, it would be misleading to make a sharp distinction between legislators and landholders, and to present colonial land use law
as something inflicted on landowners by other groups in society.
Although land use laws burdened some landowners, they benefited
others. The distribution and regulation of land were contemporaneous,
both proceeding throughout the colonial era.215 Voting and officeholding qualifications based on property ownership ensured that the interests of landowners were well represented in legislative deliberations.216
Moreover, individuals who sat in the colonial assemblies were themselves generally active in patenting new lands and in acquiring the
lands of others, and many of them participated in administering the
land grant process.217 Conformity between principle and practice is
suggested, too, by the fact that much of the colonial period was
marked by prolonged crises regarding the legitimacy of other forms of
government action,218 yet land use continued to be variously regulated
in the public interest. Had contemporaries felt that colonial land use
laws were illegitimate, the conceptual resources for protesting them
were certainly at hand.
The formal texts that constituted legislative power in the colonies
provide additional evidence that colonial land use law comported with
contemporaneous principles of legitimacy. These sources of fundamental law in colonial America - the colonial charters, frames of government, town charters, and enabling acts - did not purport to constrain
the colonial assemblies' power to regulate land use,219 and they often
provided a broad warrant for regulatory supervision. The royal charter of Maryland, for example, granted extensive authority to the proprietor and assemblies:
[F] ree, full, and absolute Power ... to Ordain, Make, and Enact Laws,
of what Kind soever, according to their sound Discretions, whether relating to the Public State of the said Province, or the private Utility of
Individuals ....
So, nevertheless, that the Laws aforesaid be consonant
to Reason, and be not repugnant or contrary, but (so far as conveniently
215 See
HARRIS, supra note 53, at 4-20.
216 See id. at
442-43.
217 See Lois G.
CARR, RUSSEL R. MENARD & LORENA S. WALSH, ROBERT COLE'S WORLD:
AGRICULTUREAND SOCIETY IN EARLY MARYLAND 23-24 (I991); Hart, supra note 91, at I3-I4.
218 The colonists objected to "[u]nconstitutional
the invasion of
the weaken-
taxing,
placemen,
ing of the judiciary, plural officeholding, . . . [and] standing armies." BERNARD BAILYN, THE
IDEOLOGICALORIGINS OF THE AMERICAN REVOLUTION II7 (1967).
219 See
BOSSELMAN, CALLIES & BANTA, supra note 2, at 92-94; Treanor, supra note 2, at
788-89.
COLONIAL LAND USE LAW
996]
I285
may be) agreeableto the Laws,Statutes,Customsand Rightsof this Our
Kingdomof England.220
Town charters often granted regulatory power in similarly broad
terms, indicating the same sense of governmental power.221 A qualification sometimes added was the requirement that any town ordinance
that allowed the actual taking of private land be authorized by the
provincial assembly.222 The goal of maximizing autonomy for individual landowners, on the other hand, simply does not appear in these
texts.
The colony charters, we have seen, referred to English law as a
possible source of constraint on local legislation. But English law did
not supply any basis for challenging the power of colonial assemblies
to regulate private land use for the public good.223 Government in
England at this time not only restrained nuisance-like uses of land, but
also implemented policies serving broader objectives.224 Moreover,
had the common law of nuisance been intended as a tacit model for
land regulation in the English colonies, the Privy Council's review of
colonial legislation should have resulted in invalidation of most of the
legislation discussed in this Article. But the Privy Council found no
fault with the land use legislation described in the preceding section.225
Indeed, the Privy Council expressly directed the royal governors of
North and South Carolina to secure passage of local laws declaring
220 Maryland Charter of 1632, para. VII, reprinted in 3 THE FEDERALANDSTATECONSTITUTIONS, COLONIAL
CHARTERS,
AND OTHER
ORGANIC
LAWS OF THE STATES,
TERRITORIES,
AND
COLONIES NOW OR HERETOFORE FORMING THE UNITED STATES OF AMERICA 1677, 1679-80
(Francis N. Thorpe ed., 1909).
221 For example, the city charter of New York specifically authorized the mayor and aldermen
to:
[M]ake Laws, Orders Ordinances & Constitutions in writeing and to Add, Alter, Demenish
or reform them from time to time as to them Shall Seem Nessessary and Convenient (not
Repugnant to the Prerogative of his most Sacred Majesty ... or to any of ye Laws of ye
Kingdom of England or Other ye Laws of ye . . . Province of New Yorke) for ye Good
Rule Oversight, Correction & Govermt of ye Said Citty ....
New York City Charter of Apr. 27, I686, reprinted in I MINUTES,CITY OF NEW YORK
1675-1776, supra note 159, at 290, 297.
222 When the city wanted to condemn unused building sites or decayed buildings it obtained
an order from the governor. See Order of the Governor of May 26, 1676, I MINUTES,CITY OF
NEW YORK1675-1776, supra note I59, at 19. North Carolina authorized the town commissioners
of New Bern "to pass such necessary Rules and Orders as to them shall seem meet ... that may
tend to the Advantage and Improvement of the said Town, so as the same be not repugnant, but
as near as may be, agreeable to the Laws of England and this Province." Act of I756, ch. XII,
OF NORTHCAROLINA,
supra note 70, at 451, 455. Among
para. XVI, 23 THE STATERECORDS
the advantages mentioned by this Act were "removing all nuisances within the Bounds of the said
town." Id.
223 See BOSSELMAN, CALLIES & BANTA,supra note 2, at 75-81 (discussing the history of property rights in England).
224 See id. at 63-75.
225 See generally Elmer B. Russell, The Review of American Colonial Legislation by the King
in Council, 64 STUD. HIST. ECON. & PUB. L. 419, 570-79 (I915) (describing review accorded
colonial enactments by Board of Trade).
286
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[Vol. 109:I252
forfeiture of previously patented lands that were not taken up and cultivated within a reasonable time.226 Similarly, one New York act vacating certain large land grants for lack of cultivation227elicited the
strong approbation of the Privy Council. The Privy Council had originally recommended the vacating act to the Governor of New York;228
when a later Assembly repealed the vacating act, the Privy Council
voided the act of repeal and expressly approved the vacating act.229
Besides the colonial charters, English law, Privy Council review of
colonial legislation, and instructions to royal governors, where else
could a disgruntled colonial landowner have turned in arguing that a
land use law enacted by a representative assembly was illegitimate?
In hindsight, the natural rights doctrines of the imperial constitutional
crisis that resulted in American independence230might seem to apply
to this as well as other problems of government authority. Apparently,
this argument was not made in the context of land use regulation at
the time. The actual founding of the colonies and their settlements,
the beginnings of land title in the colonies, were too recent for anyone
to pretend that land rights in America had existed prior to
government.231
In principle and in practice, colonial land use law was very different from what legal scholars have supposed it to be. The main focus
of this Article is the colonial era as the setting for the late eighteenthcentury constitutions. But this history also invites reconsideration of
the place of property rights in the early nineteenth century, a topic
that has received abundant attention from legal historians. Several
points of contrast suggest themselves. Scholars have perceived the
early nineteenth century as a time of innovative change in the field of
property rights, change calculated to produce a "release of private energy" in the service of economic development.232 The evidence surveyed in this Article suggests that among legislatures, at least, the
adjustment of private property rights was similarly practiced, for similar ends, in seventeenth- and eighteenth-century America.233 To the
extent that colonial law anticipated nineteenth-century law in promot226 See 2 ROYALINSTRUCTIONS,
supra note 54, ? 8o0, at 564-65.
227 See Act of May i6, 1699, I THE COLONIALLAWS OF NEW YORK, supra note 6i, at 4I2;
supra note 64 and accompanying text.
228 See 2 ROYAL INSTRUCTIONS,supra note 54, ? 819, at 578.
229 See id. ? 820, at 579.
230 See LAURENCE
H. TRIBE,AMERICAN
CONSTITUTIONAL
LAW ? 8-I, at 560 & n.I (2d ed.
I988).
231 See supra note 27 and accompanying text (citing modern writers who assert that the right
to use property freely is prepolitical).
232 JAMESW. HURST,LAWAND THE CONDITIONS
OF FREEDOMIN THE NINETEENTH-CENTURYUNITED STATES10 (1956); see HORWITZ,supra note 209, at 63-70; Harry N. Scheiber,
Property Law, Expropriation and Resource Allocation by Government: The United States,
1789-1910, 33 J. ECON.HIST. 232, 237-48 (I973).
233 See supra pp. 1260-63, I265-72, 1276-79.
COLONIALLAND USE LAW
1996]
1287
ing economic activity by adjusting property rights, a reevaluation of
the role of the colonial legal system in economic development is in
order. The economic growth of the nineteenth century may owe less
to a change in property concepts than has been thought. Of particular
relevance to land use law, nineteenth-century courts' confinement of
compensation to cases in which the government's actions physically
invaded private land may not have been as much of a judicial innovation as it has seemed.234 Furthermore, the legislative transfer of rights
in private land from owners to entrepreneurs for essentially private
use, a process identified as a characteristic feature of nineteenth-century law,235 seems to be foreshadowed in colonial legislation.236 It is
also interesting to reexamine the nineteenth-century judicial doctrines
that recognized public rights to regulate private property.237 If we
consider the extensive colonial land use legislation surveyed here, these
later judicial doctrines seem less generous in their construction of a
legitimate sphere of public supervision of private property.238 Finally,
despite the legacy of colonial land use law, it seems clear that, by
some point in the nineteenth century, courts and scholars were convinced that land usage in America traditionally had been minimally
regulated.239American legal culture seemed to forget a considerable
portion of its own past at a time when that past should have been of
considerable interest.240 The process by which this happened merits
exploration.
III.
SIGNIFICANCEFOR MODERN TAKINGS DOCTRINE
The foregoing survey of land use regulation in colonial America
undercuts foundational premises of the courts' increasingly active scrutiny of land use regulation under the Takings Clause. This history has
profound consequences for the modern doctrine of regulatory takings,
both in principle and in the details of its application.
The Supreme Court has long tacitly acknowledged the constitutional relevance of colonial land use law, even if it has mistaken the
nature of that law. The colonial experience is an important part of the
supposed tradition of minimal land use regulation on which the Court
234 See HORWITZ, supra note 209, at 63-70.
235 See Harry N. Scheiber, The Road to Munn: Eminent Domain and the Concept of Public
Purpose in the State Courts, in LAW IN AMERICAN HISTORY 329, 332-76
(Donald
Fleming
&
Bernard Bailyn eds., I97I).
236 See supra pp. pp. I260-63, 1265-67; 1276-79.
237 See Harry N. Scheiber, Public Rights and the Rule of Law in American Legal History, 72
CAL. L. REV. 217, 221-26 (1984).
238 See supra pp. 1282-83.
239 See infra pp. 1287-89.
240 For an exploration of a more recent instance of forgetting in American legal culture, see
John F. Hart, Standing Doctrine in Antitrust Damage Suits, 189o0-975: Statutory Exegesis, Innovation, and the Influence of Doctrinal History, 59 TENN. L. REV. 191, 226-29, 249-54 (1992).
1288
HARVARD LAW REVIEW
[Vol. I 09:I252
began to rely over a century ago. Sometimes the Court has referred
simply to "common law" principles of land use regulation,24' but principles already conventional at the time of Independence necessarily
have roots in the colonial era. The harm-preventive concept of regulation was said to have already been established in America when "the
people of the United Colonies separated from Great Britain" and
formed the first "State constitutions, or other forms of social compact."242 Under this view, the "fundamental principle that every one
shall so use his own [property] as not to wrong and injure another"
embodied the regulatory power that "belonged to the States when the
Federal Constitution was adopted,"243which informed "the historical
compact recorded in the Takings Clause,"244and which the states intended to retain when they adopted the Fourteenth Amendment.245
The Fourteenth Amendment barred regulatory measures "which had
no warrant in the laws or practices of our ancestors."246The Court
thus at one time endorsed the premise, acted on by many state courts
in the late nineteenth and early twentieth centuries, that it was unconstitutional for government to prohibit uses of land that were not nuisances according to the common law.247
241 See, e.g., Lucas v. South Carolina Coastal Council,
505 U.S. 1003, I031 (I992); Village of
Euclid v. Ambler Realty Co., 272 U.S. 365, 387 (1926); Pumpelly v. Green Bay Co., 80 U.S. (I3
Wall.) I66, I77-78 (1872).
242 Munn v. Illinois, 94 U.S. 113, 124 (1877). In
separating from Great Britain, Americans
"changed the form, but not the substance, of their government." Id.
243 Mugler v. Kansas, 123 U.S. 623, 667 (1887)
(quoting Fertilizing Co. v. Hyde Park, 97 U.S.
659, 667 (I878)) (internal quotation marks omitted); cf. Siegel, Lochner Era Jurisprudence, supra
note 9, at 78-79 (discussing the invocation of common law principles in the Lochner era).
244 Lucas, 505 U.S. at 1028; see also Keystone Bituminous Coal Ass'n v. DeBenedictis, 480
U.S. 470, 492 (1987) (stating that "the Takings Clause did not transform"the principle that property "is held under the implied obligation that the owner's use of it shall not be injurious to the
community").
245 See Mugler, 123 U.S. at 664 ("It cannot be supposed that the States intended,
by adopting
that Amendment, to impose restraints upon the exercise of their powers for the protection of the
safety, health, or morals of the community.").
246 Id. at 668 (quoting Pumpelly v. Green Bay Co., 80 U.S. (13 Wall.) 166, 178 (1872)); see also
Munn, 94 U.S. at 125-26 (1877) (arguing for substantially the same interpretation of the Fourteenth Amendment). See generally Siegel, Lochner Era Jurisprudence, supra note 9, at 76-87
(discussing the common law foundations of Lochner era jurisprudence).
Given the Court's frequent invocation of a baseline of traditional land use regulation during
the late nineteenth century, the suggestion that regulatory precedents from before the Supreme
Court's incorporation of the Takings Clause into the Fourteenth Amendment are "entirely irrelevant" to the modern interpretation of the Takings Clause, Lucas, 505 U.S. at 1026, reflects a
remarkable change of direction.
247 See Lucas, 505 U.S. at I026
(stating that "'prevention of harmful use' was merely our early
formulation of the police power justification necessary to sustain (without compensation) any regulatory diminution in value"); see also THOMASM. COOLEY,A TREATISEON THE CONSTITUTIONALLIMITATIONS
WHICHREST UPONTHE LEGISLATIVE
POWEROF THE STATESOF THE
AMERICAN UNION 483 (4th ed., Boston, Little, Brown, and Co. 1878) ("The right of every man to
do what he will with his own, not interfering with the reciprocal right of others, is accepted
G. TIEDEMAN,
A TREATISEON THE LIMIamong the fundamentals of our law."); CHRISTOPHER
COLONIAL LAND USE LAW
I996]
I289
Sometimes, indeed, the Court traced the harm-prevention scope of
land use regulation back to the founding of civil society. The power
to make laws preventing landowners from making "a noxious use of
their property" was essential to "the existence and safety of organized
society."248 Similarly, the common law maxim "sic utere tuo ut
alienum non lcedas" was "the very essence of government,"249 as well
as a boundary on the police power.250 These references invoked a
Lockean social compact - a framework in which Americans have
often perceived not only a hypothetical starting position, but also the
actual beginnings of American society.251 The beginnings of American
society, contemporary with the earliest land titles, were similarly invoked by the assertion that "all property in this country is held under
the implied obligation that the owner's use of it shall not be injurious
to the community."252 The Court's recent takings opinions have again
referred to this supposed tradition of American land use regulation.253
A.
The Constitutional
Foundations
of Regulatory Takings Doctrine
The supposed American tradition of minimal land use regulation is
critical to reconciling the modern doctrine of regulatory takings with
TATIONS OF POLICE POWER IN THE UNITED STATES 426 (St. Louis, the F.H. Thomas Law Book
Co. I886) ("The legislative prohibition or regulation of the use and enjoyment of one's private
property in land is in violation of constitutional principles, which is not confined to the prevention of a nuisance."). Regarding the influence of Cooley and Tiedeman on constitutional doctrine,
see JAMES W. ELY, JR., THE GUARDIAN OF EVERY OTHER RIGHT: A CONSTITUTIONALHISTORY
OF PROPERTY
RIGHTS87-88 (1992). The constitutional thought of Cooley and Tiedeman is explored in Siegel, Historism, cited above in note 9, at I485-539.
248 Goldblatt v. Town of Hempstead, 369 U.S. 590,
593 (1963) (quoting Mugler, 123 U.S. at
669) (internal quotation marks omitted); see also Mugler, I23 U.S. at 664-65 ("No legislature
[could] bargain away the public health or the public morals .... Government is organized with a
view to their preservation ...." (quoting Stone v. Mississippi, ioi U.S. 814, 819 (I880)) (internal
quotation marks omitted)).
249 Munn, 94 U.S. at 124-25.
250
It is not difficult to find the rule which determines the limitations upon the lawful ways or
manner of using lands. It is the rule, which furnishes the solution of every problem in the
law of police power, and which is comprehended in the legal maxim, sic utere tuo, ut
alienum non lkdas.
TIEDEMAN,supra note 247, at 423 (first emphasis added); see id. at 426 ("The legislature cannot
prohibit a use of lands, which works no hurt or annoyance to the neighbors or adjoining property."); Siegel, Lochner Era Jurisprudence, supra note 9, at 79-83.
251 See generally SHAIN,supra note I92, at i86 (suggesting that Locke's understanding of personal liberty did not permit one to disregard "communal standards or the necessity of serving the
public").
252 Mugler, 123 U.S. at 665; see also id. (arguing that "all property" is "subject to regulations
for the protection of the public health, the public morals, and the public safety" (quoting New
Orleans Gas Co. v. Louisiana Light Co., 115 U.S. 650, 672 (I885))). Nuisance law is part of this
"pre-existing limitation" on the rights of ownership that a landowner "necessarily expects" when
acquiring land.
Lucas v. South Carolina Coastal Council, 505 U.S. I003,
253 See Lucas, 505 U.S. at I003-3I
480 U.S. 470, 491-92
I027-3I
(1992).
(1992); Keystone Bituminous Coal Ass'n v. DeBenedictis,
(1987); supra pp. I254-55.
I290
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[Vol. I09:I252
the Takings Clause.254 Application of the Takings Clause to regulations of land use must confront and explain the silence in the constitutional text. The Takings Clause refers only to taking property; as to
regulating property, it is silent.255 That silence does not present a fatal
objection to substantive review of land use regulations, however, if the
regulations under review are of a sort not found in America when the
Bill of Rights was adopted. On this point, the imagined tradition of
minimal land use regulation lends essential support to recent takings
doctrine.
If, in the experience of the Framers, regulation of land use conventionally extended only to nuisance, the Framers' failure to anticipate
and address broader forms of governmental intrusion on land ownership would be understandable. Extending the Takings Clause beyond
land use regulation that approximates seizure to land use regulation in
general would make a kind of rough common sense: if American governments have adopted a new magnitude of land use regulation since
the time of the Constitution, and if these novel regulations are comparable to eminent domain in economic impact, then it is appropriate to
extend the Takings Clause beyond eminent domain to these new forms
of regulation.256 This analysis explains why judicial review of nondis-
254
My argument presupposes that the word "taken"in the Fifth Amendment refers to taking
property, as distinct from regulating property. See Mugler, I23 U.S. at 668-69. This premise is
admittedly out of favor today; a leading study of the Takings Clause describes Justice Harlan's
argument in Mugler as "a formalistic quibble" and "artful definition." Sax, supra note 28, at 37,
39. On the limited role played by originalist interpretation in takings jurisprudence generally, see
Treanor, cited above in note 2, at 810-I2, 882.
255 My discussion assumes that current takings doctrine rests upon incorporation of the Takings Clause into the Fourteenth Amendment. See Webb's Fabulous Pharmacies, Inc. v. Beckwith,
449 U.S. I55, i6o (I980) (citing Chicago, B. & Q.R.R. v. Chicago, i66 U.S. 226, 239 (I897)); JOHN
LAW426 (4th ed. I991).
E. NOWAK& RONALDD. ROTUNDA,CONSTITUTIONAL
256 See EPSTEIN,supra note I, at 28 ("Categoricalreliance upon historical intention must also
confront the problem of novel institutions in changed social circumstances. The full range of
legislative programs was wholly unknown to the framers ... .."); Hearings, supra note 3 (statement of Roger J. Marzulla) ("The Founding Fathers' intent for private property to be protected
was clear. They could never have envisioned, however, the growth of a leviathan government
which has occurred in recent years.");see also Richard A. Epstein, History Lean: The Reconciliation of Private Property and Representative Government, 95 COLUM.L. REV. 591, 595-96 (i995)
(arguing that while Blackstone may not have foreseen taking by regulation, his views on protecting private property from government confiscation apply equally to regulation); Sax, supra note
28, at 40 (arguing that growth in the scope of government regulation since the late nineteenth
century has made the prior distinction between seizure and regulation obsolete). This evolutionary premise is also stated in Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 (I922), in which
Justice Holmes extended the Takings Clause to become a barrier against qualification of property
rights under the police power as well as against eminent domain, asserting that "the natural tendency of human nature is to extend the qualification more and more until at last private property
disappears." Id. at 415; cf Lucas, 505 U.S. at I028 n.I5 (asserting that the Takings Clause text
"can be read to encompass regulatory as well as physical deprivations").
I996]
COLONIAL LAND USE LAW
I29I
possessory land use regulation is substantially more stringent than judicial review of other forms of social and economic regulation.257
The point of the Court's recent invocation of the history of land
use regulation has been to distinguish nuisance abatement by pedigree
from other modern forms of land use regulation. Only regulations attacking "nuisance-like activity" enjoy a "special status" in takings
law,258 because only regulation of nuisance is thought to have been
conventional at the time the Constitution was adopted. This so-called
"nuisance exception" to the Takings Clause259explains why nuisanceavoiding regulation, but not other forms of land use regulation, may
justifiably prohibit "all economically beneficial use of land."260 The
conventional historical picture also justifies heightened judicial scrutiny of restrictions on landowner autonomy considered to lack such a
basis in tradition.261 A related aspect of the tradition perceived by the
Court - that the outer boundaries of nuisance were defined by courts
rather than by legislatures - is invoked to explain why expanded definitions of nuisance "cannot be newly legislated or decreed" by legislatures today.262
The historical records surveyed in this Article show that the colonial experience of land use regulation cannot fairly be confined within
the imagined boundary of nuisance control. The preferences of landowners were regularly subordinated to a vision of the public good that
embraced many objectives beyond protecting health and safety.263 In
regulating land use, the government sought benefits for the public, not
just avoidance of harm. The government often acted simply to encourage a publicly preferred use of private land - to rationalize or
optimize private land use. The power to regulate private land seems
to have been regarded simply as part of civil government's power to
legislate for the common welfare.
From the perspective of modern doctrine, the broadest significance
of colonial land use legislation lies in showing how often these regulations pursued purposes other than preventing nuisance. This evidence
257
See JohnA. Humbach,A UnifyingTheoryforthe Just-Compensation
Cases:Takings,Regu-
lation and Public Use, 34 RUTGERSL. REV. 243, 271-72 (1982).
258 KeystoneBituminousCoal Ass'n v. DeBenedictis,480 U.S. 470, 491 n.20 (I987).
259 ScottR. Ferguson,Note, TheEvolutionof the "NuisanceException"to the Just Compensa-
tion Clause: From Myth to Reality, 45 HASTINGSL.J. I539, 1540-4I (I994).
260 Lucas, 505 U.S. at 1029.
261 See id. at 1027-30. JusticeHolmesrecognizedthe independentweight of traditionin tak-
ings doctrine.Afterannouncingthe "generalrule .. . that... if regulationgoes too far it will be
recognizedas a taking,"he suggestedthat where the courtshad permitteddeparturesfrom this
rule,such departures"standas muchupontraditionas uponprinciple."PennsylvaniaCoal Co. v.
Mahon, 260 U.S. 393, 415-I6 (1922).
262 Lucas, 505 U.S. at 1029; see also Stevensv. City of CannonBeach, II4 S. Ct. 1332, 1334
("Nomoreby judicialdecreethan by legisla(I994) (Scalia,J., dissentingfromdenialof certiorari)
tive fiat may a State transformprivatepropertyinto publicpropertywithoutcompensation.").
263 See supra pp. 1281-83.
I292
HARVARD LAW REVIEW
[Vol. I09:I252
severely weakens the supposed historical basis for a double standard
regarding judicial review of land use regulation - for the "special status" of regulation attacking "nuisance-like activity."264 Because the
land use law with which the Framers of the Constitution were familiar
was not confined to nuisance, we cannot so readily explain away the
silence of the Takings Clause text on the subject of land use regulation, as courts and commentators have done.265 We therefore cannot
say that the Framers neglected to address land use regulation in the
Takings Clause because they did not foresee that government would
ever regulate land use for purposes other than nuisance prevention.
The argument from silence collapses in the face of this historical
evidence.
The Framers knew that land use regulation had served broad purposes in their time, and they evidently considered subjecting this
sphere of government action to substantive constitutional review to be
inappropriate. Colonial charters and frames of government had not
forbidden uncompensated regulation of land use; some had encouraged
it.266 The colonial assemblies had long regulated land use extensively
for a broad range of purposes.267 Land use regulation generally, not
just nuisance abatement, was part of a tradition that existed "when
the people of the United Colonies separated from Great Britain" and
formed the first "State constitutions, or other forms of social
compact."268
The evidence concerning the Framers' experience with land use
regulation suggests that the Takings Clause means what it says about
land use regulation: nothing. The reason the Framers did not address
land use regulation in the Takings Clause is that they did not regard it
as a taking. For today's courts, the implication of this history is that
the Takings Clause really has only a slight application to land use regulation. Instead of reading the Takings Clause to apply to all forms of
264
Keystone Bituminous Coal Ass'n v. DeBenedictis, 480 U.S. 470, 491 n.20 (1987); cf. Kmiec,
supra note 19, at 1639-40 ("[T]he neutral benchmark between harm and benefit supplied by common-law nuisance . . . defined private property for the founding generation by giving content to
the police power.").
265 See supra note 254.
266 See supra pp. 1284-85.
267 See supra
pp. 1281-83.
268 Munn v. Illinois, 94 U.S. 113, 124 (1877). In
separating from Great Britain, Americans
"changed the form, but not the substance, of their government." Id.; see also LAURENCEH.
TRIBE& MICHAELC. DORF,ON READINGTHE CONSTITUTION
70 (I991) ("The Takings Clause
. . .really does invite the reader to give special consideration to the Framers' views [regarding
property rights].").
The spurious common-law tradition of minimal land use regulation in America would seem to
be a creature of the nineteenth-century imagination. See JAMESKENT, 2 COMMENTARIES
ON
AMERICAN
LAW400-05 (8th ed., New York, William Kent 1854); see also Treanor, supra note 2,
at 798 (arguing that the Supreme Court disregarded the "clear history" of the Takings Clause
when it decided Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 (I922)).
COLONIAL LAND USE LAW
1996]
I293
land regulation except for those approximating nuisance abatement,
the courts should read the Clause narrowly, as courts did for most of
the nineteenth century.269 The Takings Clause ought not to apply to
any forms of land regulation that do not approximate eminent domain
by effectively depriving a landowner of possession.270 Other parts of
the Constitution are better suited for handling objections to particular
problems of land use regulation.27'
B.
Precedent for Moder Land Use Regulation
Besides generally undercutting the conventional rationale for reviewing land use regulation, the colonial experience offers instructive
parallels with specific areas of controversy in today's land use law.
Courts tend to view novel land use restrictions, those departing furthest from the common law of nuisance, with added suspicion; by doing so, they in effect gave Justice Holmes's "too far" standard a
historical dimension.272 The more innovative a government restriction
is, the more it may seem to violate a landowner's reasonable expectations concerning the likely scope of government regulations.273
For example, some critics claim that land use restrictions imposed
by modern environmental law interfere with the freedom of landowners to a novel degree.274 Those sympathetic to environmental restrictions have generally conceded this characterization, saying, for
instance, that environmental legislation pursues "values . . outside the
western legal tradition."275 As ethnography, this account accurately
describes how today's legal culture views the history of land use law,
based largely on reckless conjecture that has acquired an air of au269 See BOSSELMAN, CALLIES & BANTA, supra note 2, at 106-24; Stephen A. Siegel, Understanding the Nineteenth Century Contract Clause: The Role of the Property-Privilege Distinction
and "Takings"Clause Jurisprudence, 60 S. CAL. L. REV. I, 76 (1986).
270 See Humbach, supranote 257, at 272-73; cf. Jed Rubenfeld, Usings, I02 YALE L.J. 1077,
I12I (1993) (contending that compensation should be paid if the state effectively appropriates
property for a state-dictated use).
Today's relatively aggressive doctrine of regulatory takings is reminiscent of the substantive
due process doctrine of the early twentieth century. See NOWAK& ROTUNDA,supra note 255, at
426; Williams, supra note i6, at 429.
271 Allegations of spot zoning or racially discriminatory impact, for example, fall more naturally under the Equal Protection Clause than under the Takings Clause. Cf Treanor, supra note
2, at 874-78 (arguing that the Takings Clause should apply to nondispossessory regulations only
in cases involving discrete and insular minorities or disparate impact on individual owners).
272 Mahon, 260 U.S. at 415; see Lucas v. South Carolina Coastal Council, 505 U.S. I003,
1028-29 (1992); Kmiec, supra note 19, at 1635; cf. STEPHEN R MUNZER, A THEORY OF PROPERTY454 (I990) (stating that "justification may exist for giving priority to the historically first of
two conflicting uses" of land).
273 See Lucas, 505 U.S. at 1027-28.
274 See, e.g., Hearings, supra note 3 (statement of Jim Miller); id. (statement of Roger J.
Marzulla); id. (statement of Roger Pilon).
275 A. Dan Tarlock, City Versus Countryside: Environmental Equity in Context, 21 FORDHAM
URB. L.J. 461, 480 (I994).
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HARVARD LAW REVIEW
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thority. This view is characteristic of how constitutional scholars regard the colonial legal tradition. Our image of the legal past, in
general, revolves around judge-made law, especially the judicial review
of legislation. Scholars have largely ignored colonial statutes as part of
our legal heritage, because the statutes preceded the era of judicial
review.276 But many types of modern land use regulation are foreshadowed by colonial precedents, some parallel in purpose and others
parallel in effect. Courts might view the modern restrictions with less
suspicion if they were acquainted with the colonial experience.
Wetlands legislation furnishes a concrete example.277 Wetlands regulation by the government is considered to be highly novel.278 But the
colonial drainage acts provide a useful analogue. In hydrological
terms the purposes are opposite, but in terms of the use of government
power to constrain private landowners' preferences, a close parallel exists. Colonial legislatures required owners of wetlands to participate in
drainage projects, which disrupted current uses, and to contribute financially.279 Modern legislation prohibits owners of wetlands from
draining their land, thereby disrupting projected uses and reducing
possible financial gain.280 Unless we read into the Constitution some
kind of preference for dry over wet, for draining wetlands rather than
preserving them, it would seem that the extensive heritage of wetlands
regulation in early America is a good precedent for the modern laws
that prohibit drainage.
An overlapping and equally controversial category of modern laws
prohibits uses of land that threaten the habitats of endangered species.281 Such restrictions have much in common with requirements imposed on colonial landowners. Some colonial legislative precedents are
comparable in purpose, others comparable in effect. A comparable
purpose is found in laws that promoted the conservation of fish,282
276 One author has traced the origins of judicial review to I776. See CHARLESG. HAINES,
SUPREMACY
DOCTRINEOF JUDICIAL
THE AMERICAN
89 (2d ed. 1932).
277 See, e.g., Federal Water Pollution Control Act Amendments of 1972, ? 2, 33 U.S.C. ? I31
(I994). See generally United States v. Riverside Bayview Homes, Inc., 474 U.S. 121 passim (I985)
(construing wetlands protection legislation). For a summary of state wetlands legislation, see
OF LANDUSE ? 4.IO, at 4-65 to 4-7I (I994).
REGULATION
LINDAA. MALONE,ENVIRONMENTAL
278 See Hearings, supra note 3 (statement of Roger J. Marzulla).
279 See supra pp. 1268-72.
280 See, e.g., Just v. Marinette County, 201 N.W.2d 761, 765-66 (Wis. I972).
281 See, e.g., Endangered Species Act of I973, ? 9(aXI)(B), I6 U.S.C. ? I538(a)(I)(B) (I994)
(making it unlawful for any person to "take" an endangered species). This provision has been
held to prohibit the disruption of the habitats of endangered species. See id. ? 3(19), i6 U.S.C.
? I532(I9) (I994); 50 C.F.R. ? 17.3 (I994); Babbitt v. Sweet Home Chapter of Communities for a
Great Or., II5 S. Ct. 2407, 2412 (I995). For criticism of this legislation on the basis of its novelty,
see the statements of Roger J. Marzulla and Roger Pilon in Hearings, cited above in note 3.
282 See, e.g., Act of June 15, 1768, No. 4, 6i ARCHIVES
OF MARYLAND
425 (J. Hall Pleasants
PUBLICAND PRIVATE,OF
ed., 1944); Act of Jan. 16, I736, ch. 21, 2 THE ACTSAND RESOLVES,
THE PROVINCE
OF THE MASSACHUSETTS
BAY 786 (Boston, Wright & Potter I874) [hereinafter 2
I996]
COLONIAL LAND USE LAW
I295
deer,283and wild fowl284 by imposing constraints that applied to private property. The modern requirement that certain natural habitats
be preserved, effectively forcing landowners to allow certain kinds of
plants to grow undisturbed, is parallel in effect with colonial laws that
required farmers to grow certain crops,285 required farmers not to
grow certain crops (or limited the amount),286required landowners to
eradicate certain plants from their land,287or required them to grow
shade trees.288 Such modern requirements are also comparable to the
many laws that penalized landowners who left their land unused, in
terms of the degree of constraint over private preferences.289
A legislature's purpose in overriding landowners' preferences regarding what grows on their land is to secure a material benefit for
some larger community. In the colonial era, the material benefit
sought was generally economic, such as promoting agricultural diversification or protecting some element of the food supply.290 Today, the
material benefit sought is continued access to various fruits of nature:
present benefits from elements of an interrelated ecological system,
and potential future medical and scientific benefits from a broader,
more diverse gene pool.291 Colonial legislators might have doubted the
wisdom of prohibiting construction of a dam in order to preserve snail
darters292- there is little nutritional value in a snail darter - but
they often prohibited construction of dams that would prevent the pasLAWS
OF MASSACHUSETTS
ACTS& RESOLVES
BAY];Act of Feb. i6, I771, ch. I489, 5 COLONIAL
OF NEW YORK,supra note 6i, at 211.
283 See Act of Dec. io, 1698, ch. XXI, I ACTS& RESOLVES
OF MASSACHUSETTS
BAY, supra
OF MASSACHUSETTS
note 102, at 355; Act of June I6, I754, ch. 7, 3 ACTS & RESOLVES
BAY,
LAWSOF NEW YORK,
supra note 135, at 756; Act of May 20, 1769, ch. I396, 4 THE COLONIAL
LAWSOF NEW YORK,
supra note 6I, at 1o05; Act of Dec. Ii, 1762, ch. I208, 4 THE COLONIAL
OF NORTHCAROLINA,
supra
supra note 6i, at 688; Act of 1738, ch. X, 23 THE STATERECORDS
note 70, at 128; Act of Aug. 26, 1721, ch. 246, 3 THE STATUTESAT LARGEOF PENNSYLVANIA
FROM1682 TO 1801, at 254, 254-55 (James T. Mitchell & Henry Flanders eds., Harrisburg, Pa.,
Clarence M. Busch I896).
284 See, e.g., Act of Aug. 29, 1727, ch. 17, 2 ACTS& RESOLVES
OF MASSACHUSETTS
BAY, supra
LAWSOF NEW YORK,supra
note 282, at 437; Act of Mar. 24, 1772, ch. 1558, 5 THE COLONIAL
note 6i, at 399.
285 See BOSSELMAN, CALLIES & BANTA, supra note 2, at 82-83.
286 See id. at 83.
287 See supra pp. 1273, 1280.
288 See supra p. I280.
289 See supra pp. 1260-63.
290 See supra pp. I273, 1295.
291 See 141 CONG.REC. H2465 (daily ed. Mar. I, 1995) (statement of Rep. Gilchrest). Some
participants in the land use debate have exhorted the courts and the public to respect nature for
D. STONE,SHOULDTREESHAVE
its own sake rather than as property. See, e.g., CHRISTOPHER
STANDING?
9 (I974). Plainly, however, the purpose of habitat protection laws is to secure a benefit for people, not to confer a benefit on wildlife.
292 See Tennessee Valley Auth. v. Hill, 437 U.S. 153, 172-73 (I978) (prohibiting construction of
a dam in order to protect snail darters).
I296
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[Vol. I09:I252
sage of larger fish.293 They would not have disputed the legislature's
power to prohibit building a dam without paying compensation to the
affected landowner.
Regulating land use to promote aesthetic objectives - through
government review of building designs, historic preservation, and open
space requirements - is highly controversial in America today. Such
objectives are considered to be far removed from the harm-prevention
function of nuisance law.294 Some scholars regard aesthetic land use
regulation as an innovation of this century.295 Yet colonial legislatures
sometimes regulated land use for expressly aesthetic purposes. Colonial laws authorized city officials to ensure that new buildings met criteria of order, uniformity, or gracefulness in their design and
placement,296or required that buildings be maintained "in a comely
way."297 Similarly, Virginia enforced a crude kind of architectural
preservation by prohibiting landowners from burning any habitable
buildings on their land.298 These laws call to mind Justice Douglas's
famous declaration:
The concept of the public welfare is broad and inclusive. The values it
representsare spiritual as well as physical, aesthetic as well as monetary.
It is within the power of the legislature to determine that the community
should be beautiful as well as healthy, spacious as well as clean, wellbalanced as well as carefully patrolled.299
This vision of the police power as a basis for zoning regulations has
been attacked,300but it has solid (if long forgotten) roots in colonial
history.
Another relatively controversial function of land use regulation is
to prefer one economic activity over another. In Miller v. Schoene,301
for example, the Supreme Court upheld a statute permitting destruc293 See Act of June 15, I768, No. 4,. 6 ARCHIVES
OF MARYLAND,
supra note 282, at 425; Act
OF MASSACHUSETTS
of Jan. i6, 1736, ch. 21, 2 ACTS& RESOLVES
BAY, supra note 282, at 786;
Act of Mar. 9, 1771, ch. 623, 8 STATUTES AT LARGE OF PENNSYLVANIA 22, 23-24 (James T.
Mitchell & Henry Flanders eds., Harrisburg, Pa., Wm. Stanley Ray 1902); Act of Feb. Io, 1772,
ch. XXXIV, 8 LAWSOF VIRGINIA,
supra note I60, at 583; Gary Kulik, Dams, Fish, and Farmers:
IN THE
Defense of Public Rights in Eighteenth-Century Rhode Island, in THE COUNTRYSIDE
AGE OF CAPITALIST
TRANSFORMATION
25, 30-31 (Steven Hahn & Jonathan Prude eds., 1985).
294 Accordingly, modern courts have long resisted recognizing aesthetic objectives as a valid
AMERICAN
LAWOF ZONING716-42
basis for land use regulation. See ROBERTM. ANDERSON,
(3d ed. 1986 & Supp. 1994).
295 See, e.g., JOHN J. COSTONIS, ICONS AND ALIENS: LAW, AESTHETICS, AND ENVIRONMENTAL CHANGE 36 (1989).
296 See supra pp. 1275-76.
297 Act
Concerning Home Lotts of Oct. I672, THE LAWS OF CON[N]ECTICUT, supra note 70, at
29, 29.
298 See supra note 69 and accompanying text. In early Virginia, landowners destroyed buildings to recover nails, just as landowners today destroy buildings to recover building sites.
299 Berman v. Parker, 348 U.S. 26, 33 (1954) (citation omitted).
300 See, e.g., SIEGAN, supra note 26, at 206-07.
301 276 U.S. 272
(I928).
COLONIAL LAND USE LAW
1996]
I297
tion of cedar trees (without compensation) in order to protect nearby
apple trees. As we have seen, colonial assemblies often gave preference to certain economic uses over others: capital-intensive agriculture
in drained meadows over less active forms, iron-works and mills over
other uses, wheat fields over barberry bushes, and the like.302 One
economic activity that the colonial legislatures particularly
subordinated to other activities was holding land inactive for speculation.303 Indeed, holding land inactive was often punished with heavy
fines, and sometimes with forfeiture.304 This class of colonial legislation can be seen as precedent for modern regulatory laws that do the
reverse - take away the speculative premium hoped for by landowners by requiring them to maintain land in its natural state.305 More
generally, the history of colonial land use legislation strongly supports
the Court's controversial conclusion that a state's eminent domain
power is essentially as broad as its police power, so that the Takings
Clause imposes no real "public use" limitation on state legislation.306
C. The Institutional Sources of Nuisance Law
Finally, to the extent that courts reviewing land use controls continue to employ the concept of nuisance as an important baseline of
legitimacy,307the colonial record helps clarify the conventional sources
of nuisance law in early America. The Supreme Court has suggested
that only land use regulation comporting with judicially constructed
nuisance doctrine is entitled to deference, and that expansion of the
nuisance concept "cannot be newly legislated or decreed" by modern
legislatures.308 This insistence, also found in late nineteenth-century
constitutional doctrine,309rests on the historical premise that American
302 See
supra pp. 1266-72,
303 See
supra pp. 1259-63,
304 See
I259-62,
supra pp.
1273.
1276-79.
I276-78.
305 See supra pp. I294-96.
306 Hawaii Hous. Auth. v. Midkiff, 467 U.S. 229, 240 (I984).
307
See supra pp. I254-55.
308 Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1029 (1992); see Kmiec, supra note
19, at 1640. Even judicially-created doctrine may not qualify. Justice Scalia has warned of state
courts "invoking nonexistent rules of state substantive law" in this context, and of courts "creating
the doctrine rather than describing it." Stevens v. City of Cannon Beach, 114 S. Ct. 1332, I334,
1335 n.4 (I994) (Scalia, J., dissenting).
309 See Munn v. Illinois, 94 U.S. 113, 134 (1877) ("[W]hat is reasonable must be ascertained
judicially.").
The legislature ... cannot prohibit as a nuisance an act which inflicts no injury upon the
health or property of others. If the harmful or innocent character of the prohibited use of
lands furnishes the test for determining the constitutionality of the legislative prohibition, it
is clearly a judicial question, and is certainly not within the legislative discretion, whether
the prohibited act or acts work an injury to others.
TIEDEMAN, supra note 247, at 426-27.
I298
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[Vol. 109:1252
nuisance law traditionally was defined by judicial common law and
not by statute or ordinance.310
This premise is wrong. Throughout the colonial period, lawmakers
regularly used statutes311 and ordinances312 to define nuisances and
prohibit certain uses of land in certain areas. In that era, legislation
was a principal source of nuisance law, perhaps the predominant
source. This rulemaking allowed flexible responses to changed circumstances and public needs. Trades already located within a city could
be prohibited by statute or ordinance once circumstances changed.313
This legislative definition and redefinition of nuisance is understandable, because nuisance principles have traditionally turned on
evolving determinations of what is unreasonably harmful in a particular context.314 Moreover, such formal rulemaking is desirable because
it gives better notice to landowners than do judge-made rules. Colonial nuisance legislation was part of an extensive body of law that
required and prohibited various activities on private land. Taking into
account the changes in both the landscape itself and in our under-
310 See Lucas, 505 U.S. at I029-3I.
311 See Act of Oct. 25, 1692, ch. 13, I ACTS & RESOLVESOF MASSACHUSETTSBAY, supra note
102, at 42; Act of Oct. 25, 1692[-3], ch. 23, i ACTS & RESOLVESOF MASSACHUSETTSBAY, supra
note 102, at 59; Act of June 20, I7Io[-I], ch. 8, I ACTS & RESOLVES OF MASSACHUSETTSBAY,
supra note I02, at 656; Act of Apr. o1, I74I, ch. 2I, 2 ACTS & RESOLVES OF THE MASSACHUSETTSBAY, supra note 282, at IO54; Act of May 4, 1754, ch. 956, 3 THE COLONIAL LAWS OF
NEW YORK, supra note 6i, at 996; Act of Dec. 31, 1761, ch. 1163, 4 THE COLONIAL LAWS OF
NEW YORK,supra note 61, at 57I; Act of Feb. 6, 1730-31, ch. CCCXXII, 4 THE STATUTES AT
LARGE OF PENNSYLVANIA215 (James T. Mitchell & Henry Flanders eds., Pa., Clarence M. Busch
6 THE STATUTES AT LARGE OF PENNSYLVANIA,
1897); Act of Mar. 4, 1763, ch. CCCCLXXXIV,
supra note o15, at 230; Act of Mar. 4, I773, ch. VI, para. V, 8 LAWSOF VIRGINIA, supra note x60,
AT LARGE
at 655, 657; Act of Aug. 28, 1701, No. 190, paras. VII, IX, X, XIX, 7 THE STATUTES
OF SOUTHCAROLINA,supra note Io6, at 17, I8-I9, 2I.
312 See Boston Town Records of 1757, chs. I, 4, 14 A REPORTOF THE RECORDCOMMISSIONERS OF THE CITY OF BOSTON3IO-I2, 315-316 (William H. Whitmore & William S. Appleton
eds., Boston, Rockwell & Churchill 1885); Ordinance of Nov. I8, 1731, 4 MINUTES,CITYOF NEW
YORK1675-1776, supra note 159, at IIo (prohibiting slaughterhouses in certain districts); Ordinance of May 3, 1744, 5 MINUTES,CITY OF NEW YORK 1675-1776, supra note 159, at ii8;
TOWNBOOK,1743-1778, supra note 149, at 176,
Ordinance of Feb. 8, 1768, THE WILMINGTON
I77-78 (imposing a penalty for fires visible from top of chimney); Ordinance of Jan. 25, 1772,
THE WILMINGTON
TOWNBOOK,1743-1778, supra note I49, at I97, 197 (prohibiting fires after
sunset on any "Lots in this Town").
Legislatures sometimes directed local authorities to enact ordinances to eliminate nuisances.
OF NORTHCAROLINA,
See, e.g., Act of 1756, ch. XII, para. XVI, 23 THE STATERECORDS
supra
note 70, at 451, 455 (directing town commissioners "to pass such necessary Rules and Orders as to
them shall seem meet, for removing all nuisances within the Bounds of the said Town").
313 See, e.g., Act of June 20, 17Io, ch. VIII, I ACTS & RESOLVES
OF MASSACHUSETTS
BAY,
supra note 102, at 656; Ordinance of May 3, 1744, 5 MINUTES,CITYOF NEW YORK,1675-1776,
supra note 159, at ii8.
314 See Lucas, 505 U.S. at 1054-55 (Blackmun, J., dissenting); Carol M. Rose, Property Rights,
Regulatory Regimes and the New TakingsJurisprudence - An Evolutionary Approach, 57 TENN.
L. REV. 577, 586 (I990); Sax, supra note 28, at 49.
1996]
COLONIALLAND USE LAW
I299
standing of the wider impact of private land usage,315this body of law
furnishes meaningful precursors for modern land use legislation.
IV.
CONCLUSION
For over a century the Supreme Court has referred to a premodern
tradition of land use regulation, paralleling the common law of nuisance, in which government regulated only injurious uses of land.
This supposed tradition is foundational in the constitutional law of
land use regulation: it is the bridge between a Takings Clause that
says nothing about regulation and an increasingly aggressive takings
doctrine constructed by the courts.316 This historical image is obscured today only because courts have erected so much of the doctrine
of regulatory takings on top of it. Here, as elsewhere, tradition is more
important in American law than formal doctrine acknowledges. Tradition, however, can be fiction. The historical past is easily falsified for
legal purposes because the only constraint on falsification is an intuitive sense of what is historically plausible.317
The tradition that courts have relied on for over a century - the
view that American governments traditionally regulated land use minimally, and that regulation ventured little beyond nuisance law in
scope - is false. This Article takes a preliminary step toward replacing it. Our institutional past is not, of course, a compulsory model for
the future. American legislatures of the late twentieth century are not
obliged to make use of powers exercised by their colonial predecessors.
But neither should courts casually deny today's legislatures such powers. Historical inquiry can liberate the present when it displaces a
false tradition used to invalidate solutions chosen by modern
legislatures.
Courts have thought that the supposed tradition of minimal land
use regulation provides support for the restrictive features of today's
doctrine. Once we discover that the history was otherwise, the judiciary ought to assume a more deferential role in reviewing land use regulation. Regulation of private land usage to promote broad public
welfare objectives, not merely to prevent harm, was among the "laws
[and] practices of our ancestors."318Exercise of this regulatory power
was conventional "[w]hen the people of the United Colonies separated
from Great Britain" and formed the first "State constitutions, or other
315 See Freyfogle, supra note 8i, at 737-39.
316 See supra pp. 1289-9I; see also Rose, supra note 314, at 590 (stating that the Court's recent
decisions determine the validity of land use regulation in essentially the same way that nineteenth-century courts determined the reasonableness of land use under nuisance doctrine).
317 See ALAN WATSON, FAILURES OF THE LEGAL IMAGINATION98 (1988).
318 Pumpelly v. Green Bay Co., 80 U.S. 166, 178 (1872).
1300
HARVARD LAW REVIEW
[Vol. 109:1252
forms of social compact."319Given the utter lack of evidence that the
Takings Clause was originally intended to apply to land use regulation,320 it stands to reason that the Bill of Rights "did not transform"321 this conventional regulatory power. Once the colonial
heritage of land use law is recognized as part of the American legal
and constitutional tradition, modern land use law should rest on a
much firmer footing.
319
Munn v. Illinois, 94 U.S. II3, 124 (1877). In separating from Great Britain, Americans
"changed the form, but not the substance, of their government." Id.
320 See supra p. 1253.
321 Keystone Bituminous Coal Ass'n v. DeBenedictis, 480 U.S. 470, 492 (1987).