In Conservation Easements, the Good, the Bad and the Greedy, real estate expert Charles B. Warren, A.S.A. writes on three dimensions in the process of sorting out the good from the bad and the greedy.
Now let us consider rights in property. Generally the “whole property” includes all private rights; the right to transfer, to borrow against, to inherit, to rent, to mine, to plant, or to build upon for example. Public rights include police power, to regulate private activity using land, taxation, condemnation for public use (or purpose?), and escheat. There is a continual change in the actual boundaries of the private and public rights. At one point, conveying mineral rights in a property allowed the owner of those rights to mine in a manner that ultimately caused the surface of the ground to collapse. Generally police power now prohibits that, tipping the scale from the owner of the underlying mineral rights to that of the surface. A century ago urban development was left to private contract, CC&Rs, rather than public planning. In Houston it still is. At Lake Tahoe there was a dramatic shift in the late 1970’s where land which had previously been planned, zoned, developed, and sold to the public for construction of detached homes was declared to be unsuitable for that purpose. This was an expression of what was termed “The Police Power Revolution”. The affected Tahoe landowners recently lost on part of their claim for compensation. Last year (Kelo) the U.S. Supreme Court validated government use of eminent domain to transfer property from one private owner to another. But while the government has moved the boundary of rights in its favor in some cases, Oregon recently passed a law requiring compensation to property owners if land is “downzoned”, limiting its development. And in Kelo the Supreme Court noted that states could restrict eminent domain to public use, rather than public purpose, and many have or are in the process of doing so.
