Virtual Parceling

Abstract

Although economists have long suggested that the privatization of land is one to solution to the tragedy of the commons, we observe that drawing a parcel boundary in fact often creates commons and anticommons for concurrent (spatially overlapping) natural resources. The property law doctrine of the severed estate allows land to be un-bundled from concurrent resources, allowing one person to own the land and another to control the air space. This un-bundling of land and resource rights largely mitigates the coordination failures that might otherwise result from boundary-drawing. It results in overlapping, parallel systems of ownership of land and resources in physical space. Property law focuses largely on land parcels, but there also exist overlapping system of parcels to values including water, air, wildlife. We term these resource boundaries unbundled from land “virtual parcels.” Virtual parceling embeds flexibility into landscape governance, allowing a balance between resources and resource users through the allocation of property rights and subsequent limitations or expansion of those rights over time. We outline an array of public and private governance tools that function to re-draw boundaries around resources that require scales of ownership or governance that do not accord to underlying land rights. These include: statutes, public lands, public trust doctrine, custom, and contract. These tools are the joints and ligaments in the body of property—allowing the flexibility to rescale boundaries as natural and market conditions change. Any single landscape requires several of these tools to operate concurrently, an observation that calls into question the frequent dichotomization of “public” and “private” property or “state” or “federal” control of lands. In practice, the many overlapping resources on a landscape require varied ownership and governance structures. Virtual parcels provide a new way to view property law. It reveals that virtually all landscapes contain both public and private elements, subject in varying ways to local, state, federal, and tribal controls.

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