There have been all manner of land disputes over the course of human history, but one type of conflict that seems to surface time and again is a situation in which nonowners are suddenly barred from land that they have always had free access to.
Just think of the English enclosures (roughly 1450 to 1860), in which manorial landowners fenced in lands that were legally theirs but which before had been governed by the rules of the open-field system, in which peasants all planted on individual slivers of a field in the springtime but grazed their cattle over the whole field in common after harvesttime. The enclosures barred peasants from using lands that they didn’t own but that they had always been able to use freely in this way. This of course created tension and displaced the population. The government sided with the nobles and enforced the enclosures with its monopoly of justice.
In this type of scenario, the conflict arises because landowners are asserting absolute rights over their property, even though the nonowners have long-established easements, nonpossessory property rights that limit what landowners can rightfully do with their land. These conflicts are often not resolved fairly because governments have almost entirely usurped the power to mediate disputes (and thus to maintain law and order), which allows them to obstruct justice whenever this benefits the state and the ruling classes. In these land disputes, governments tend to acknowledge very limited easements, if any (a common one in the United States is the legal right to cross through someone else’s land to come and go to your own property), and they tend to back the politically powerful large landowners, strengthening their rights by effacing those of others. If the parties to these land disputes had the power to settle them themselves, property rights would have a better chance of being upheld.
Marjorie Kinnan Rawlings, a Northerner who lived and died among the Florida crackers, depicted this same issue of landowners’ violation of easements in a very different time and place, as it afflicted residents of the Florida Big Scrub in the early twentieth century. Her literature on land disputes is instructive to libertarians because it illustrates how these conflicts could be resolved under a minimally intrusive government or in a natural order free of the state.
In Rawlings’s book South Moon Under (published in 1933), the local people are alarmed when an unnamed Alabama man moves into the area and fences in two square miles of the scrub, nearly killing everyone’s cattle by cutting them off from the river during a dry spell. The local men call a meeting and decide to try to “fix things civilized.” The men visit the newcomer’s home unarmed and try to discuss the issue with him. The man maintains that he has the right to fence the land he’s paid for. The locals disagree:
Don’t matter what you’ve paid for, Mister. All of us has homestidded or paid for our land, and we never had nary cattle fence amongst us. We fences our yards and the fields we’re croppin’ and sich as that. But now stock has always been free to come and go in these parts, both sides o’ the river. Your stock is welcome to go acrost my land and the land of all these here men. But, Mister, we aim for our stock to go acrost yours.
The Alabaman refused to acknowledge the Florida crackers’ cattle-grazing easement, putting the men in the unpleasant position of having to defend their property rights: “Mister, we’re here peaceable, but if you aim to act that-a-way, you’ll jest natchelly find your fences cut.” The Alabaman aggressively dismissed the men. When they asked if he wanted trouble, he said yes, so they warned him to leave town, driving a nail into a nearby tree trunk to mark how much time the man had to abandon the property: “When that ten-penny nail is done drove in that oak-tree plumb to the head—you be gone from here.” In the end, the Alabaman flees before there is any bloodshed. The nail kept sinking despite his armed vigils, and he knew the crackers were serious.
Critics might view this as a story of barbaric vigilante justice, but the fact is that a right that can’t be defended doesn’t exist. The newcomer was an unreasonable man who refused even to have a discussion with the locals. He was violating the property rights of all those around him and threatening their livelihoods. By refusing to let the cattle pass through to the river, the Alabaman was destroying the order established by natural law, by private property rights. The crackers were simply defending their easements from a bully who wanted to superimpose an absolute title to the land over the existing easements. The government may have given the Alabaman the legal right to fence in the land and violate the locals’ property rights, but the state was in the wrong. Luckily, the locals were able to reassert natural law without retaliation from the state.
Rawlings treats this land issue again in the short story “The Enemy,” published in 1940 as part of the bookWhen the Whippoorwill. In the story, a rich Yankee, Dixon, buys four thousand acres and fences them in for his own massive herd of cattle. Once again, the fencing blocks neighboring families’ cattle from drinking at the river. An influential local patriarch, Milford, leads the charge against Dixon, whom he confronts as the cattle are being unloaded at the train station: “You cain’t do this to honest men just because they’re poor! We’ve ranged our stock in these woods since before your ma changed your didies. You cain’t take a pocketful of dirty Yankee money and run our cattle outen our own woods!”
Dixon ignores Milford, who begins to bombard him with letters reading “Get your cattle out of here or we will cut your fences. Signed, a Cattleman, speaking for All.” These letters are also ignored, so finally, in the heat of a drought, Milford cuts the fences. Twenty of Milford’s cattle drown in their haste to drink, so he kills twenty of Dixon’s cattle too, “just to start things off even.” As Milford is leaving, Dixon’s cattlemen threaten to shoot anyone who enters the property for trespassing.
In this pivotal moment, Milford turns to his neighbors for support. They are appalled by his actions, and they don’t back him even though they agree that there’s a problem. One says,
Dixon had the right to buy that land and the right to put his cattle on it. If it’s got us blocked from water, it’s a accident, just like the drought is a accident. We got to do somethin’ and do it quick. But I sure as hell ain’t goin’ to cut no lawful owner’s fences nor kill no lawful owner’s cattle.
The other men sensed that Milford had been hotheaded and had not followed due process in defending the easements. Worse, he crossed the line from retributive justice into crime when he killed Dixon’s cattle.
In the end, Milford’s son, Tom, resolves the issue by talking to Dixon, who generously agrees not to sue Milford for property damage in the interest of keeping the peace. Tom explains that a simple misunderstanding was the root of the dispute:
Dixon didn’t have no idee we was blocked from water. He said if ary one had of come to him right off, nothin’ need of happened. . . . He aims to sell us cattle people the south thousand of that land, at what he paid for it, and buy hisself another thousand to the north.
So, in this case, the dispute was ultimately resolved peacefully, via a land transaction that granted the locals absolute property rights (except vis-à-vis the state, of course) over the land near the river. Milford was censured for creating trouble in his attempt to reassert the crackers’ property rights.
These cases, albeit literary ideals, show how effective natural law can be in maintaining peace and justice, and how states create injustice and disorder by legalizing property rights violations. Certainly human beings are imperfect, so their carrying out of justice can be flawed or downright wrong, as Milford’s was. People can absolutely be swayed—by emotion, prejudice, self-interest, and any number of other reasons—to pick the wrong side in a conflict. But as flawed as people are, they will never do as much harm as a government legal mechanism—also run by imperfect humans—that can be manipulated to do systematic harm, especially not when individuals are fully accountable for their actions, as they are under a natural law order unhampered by government strongmen.
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