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Property in Thin Air

Published online by Cambridge University Press:  16 January 2009

Kevin Gray
M.A., Ph.D., LL.D. (Cantab.), Drapers' Professor of Law in the University of London at Queen Mary and Westfield College. This paper represents one of the products of a happy period spent in 1990 as a Visiting Fellow in the Division of Philosophy and Law in the Research School of Social Sciences at the Australian National University. It is inevitable that the thoughts expressed here should owe much to discussion with the Head of that Division, Professor Paul Finn, and also with Dr. Timothy Bonyhady of the Australian National University's Faculty of Law (although neither can of course be held responsible for the perverseness of the author's views). For help in locating materials thanks are particularly due to Ms. Jenny Degeling (of the Commonwealth Attorney-General's Department, Canberra) and to the Intellectual Property Law Unit at Queen Mary and Westfield College. Some of the ideas contained in this paper were initially presented at the University of Tasmania Law School's Residential Seminar Weekend at Cradle Mountain Lodge in July 1990. In its present form the paper is an extended version of an Inaugural Lecture delivered in the University of London on 1 May 1991.
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Proudhon got it all wrong. Property is not theft—it is fraud. Few other legal notions operate such gross or systematic deception. Before long I will have sold you a piece of thin air and you will have called it property. But the ultimate fact about property is that it does not really exist: it is mere illusion. It is a vacant concept—oddly enough rather like thin air.

Copyright © Cambridge Law Journal and Contributors 1991

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1 Glossa Ordinaria on the Corpus Iuris (Digest, VIII.2.1) (see Guibè, H., Essai sur la navigation aérienne en droit interne et en droit international (Paris 1912), p.35ff.).Google Scholar It has been suggested that the maxim may have derived, not from Roman origins, but from even earlier Jewish origins (see (1931) 47 L.Q.R. 14; Deuteronomy, xxx: 1114,Google ScholarIsaiah, vii: 11),Google Scholar but see D.E. Smith, “The Origins of Trespass to Airspace and the Maxim ‘Cujus est solum ejus est usque ad coelum’ “ (1982) 6 Trent Law Journal 33, 38. See also C.L. Bouvé, “Private Ownership of Airspace” (1930) 1 Air L.Rev. 232; Hackley, H. H., “Trespassers in the Sky” 21 Minn.L.Rev. 773 (19361937).Google Scholar

2 It has been pointed out that Franciscus, the son of Accursius, appears to have travelled to England in 1274 at the invitation of Edward I (see McNair, Lord, The Law of the Air, 3rd ed. (London 1964), p. 397).Google Scholar

3 For the earliest English reference, see the terminal note in Bury v. Pope (1586)Google Scholar Cro. Eliz. 118, 78 E.R. 375, where the maxim is said to have been known from the time of Edward 1 (1239–1307). The maxim was later incorporated in Co. Lilt., p. 4a;Google ScholarBl. Comm., vol. II, p. 18.Google Scholar

4 See Bernstein of Leigh (Baron) v. Skyviews & General Ltd. [1978]Google Scholar Q.B. 479, 486D, 487F. See also Ball, S.S., “The Vertical Extent of Ownership in Land” 76 U. of Penn. L. Rev. 631 (1928).Google Scholar

5 It may be that the maxim cuius est solum … never meant very much at all. In Bernstein of Leigh (Baron) v. Skyviews & General Ltd. [1978]Google Scholar Q.B. 479, 485C, Griffiths J. dismissed the maxim as merely “a colourful phrase”. The formula has been said to be “imprecise” and “mainly serviceable as dispensing with analysis” (Commissioner for Railways et al v. Valuer-General [1974]Google Scholar A.C. 328, 351G per Lord Wilberforce), and to have “no place in the modern world” (United States v. Causby, 328 U.S. 256, 261, 90 L. ed. 1206, 1210 (1946)). In no sense can the maxim be understood to mean that “land” comprehends the whole of the space from the centre of the earth to the heavens, not least since “so sweeping, unscientific and unpractical a doctrine is unlikely to appeal to the common law mind” (Commissioner for Railways et al. v. Valuer-General, supra, 351H-352A per Lord Wilberforce). Compare, however, Davies v. Bennison (1927) 22 Tas. L.R. 52, 55; Bursill Enterprises Pty. Ltd. v. Berger Bros. Trading Co. Pty. Ltd. (1971) 124 C.L.R. 73, 91 perJ, Windeyer; National Carriers Ltd. v. Panalpina (Northern) Ltd. [1981] A.C. 675, 708C per Lord Russell of Killowen.Google Scholar

6 See Bernstein of Leigh (Baron) v. Skyviews & General Ltd. [1978] Q.B. 479, 488A; Staden v. Tarjanyi (1980) 78 L.G.R. 614, 621f. See also Davies v. Bennison (1927) 22 Tas. L.R. 52, 57; Swetland v. Curtiss Airports Corporation, 55 F.2d 201, 203 (1932); Griggs v. Allegheny County, 369 U.S. 84, 88f., 7 L.Ed.2d 585, 588 (1962); Laird v. Nelms, 406 U.S. 797, 799f., 32 L.Ed.2d 499, 503 (1972).

7 United States v. Causby, 328 U.S. 256, 264, 90 Led. 1206,1212 (1946).

8 Re The Queen in Right of Manitoba and Air Canada (1978) 86 D.L.R. (3d) 631, 635 per Monnin J.A.

9 See e.g. Air Commerce Act of 1926 (49 U.S.C., § 171), which declared a “public right of freedom of interstate and foreign air navigation” in the navigable air space of the United States (see now 49 U.S.C., § 1304 (Supp. 1990)).

10 In v., SmithNew England Aircraft Co., 170 N.E. 385, 393 (1930),Google Scholar the Supreme Court of Massachussetts regarded as trespass the overflight of an aircraft at a height of 100 feet. In Britain no aircraft may ever fly “closer than 500 feet to any person, vessel, vehicle or structure” (Civil Aviation: The Rules of the Air and Air Traffic Control Regulations 1985, S.I. 1985/1714, reg. 5(l)(e)). An exception is made for aircraft “while landing or taking off” (reg. 5(2)(d)(i)) and for gliders “while hill-soaring” (reg. 5(2)(d)(ii)).

11 See Bernstein of Leigh (Baron) v. Skyviews & General Ltd. [1978] Q.B. 479, 487G per Griffiths J.

12 Such recognition appeared first in relation to overflight in hot air balloons (see e.g. Pickering v. Rudd (1815) 4 Camp. 219, 220f, 171 E.R. 70, 71).

13 See e.g. Civil Aviation Act 1982, s. 76 (1).Google Scholar

14 221 Cal. Rptr. 499 (1985), 505 per Grodin J.

15 221 Cal. Rptr. 499, 501.

16 E.I. duPont deNemours & Company, Inc. v. Christopher, 431 F.2d 1012, 1015 (1970), cert, denied 400 U.S. 1024, 27 L.Ed.2d 637 (1971), reh. denied 401 U.S. 976, 28 L.Ed.2d 250 (1971).

17 See Richardson, J.E., “Private Property Rights in the Air Space at Common Law” (1953) 31 Can. Bar Rev. 117, 120.Google Scholar

18 It was clearly implied in the observations of Griffiths J. in Bernstein of Leigh (Baron) v. Skyviews & General Ltd. [1978] Q.B. 479, 489G, that overflight would constitute trespass (and possibly nuisance) if the aircraft interfered with the owner's use of his land, as, for instance, through the “harassment of constant surveillance of his house from the air accompanied by the photographing of his every activity”.

19 221 Cal. Rptr. 499 (1985).

20 221 Cal. Rptr. 499, 504. See now, however, California v. Ciraolo, 476 U.S. 207, 214ff., 90 L.Ed.2d 210, 217f. (1986); Dow Chemical Co. v. United States, 476 U.S. 226, 239, 90 L.Ed.2d 226, 238 (1986); Florida v. Riley, 488 U.S. 445, 449ff., 102 L.Ed.2d 835, 841ff. (1989).

21 Following the retention election held on 4 November 1986, Rose Bird, Joseph Grodin and Cruz Reynoso lost their places on the Californian Supreme Court with effect from January 1987 (L.A. Times, 5 November 1986, Part I, p. 1, col. 1). It is fair to add that much of the campaign orchestrated against the unsuccessful candidates was prompted by the openly liberal stance adopted by them on such matters as the death penalty and electoral control of legislative redistricting. See R.S. Thompson, “Judicial Independence, Judicial Accountability, Judicial Elections, and the California Supreme Court: Defining the Terms of the Debate” 59 S. Cal. L. Rev. 809 (1985–86). For a personal view of the 1986 recall election, see also J.R. Grodin, “Developing a Consensus of Constraint: A Judge's Perspective on Judicial Retention Elections” 61 S. Cal. L. Rev. 1969, 1980 (1987–88); In Pursuit of Justice: Reflections of a State Supreme Court Justice (Berkeley 1989).Google Scholar

22 Hinman v. Pacific Air Transport, 84 F.2d 755, 758 (1936), affd. 300 U.S. 655, 81 L.ed. 865 (1936).

23 See e.g. Thrasher v. City of Atlanta, 173 S.E. 817, 826 (1934).

24 Bernstein of Leigh (Baron) v. Skyviews & General Ltd. [1978] Q.B. 479, 488B.

25 For instance, the Canadian Province of Manitoba fell flat on its face in 1978 when it attempted to impose a sales tax in respect of transactions on board aircraft flying over the province: the Manitoba courts held that the sales had not taken place “within the province” and were therefore outside the jurisdiction of the then current taxing statute (see Re The Queen in Right of Manitoba and Air Canada (1978) 86 D.L.R. (3d) 631).

26 Thus, for instance, it has long been recognised at common law that there can be no “absolute permanent property”, but only “qualified property”, in fire, light, air, water and wild animals (Bl. Comm., vol. II, pp. 14, 391, 395). See also Case of Swans (1592) 7 Co. Rep. 15b, 17b, 77 E.R. 435, 438; Blades v. Higgs (1865) 11 H.L.C. 621, 638, 11 E.R. 1474, 1481 per Lord Chelmsford.Google Scholar

27 Some doubt has been expressed whether the law of trespass provides the most suitable forum for dealing with tortious invasion of airspace (see e.g. Lyons v. The Queen (1985) 14 D.L.R. (4th) 482, 500f. per Estey J.). It may even be questioned at a more fundamental level whether actionability in trespass necessarily indicates that the plaintiff has any “property” in the land. It is, of course, true that access to remedies in trespass (and for that matter nuisance) rests traditionally upon “possession” rather than “title” (see Malone v. Laskey [1907] 2 K.B. 141, 151; Nunn v. Parkes & Co. (1924) 158 L.T. Jo. 431; Lewisham B.C. v. Roberts [1949] 2 K.B. 608, 622; Simpson v. Knowles [1974] V.R. 190, 195; Hull v. Parsons [1962] N.Z.L.R. 465, 467f.; Oldham v. Lawson (No. 1) [1976] V.R. 654, 657; Moore v. MacMillan [1977] 2 N.Z.L.R. 81, 89). It remains, however, a salutary fact that possession and title are by no means discrete concepts (see Bl. Comm., vol. II, p. 8).Google Scholar In relation to land, for instance, possession is prima facie evidence of seisin in fee and seisin “gives ownership good against everyone except a person who has a better, because older, title” (Newington v. Windeyer (1985) 3 N.S.W.L.R. 555, 563E-F per McHugh J.A.). See also CM. Rose, “Possession as the Origin of Property” 52 U. Chi. L. Rev. 73 (1985–86).

28 Lemmon v. Webb [1895] A.C. 1, 6, 8.

29 Lemmon v. Webb [1895] A.C. 1, 4; [1894] 3 Ch. 1, 14f., 17f., 24.

30 Ellis v. Loftus Iron Company (1874) L.R. 10 C.P. 10, 12. (“That may be a very small trespass, but it is a trespass in law”.)

31 Baten's Case (1610) 9 Co. Rep. 53b, 54a/b, 77 E.R. 810, 811f.; Fay v. Prentice (1845) 1 C.B. 828, 838, 840, 135 E.R. 769, 773f.; Ward v. Gold (1969) 211 Estates Gazette 155,159. See also Corbett v. Hill (1870) L.R. 9 Eq. 671, 673f.

32 Gifford v. Dent (1926) W.N. 336; Kelsen v. Imperial Tobacco Co. (of Great Britain and Ireland) Ltd. [1957] 2 Q.B. 334, 345.

33 Barker v. Corporation of the City of Adelaide [1900] S.A.L.R. 29, 33f.; Graves v. Interstate Power Co., 178 N.W. 376,377 (1920). See also Wandsworth Board of Works v. United Telephone Co. (1884) 13 Q.B.D. 904, 921 per Fry LJ.

34 See Smith v. New England Aircraft Co., 170 N.E. 385, 393 (1930);Google ScholarThrasher v. City of Atlanta, 173 S.E. 817, 826 (1934).Google Scholar

35 See Davies v. Bennison (1927) 22 Tas. L.R. 52, 55ff. per Nicholls C.J. (shooting of neighbour's cat on hot tin roof). English courts have sometimes sought to draw an uneasy distinction between the firing of a gun across a field in vacuo (Pickering v. Rudd (1815) 4 Camp. 219, 220, 171 E.R. 70, 71 per Lord Ellenborough C.J.) and the case where bullet fragments fall on the land (Clifton v. Viscount Bury (1887) 4 T.L.R. 8, 9). The attempt to deny the existence of trespass in the former case is explicable less by logic (see Kenyon v. Hart (1865) 6 B. & S. 249, 252, 122 E.R. 1188, 1189 per Blackburn J.) than by the courts’ clear reluctance to accord a civil remedy for purely trivial intrusion into airspace (see e.g. Gifford v. Dent [1926] W.N. 336). In his review of the case law Sir Frederick Pollock inclined against Lord EUenborough's view that it is no trespass “to interfere with the column of air superincumbent on the close” (The Law of Torts, 8th ed. (London 1908), p. 347f.).Google Scholar

36 Graham v. K.D. Morris & Sons Pty. Ltd. [1974] Qd. R. 1, 4D. See also Woollerton and Wilson Ltd. v. Richard Costain Ltd. [1970] 1 W.L.R. 411, 413D-E; John Trenberth Ltd. v. National Westminster Bank Ltd. (1979) 39 P. & C.R. 104, 106f.; Anchor Brewhouse Developments Ltd. v. Berkley House (Docklands Developments) Ltd. (1987) 38 B.L.R. 82, 94f.

37 See Lewvest Ltd. v. Scotia Towers Ltd. (1982) 126 D.L.R. (3d) 239, 240f. Here it appeared that by trespassing the defendant building contractor was saving approximately $500,000, but Goodridge J. ruled that if “a third party can gain economic advantage by using the property of another, then it must negotiate with that other to acquire user rights. The Court cannot give it to him.” See also Austin v. Rescon Construction (1984) Ltd. (1989) 57 D.L.R. (4th) 591, 593ff.

38 See e.g. Law of Property Act 1925, s. 205(l)(ix).

39 In England if a highway is maintainable by the relevant statutory highway authority at public expense, that authority holds a determinable fee simple interest in the surface of the highway and in so much of the subjacent land and superjacent air-space as is required for the discharge of its statutory duties (see Coverdale v. Charlton (1878) 4 Q.B.D. 104, 118, 121, 126; Foley's Charity Trustees v. Dudley Corpn. [1910] 1 K.B. 317, 322; Tithe Redemption Commission v. Runcorn U.D.C. [1954] Ch. 383, 398; Wiltshire County Council v. Frazer (1984) 47 P. & C.R. 69, 72; Highways Act 1980, s. 263. See also Muswellbrook Coal Co. Ltd. v. Minister for Mineral Resources and Energy (1986) 6 N.S.W.L.R. 654, 657C-658A.

40 See e.g. Cox v. Colossal Cavern Co., 276 S.W. 540, 542f. (1925) (underground cavern); Metropolitan Railway Co. v. Fowler [1893] A.C. 416, 422 (tunnel); Grigsby v. Melville [1974] 1 W.L.R. 80, 83D-E (cellar); Williams v. Usherwood (1981) 45 P. & C.R. 235, 253 (minerals).

41 That there may be a distinct fee simple estate in standing timber alone has been recognised since Herlakenden's Case (1589) 4 Co. Rep. 62a, 63b, 76 E.R. 1025, 1029f. See also Liford's Case (1614) 11 Co. Rep. 46b, 49a, 77 E.R. 1206, 1211; Eastern Construction Co. Ltd. v. National Trust Co. Ltd. [1914] A.C. 197, 208; Southwestern Lumber Co. v. Evans 275 S.W. 1078, 1082 (1925); Commonwealth of Australia v. New South Wales (1923) 33 C.L.R. 1, 34.

42 Re Trizek Manitoba Ltd. and City Assessor for the City of Winnipeg (1986) 25 D.L.R. (4th) 444, 452.Google Scholar

43 Macht v. Department of Assessments of Baltimore City, 296 A.2d 162, 168 (1972); Re Trizek Manitoba Ltd. and City Assessor for the City of Winnipeg (1986) 25 D.L.R. (4th) 444, 450.Google Scholar

44 Reilly v. Booth (1890) 44 Ch.D. 12, 23 per Cotton L.J., 26f. per Lopes L.J.

45 Macht v. Department of Assessments of Baltimore City, 296 A.2d 162, 168 (1972); Re Trizek Manitoba Ltd. and City Assessor for the City of Winnipeg (1986) 25 D.L.R. (4th) 444, 452.Google Scholar

46 Bursill Enterprises Pty. Ltd. v. Berger Bros Trading Co. Pty. Ltd. (1971) 124 C.L.R. 73, 91 per WindeyerJ.; Rattov. Trifid Pty. Ltd. [1987] W.A.R. 237,255 per Brinsden J.

47 Re Trizek Manitoba Ltd. and City Assessor for the City of Winnipeg (1986) 25 D.L.R. (4th) 444.

48 See e.g. P.H. Winfield, “Privacy” (1931) 47 L.Q.R. 23, 24ff. Compare cases where a complaint of trespass was successfully brought against a defendant standing on a highway which was part of the land belonging to the plaintiff (Harrison v. Duke of Rutland [1893] 1 Q.B. 142, 146ff.; Hickman v. Maisey [1900] 1 Q.B. 752, 755ff.).

49 If intrusion it be, for the real question may be whether for legal purposes this situation is correctly analysed as merely one in which light from persons or objects on the land overlooked travels to the retina of the viewer (see Bathursl City Council v. Saban (1985) 2 N.S.W.L.R. 704, 706B per Young J.).

50 It is significant that, at least in the early English and American case law, claims of privacy were discussed and decided in proprietary or quasi-proprietary terms. See Pope v. Curl (1741) 2 Atk. 342, 26 E.R. 608; Denis v. Leclerc (1811) 1 Mart., O.S., (La.) 297, 5 Am. Dec. 712, 714ff.; Hamilton v. Lumbermen's Mutual Casualty Co., 82 So.2d 61, 63f. (1955); Love v. Southern Bell Telephone and Telegraph Co., 263 So.2d 460, 465f. (1972), affd. 266 So.2d 429 (1972).

51 See e.g. Cherrington v. Abney (1709) 2 Vern. 646, 23 E.R. 1022 (“privacy is valuable”). See also P.H. Winfield, (1931) 47 L.Q.R. 23, 28.

52 (1765) 19 Howell's State Trials 1029, 1066.

53 Malone v. Metropolitan Police Commissioner [1979] Ch. 344, 357F per Megarry V.-C. See also Clerk and Lindsell on Torts, 16th ed. (London 1989), paras. 145, 2466;Google ScholarStreet, H., The Law of Torts, 8th ed. by Brazier, M. (London 1988), pp. 153, 476;Google ScholarHalsbury's Laws of England, 4th ed., vol. 8, p. 557 (para. 843). The classic argument for legal recognition of a general right of privacy is still that of S.D. Warren and L.D. Brandeis, “The Right to Privacy” 4 Harv. L. Rev. 193 (1890–91).Google Scholar

54 Compare section 652B of the American Restatement of Torts (Second), which provides that “[o]ne who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person” (Restatement of the Law, Second: Torts 2d. (St. Paul, Minn. 1977), vol. 3, p. 378ff.). As was indicated in N.O.C., Inc. v. Schaefer, 484 A.2d 729, 731 (1984), the case law demonstrates that this form of liability requires “a balance test: social need is to be weighed against the individual's right to privacy”. In N.O.C., Inc. v. Schaefer, the Superior Court of New Jersey refused to impose liability on a defendant who had exercised surveillance of the neighbouring plaintiffs hazardous waste facility by means of systematic observation of its operations from a position in a “tree fort” in her own backyard. The Court held that the plaintiffs privacy interests were here outweighed by the defendant's “legitimate interest” in protecting herself and her community, by vigilant monitoring, against hazardous waste violations by the plaintiff. On the delimitation of “legitimate” or “justifiable” expectations of privacy under the Fourth Amendment to the United States Constitution, see Katz v. United States, 389 U.S. 347 (1967), 360f., 19 L.Ed.2d 576, 587f. per Harlan J; Smith v. Maryland, 442 U.S. 735, 740f., 61 L.Ed.2d 220, 226f. (1979).Google Scholar

55 In 1972 the Younger Committee decided by a majority not to recommend the creation of a general right of privacy (see Report of the Committee on Privacy, Cmnd. 5012, paras. 33ff., 661ff.). The Committee did, however, urge that surreptitious surveillance by technical device should give rise, in certain circumstances, to both criminal and civil liability (paras. 53, 562ff.). In some jurisdictions a tort of violation of privacy has been created by statute, e.g. Privacy Act (R.S.B.C. 1979, c. 336), s.l(l). See Silberv. British Columbia Broadcasting System Ltd. (1986) 25 D.L.R. (4th) 345, 349. Modern French law even attaches criminal liability to certain kinds of invasion of privacy (Code pénal, art. 368). See note 78, post.

56 William Aldred's Case (1610) 9 Co. Rep. 57b, 58b, 77 E.R. 816, 821.

57 Browne v. Flower [1911] 1 Ch. 219, 225. See, however, P.H. Winfield, (1931) 47 L.Q.R. 23, 29f., for reference to the possibility which existed in British India that, in virtue of local custom, a landowner might acquire an easement of privacy pursuant to the Indian Easements Act 1882, s. 18.

58 In re Penny and the South Eastern Railway Co. (1857) 7 E. & B. 660, 669ff., 119 E.R. 1390, 1393f. See also Report of the Committee on Privacy, Cmnd. 5012 (1972), para. 392. It seems that in the different cultural climate of certain parts of British India during the 19th century customary law intervened to prevent the overlooking of land where otherwise the privacy and seclusion of parda-nashin women would have been threatened. See Gokal Prasad v. Radho (1888) I.L.R. 10 Allahabad 358, 385ff. per Edge C.J.; Kenny, C.S., Cases on the English Law of Tort, 5th ed. (Cambridge 1928), p. 367; P.H. Winfield, (1931) 47 L.Q.R. 23, 29.Google Scholar

59 See e.g. J. Lyons & Sons v. Wilkins [1899] 1 Ch. 255, 267 per Lindley M.R., 271f. per Chitty L.J., 276 per Vaughan Williams L.J.; Ward Locke & Co. (Ltd.) v. Operative Printers’ Assistants’ Society (1906) 22 T.L.R. 327, 328ff. In some jurisdictions watching and besetting may also be a criminal offence (see e.g. Crimes Act 1900 (N.S.W.), s. 545B).

60 This certainly appears to be the law in Scotland (Raffaelli v. Heatly 1949 J.C. 101, 104f. per Lord Mackay. See also Butcher v. Jessop 1989 S.L.T. 593, 600 per Lord Murray). Compare, however, Frey v. Fedoruk [1950] S.C.R. 517, 520, 525ff. (Supreme Court of Canada), reversing the majority decision of the British Columbia Court of Appeal (1949) 95 Can. C.C. 206. In England, under the Justices of the Peace Act 1361, the peeping Tom can be bound over to keep the peace or to be of good behaviour (see Stone's Justices’ Manual 1990, 122nd ed. (London 1990), vol. 1, paras. 3–131ff.). The peeping Tom may also be guilty of a criminal assault and/or an offence under the Vagrancy Act 1824, s. 4 (see Smith v. Chief Superintendent, Woking Police Station (1983) 76 Cr.App.R. 234, 237f.).Google Scholar

61 Johnson v. Wyatt (1863) 2 De G.J. & S. 18, 27, 46 E.R. 281, 284 per Knight Bruce L.J.

62 Tapling v. Jones (1865) 11 H.L.C. 290, 317, 11 E.R. 1344, 1355 per Lord Chelmsford. The same general conclusion emerges from the American case law (see Cohen v. Perrino, 50 A.2d 348, 349 (1947); 2 C.J.S. Adjoining Landowners, §70).

63 Tapling v. Jones (1865) 11 H.L.C. 290, 305, 11 E.R. 1344, 1350 per Lord Westbury L.C. See also Cross v. Lewis (1824) 2 B. & C. 686, 688 ff., 107 E.R. 538, 539f.

64 Turner v. Spooner (1861) 30 L.J. Ch. 801, 803.

65 This conclusion was echoed more recently in the Younger Committee's statement that “[i]t is not trespass to watch your neighbour's pursuits in his garden as long as you do not enter his land, even if you employ binoculars to improve your view” (see Report of the Committee on Privacy, Cmnd. 5012 (1972), Appendix 1, para. 12). Tort lawyers of a previous generation would have been aware of the unreported case in 1904 of the Balham dentist who failed to obtain any remedy against his neighbours, where those neighbours had carefully positioned large mirrors in such a way as to be able to observe operations in his surgery. See Kenny, C.S., op. tit., p. 367; Victoria Park Racing and Recreation Grounds Co. Ltd. v. Taylor (1937) 58 C.L.R. 479, 504 per Rich J., 52Of. per Evatt J.Google Scholar

66 Chandler v. Thompson (1811) 3 Camp. 80, 81, 170 E.R. 1312, 1313 per Le Blanc J.; Cross v. Lewis (1824) 2 B. & C. 686, 689, 107 E.R. 538, 539 per Bayley J.; Tapling v. Jones (1865) 11 H.L.C. 290, 317, 11 E.R. 1344, 1355 per Lord Chelmsford. Over a century later the Younger Committee could advocate no better remedy for the same problem. The Committee did not think “that the practices of neighbours … are so new or offensive or have so changed in character as to justify any change in the law” (Report of the Committee on Privacy, Cmnd. 5012 (1972), paras. 398, 553ff.).

67 Tapling v. Jones (1865) 11 H.L.C. 290, 311, 11 E.R. 1344, 1353 per Lord Cranworth. See also Harris v. Oe Pinna (1886) 33 Ch.D. 238, 260 per Cotton L.J.

68 (1865) 11 H.L.C. 290, 305,11 E.R. 1344, 1350.

69 In re Penny and the South Eastern Railway Co. (1857) 7 E. & B. 660, 669ff., 119 E.R. 1390, 1393ff. Compensation for loss of privacy was likewise denied where the plaintiffs land was overlooked by a newly constructed public roadway (see Duke of Buccleuch v. Metropolitan Board of Works (1870) L.R. 5 Ex. 221, 237 per Blackburn J.)

70 In re Penny and the South Eastern Railway Co. (1857) 7 E. & B. 660, 669, 119 E.R. 1390, 1394 per Wightman J.

71 In re Penny and the South Eastern Railway Co. (1857) 7 E. & B. 660, 671, 119 E.R. 1390, 1394 per Crompton J.

72 It is noteworthy that 19th century courts were similarly unsympathetic to other claims to adventitious benefit which, if conceded, would have curtailed the scope of urban development within the vicinity. See e.g. Webb v. Bird (1861) 10 C.B. (N.S.) 268, 284, 142 E.R. 455, 461 (affd. (1863) 13 C.B. (N.S.) 841,143 E.R. 332), where Erie C.J. rejected a claim of unobstructed access to a current of wind for a windmill on the ground that such a claim “would operate as a prohibition to a most formidable extent to the owners of the adjoining lands—especially in the neghbourhood [sic] of a growing town”.

73 It is not irrelevant, however, that even in those jurisdictions most solicitous of constitutional rights of privacy the courts have denied that any unlawful invasion of privacy occurs where law enforcement officers have been able to observe evidence of criminal activity by means of inspection or surveillance from a position outside the premises of the defendant. Visual penetration of airspace has not, in itself, vitiated the detection of crime. See e.g. United States v. Lee, 274 U.S. 559, 563, 71 L.ed. 1202, 1204 (1927); Fullbright v. United States, 392 F.2d 432, 434f. (1968), cert, denied 393 U.S. 830, 21 L.Ed.2d 101 (1968).

74 See generally 86 A.L.R,3d 374. American courts have often restrained the commercial publication of photographs of persons unwittingly caught in embarrassing poses. Thus the courts ruled against the surreptitious photography of a woman caught in an unintended Marilyn Monroe-type pose above an air vent. See Daily Times Democrat v. Graham, 162 So.2d 474 (1964), but compare Ann-Margret v. High Society Magazine, Inc., 498 F. Supp. 401 (1980); Shields v. Gross, 448 N.E.2d 108 (1983). Conversely—though query—the courts refused to enjoin publication of a photograph of a young couple canoodling in an ice cream parlour, on the ground that by their unabashed self-exposure the couple had voluntarily placed their conduct in the public domain and had thus waived any claim of privacy (Gill v. Hearst Publishing Co., 253 P.2d 441 (1953)). See also Neff v. Time, Inc., 406 F.Supp. 858, 860ff. (1976). The concern of the present paper is not, however, with such questions. Nor is it with the ever expanding case law about investigative television journalists who, accompanied by camera crews, intrude upon the business offices of unsavoury or controversial commercial outfits (see e.g. Lincoln Hunt Australia Ply. Ltd. v. Willesee (1986) 4 N.S.W.L.R. 457; Silber v. British Columbia Broadcasting System Ltd. (1986) 25 D.L.R. (4th) 345; Emcorp Ply. Ltd. v. Australian Broadcasting Corporation [1988) 2 Qd. R. 169).

75 (1985) 2 N.S.W.L.R. 704.

76 (1985) 2 N.S.W.L.R. 704, 706B. See also Aisenson v. American Broadcasting Co., Inc., 269 Cal. Rptr. 379, 388 (1990). There is, of course, a clear distinction between this situation and one in which the defendant's visual intrusion into the plaintiffs privacy is achieved by means of unconsented physical entry upon the plaintiffs premises (see e.g. Souder v. Pendleton Detectives, Inc., 88 So.2d 716, 718 (1956); but compare Figured v. Paralegal Technical Services, Inc., 555 A.2d 663 (1989)). See also “Investigations and Surveillance, Shadowing and Trailing, as Violations of Right of Privacy” 13 A.L.R.3d 1025.

77 The case of the omnipresent and intrusive paparazzo may not, for this purpose, constitute an ordinary case. See Galella v. Onassis 487 F.2d 986, 998 (1973), where an unusually persistent photographer was restrained from making any approach within a distance of 25 feet of the widow of a former President. The paparazzo was likewise prohibited by injunction from blocking her movement in public places or from engaging in any conduct likely to alarm or endanger her, but the court declined otherwise to inhibit his freedom to photograph a celebrity. It is clear that the basis of the complaint in this case related more heavily to assault and invasion of privacy than to any allegation of visual trespass.

78 The law of the United States does not generally recognise the photographer's immunity in such broad terms, confirming only that it is, in general, no invasion of privacy to take a photograph of a person in a public place (see Forster v. Manchester, 189 A.2d 147, 150f. (1963)). French law goes even further and provides that it is a criminal violation of a person's privacy (atteinte ` l'intimité de la vie privée) to photograph that person without his consent while he is in a private place (dans un lieu privÉ) (Code pÉnal, art. 368). See, e.g., the 5,000 franc penalty recently imposed where a complainant alleged that, while standing behind a closed window in his own apartment, he had been involuntarily photographed through a telephoto lens operated from an elevated position in a neighbouring building. (The photographs were subsequently published in Paris Match.) See Cow de Cassation, Chambre Criminelle, 25 April 1989: No. 86–93.632 (Lexis Transcript). Compare State v. Martin, 658. P.2d 1024, 1026f. (1983); Snakenberg v. Hartford Casualty Insurance Company, Inc., 383 S.E.2d 2, 5ff. (1989).

79 Hickman v. Maisey [1900] 1 Q.B. 752, 756. American law likewise seems to acknowledge that “whatever the public may see from a public place cannot be private” (see Bisbee v. John C. Conover Agency, Inc., 452 A.2d 689, 691 (1982); N.O.C., Inc. v. Schaefer, 484 A.2d 729, 732, n.l(1984)).

80 (1937) 58C.L.R. 479.

81 (1937) 58 C.L.R. 479, 502.

82 (1937) 58 C.L.R. 479, 499f. per Rich J., 523 per McTiernan J.

83 (1937) 58 C.L.R. 479, 495 per Latham C.J.

84 The Judicial Committee of the Privy Council refused leave to appeal: The Times, 21 January 1938 (see G.W. Paton, (1938) 54 L.Q.R. 319). A conclusion similar to that adopted in Victoria Park Racing had been reached, again by majority decision, in an earlier American case. See Detroit Base-ball Club v. Deppert (1886) 61 Mich. 63, 69, 1 Am. St. Rep. 566, 569, 27 N.W. 856. See also N.O.C., Inc. v. Schaefer, 484 A.2d 729 (1984); 1 Am.Jur.2d, Adjoining Landowners, §19 (p.704).

85 (1937) 58 C.L.R. 479, 494 per Latham C.J. See also 507 per Dixon J. (“An occupier of land is at liberty to exclude his neighbour's view by any physical means he can adopt”).

86 (1937) 58 C.L.R. 479, 493. See also 523 per McTiernan J.

87 (1937) 58 C.L.R. 479, 504.

88 (1937) 58 C.L.R. 479, 522.

89 In perhaps the most complex of all the Victoria Park Racing judgments, Evatt J. described the law of nuisance as “an extension of the idea of trespass into the field that fringes property” ((1937) 58 C.L.R. 479, 513, citing Street, T.A., Foundations of Legal Liability (Theory and Principles of Tort), (Northport, Long Island, N.Y. 1906), vol. 1, p. 211).Google Scholar

90 In this respect the majority and the minority in the High Court were at one. McTiernan J. was prepared (at 526) to condemn the user of Taylor's land as “quite impudent”, while Evatt J. (at 522) considered the defendants guilty of “almost reckless disregard … of the ordinary decencies and conventions which must be observed as between neighbours.”

91 (1937) 58 C.L.R. 479, 509.

92 (1937) 58 C.L.R. 479, 501.

93 Evatt J. similarly saw the defendants as having interfered with the plaintiffs “profitable use of its land” in order to “divert a material portion of the profit from those who have earned it to those who have not” ((1937) 58 C.L.R. 479, 518, citing International News Service v. Associated Press, 248 U.S. 215 (1918), 240, 63 L.ed. 211, 220 per Pitney J.)

94 (1937) 58 C.L.R. 479, 518.

95 (1937) 58 C.L.R. 479, 514.

96 (1937) 58 C.L.R. 479, 518.

97 (1937) 58 C.L.R. 479, 508.

98 (1937) 58 C.L.R. 479, 525.

99 248 U.S. 215, 248ff., 63 L.ed. 211, 221ff (1918). In International News Service v. Associated Press, the Supreme Court of the United States handed down a highly controversial majority ruling that a news gatherer may claim “quasi property” in uncopyrighted news matter (post, note 2).

1 (1937) 58 C.L.R. 479, 509f. The High Court of Australia has more recently expressed its approval of the decision in Victoria Park Racing (see Moorgate Tobacco Co. Ltd. v. Philip Morris Ltd. [No. 2] (1984) 156 C.L.R. 414, 444f. per Deane J.).

2 The plaintiff had argued strongly that a “valuable proprietary right” was constituted by the plaintiffs “power to exclude the public generally from the right to see whatever may be produced on [the plaintiffs] land by way of spectacle” ((1937) 58 C.L.R. 479, 483). The plaintiffs assertion of “property” or “quasi-property” in the relevant spectacle drew much of its intellectual support from the majority decision of the United States Supreme Court in International News Service v. Associated Press, 248 U.S. 215, 236ff., 63 L.ed. 211, 219ff. (1918).

3 (1937) 58 C.L.R. 479, 496f. For a wider view of “property” in this context, see D.F. Libling, “The Concept of Property: Property in Intangibles” (1978) 94 L.Q.R. 103,106ff.

4 The present paper uses the term “commons” as inclusive of all unpropertised resources, although it is not inconsistent that some parts of the “commons” may be subjected to varying degrees of public (as distinct from private) regulation. There may legitimately be some debate about the precise terminology used to describe the residuum of resources which are not subjected to the regime of private property. For the purpose of this paper, however, it matters not whether unpropertised resources are said to remain in the “commons” or to constitute “public goods”, “inherent public goods”, “collective goods”, or “communal goods”. Such variants of language may reflect the fact that certain unpropertised resources (e.g. air traffic routes or tidal waterways) can still be subject to some form of regulatory regime directed towards the public interest (see e.g. CM. Rose, “The Comedy of the Commons: Custom, Commerce, and Inherently Public Property” 53 U. Chi. L. Rev. 711 (1986); Bonyhady, T.J., The Law of the Countryside (Abingdon 1987), p.253ff.). Some degree of public administration is not incompatible with a “commons” classification (and may even in some cases be considered as creating a “public property” vested in the state). The majority of unpropertised resources in the commons remain, however, entirely free of any form of regulation.Google Scholar

5 The terminology of “excludability” delimits the scope of “property” in a somewhat different way from the results achieved by reference to a notion of “commodification” (see e.g. M.J. Radin, “Market-Inalienability” 100 Harv. L. Rev. 1849, 1855ff. (1986–87)). The distinction between “commodifiable” and “non-commodifiable” goods seems to be intrinsically related to capacity for sale in the market place, whereas the distinction between “excludable” and “non-excludable” resources, by placing an emphasis upon wider aspects of resource control, comes closer to constituting a test of “property”.

6 See Waldron, Jeremy, “Can communal goods be human rights?” (1987) 28 Arch. Europ. Sociol. 296, 304ff.Google Scholar

7 (1937) 58 C.L.R. 479, 494 per Latham C.J.

8 (1937) 58 C.L.R. 479, 522

9 (1937) 58 C.L.R. 479, 495.

10 There are, of course, other contexts in which the proprietary status of a right is said to depend vitally on the steps taken to exclude third parties from unconsented access. See 63A Am. Jur. 2d, Property, §5 (p. 234)Google Scholar (“A secret unpatented preparation, formula or process may be the subject of property … so long as the inventor or discoverer himself protects it”). Pursuant to section 1(4)(ii) of the Uniform Trade Secrets Act, for instance, a “trade secret” may be protected against misappropriation only if and to the extent that it comprises “information … that … is the subject of efforts that are reasonable under the circumstances to maintain its secrecy” (14 U.L.A., Civil Procedural and Remedial Laws (St Paul, Minn. 1990), p. 438f.). See also Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1002, 81 L.Ed.2d 815, 832 (1984). The relevance of control over the access of strangers is even more intensely evident in Colorado's Uniform Trade Secrets Act (1986, c.63), which provides that “[t]o be a trade secret the owner thereof must have taken measures to prevent the secret from becoming available to persons other than those selected by the owner to have access thereto for limited purposes” (C.R.S. 7–74–102(4)). The Uniform Act provisions have the consequence that the American courts have denied trade secret protection in respect of manufacturing processes where the claimant manufacturer has practised lax security at its plant. See Electro-Craft Corporation v. Controlled Motion, Inc., 332 N.W.2d 890, 901f. (1983) (plant had seven unlocked entrances; employees were not required to wear security badges; documents and designs were not kept in central or locked location). See also Gordon Employment, Inc. v. Jewell, 356 N.W.2d 738, 741 (1984) (client lists kept in unlocked files).Google Scholar

11 This means that I can still claim “property” in a motor car even though I live in a neighbourhood with a high incidence of car theft. Nor do 1 lose “property” in the car simply by leaving it momentarily open with the key in the ignition. Neither circumstance in itself indicates that it has become physically unrealistic to exercise long-term control over the access of strangers to the benefits of the resource. (I normally leave the car locked, with the brake on, and perhaps even with the added security of some anti-theft device.) The test of physical excludability is nevertheless one of degree. If I lived in a neighbourhood in which, despite all my efforts, the taking away of cars was not a mere statistical possibility but a virtual inevitability (i.e., to park the car is almost certainly to lose it), the claim to have “property” in a car would soon cease to be meaningful. Physical and moral non-excludability interact, and in such circumstances car “theft” would cease to attract moral censure. The practice of taking cars would come to be viewed as neither more nor less remarkable than the benevolent system of communally shared bicycles which, according to legend, used to operate within some ancient university towns. Under this scheme the bicycles (themselves of unknown provenance) were simply used at will and then abandoned at the terminus of such use, ready for the next user. The users were thus merely participants in a regime of shared resources in which private property no longer had any meaning.

12 (1937) 58 C.L.R. 479, 509f. per Dixon J., 527 per McTiernan J.

13 248 U.S. 215 (1918), 255f., 63 L.ed. 211, 227.

14 [1916] 2 K.B. 880 (Horridge J.), [1917] 2 K.B. 125 (C.A.).

15 [1916] 2 K.B. 880, 884.

16 One possible response to such a suggestion places emphasis on the test of reasonable practicability. This test plays an important role, for instance, in the protection of trade secrets under the Uniform Trade Secrets Act (ante, note 10). Whether the claimant of a trade secret has exercised due diligence in preserving the secrecy of information may turn on the amount of time, expense, effort and risk involved in keeping the relevant information secret (see R.A. Klitzke, “The Uniform Trade Secrets Act” 64 Marquette L. Rev. 277, 279 (1980–81)). American courts have tended to hold that excessive protective measures are not required in defence of a trade secret. In E.I. duPont deNemours & Co., Inc. v. Christopher, 431 F.2d 1012 (1970), cert, denied 400 U.S. 1024, 27 L.Ed.2d 637 (1971), reh. denied 401 U.S. 976, 28 L.Ed.2d 250 (1971), it was held that aerial photography of the plaintiffs partially built chemical plant had constituted an improper means of discovering the plaintiffs trade secrets. Judge Goldberg ruled (431 F.2d 1012, 1016f.) that “[pjerhaps ordinary fences and roofs must be built to shut out incursive eyes, but we need not require the discoverer of a trade secret to guard against the unanticipated, the undetectable, or the unpreventable methods of espionage now available … To require DuPont to put a roof over the unfinished plant to guard its secret would impose an enormous expense to prevent nothing more than a school boy's trick. We introduce here no new or radical ethic since our ethos has never given moral sanction to piracy … Reasonable precautions against predatory eyes we may require, but an impenetrable fortress is an unreasonable requirement …” (Significantly, the court did not hold that there had been any taking of “property” or that “all information obtained through every optical extension is forbidden”, but merely that the improper means of discovery in itself generated a cause of action under Texas law.)

17 As has been said in the United States in the context of a rather different kind of claim to visual privacy, the claimant “accepts a limited risk of observation as a consequence of the limitations of the physical structure”. See State v. Holt, 630 P.2d 854, 857 (1981).

18 A remarkably similar approach has been held to be determinative in a different context. Courts in the United States have frequently been required to rule upon whether, in constitutional terms, a criminal suspect has a “reasonable expectation of privacy” in respect of activities or artefacts within his home which are observable by law enforcement officers from a position outside that home. The courts have upheld the constitutional propriety of observation ab extra where the defendant could easily have frustrated visual inspection by drawing curtains over windows, but in the event neglected to take such protective action. In Commonwealth v. Hernley, 263 A.2d 904, 907 (1970), Jacobs J. emphasised that in such situations “it was incumbent on the suspect to preserve his privacy from visual observation. To do that the appellees had only to curtain the windows … The law will not shield criminal activity from visual observation where the actor shows such little regard for his privacy.” See also People v. Becker, 533 P.2d 494, 495f. (1975); Commonwealth v. Williams, 396 A.2d 1286, 1291 (1978); Commonwealth v. Oglialoro, 579 A.2d 1288, 1291f. (1990).

19 If I park my car in the street and you steal it, the resource represented by the car does not cease to be propertised merely because I adopted no legal means to make it excludable. The resource does not become a non-excludable resource, and I did not cease to have “property” in it, simply because I took no legal measures to control the access of strangers to the benefits of the car. In all likelihood there were no legal measures which I could have taken in the circumstances. (I could, of course, have sought to control access to the car by booby-trapping it while it stood in the parking-place—but this would not have been, in any sense, a legal means of protecting my resource against strangers.) It is, of course, otherwise if your possession of the car is underpinned by some legal device of loan or bailment. Conversely if, by gifting the car to you, I deliberately put it out of my power to control the access of strangers, I have chosen perhaps the oldest and simplest means of disclaiming “property” in a resource.

20 There is at this point a danger of circularity, i.e., that references to legal excludability may simply derive tautologous legal consequences from a legal premise. The danger is avoided, however, so long as it is appreciated that the real focus of questions of legal excludability is not the inquiry whether a particular claim is legally protected but the rather different and more refined inquiry whether a particular claimant is asserting “property” in the resource which is the subject of dispute.

21 Thus, on one view, the law of contract “creates a property in expectations. One who breaches deprives the promisee in a sense no less real than the thief (see D. Kennedy, “Form and Substance in Private Law Adjudication” 89 Harv. L. Rev. 1685, 1714 (1975–76)).

22 The possibility of contractual protection is not, of course, always present. There are many circumstances in which contractual protection of a particular resource is not feasible, precisely because the world consists of a myriad of strangers with whom individual contractual relations are simply not practicable. Obviously I cannot (and therefore need not) assert “property” in a motor car by concluding millions of contracts with cohorts of strangers. Contract becomes a meaningful protective device only in those situations where a resource-claimant enjoys a nexus with a stranger which is sufficiently close (i) to present that stranger with an opportunity of unconsented access to the resource, and (ii) to offer a practicable possibility of contractual regulation of that stranger's access.

23 (1937) 58 C.L.R. 479, 526f.

24 (1937) 58 C.L.R. 479, 526. The decision in Detroit Base-ball Club v. Deppert (1886) 61 Mich. 63, 1 Am. St. Rep. 566 (ante, note 84) was similarly based, at least in part, on the absence of any exclusiveness in the rights claimed by the aggrieved owner of an overlooked sporting venue.

25 [1916] 2 K.B. 880, 883.

26 [1917] 2 K.B. 125, 128 per Swinfen Eady L.J.

27 [1917] 2 K.B. 125, 128.

28 305 U.S. 111 (1938); 83 L.ed. 73.

29 305 U.S. 111, 122; 83 L.ed. 73, 80.

30 (1984) 156 C.L.R. 41.

31 Deane J., for instance, seemed prepared to contemplate that a fiduciary relationship might be generated in respect of a matter such as local product goodwill ((1984) 156 C.L.R. 41, 123), although he preferred to respond to the plaintiff's claim with a much more extensive application of the doctrine of constructive trusts ((1984) 156 C.L.R. 41, 124f.).

32 (1984) 156 C.L.R. 41, 100.

33 (1984) 156 C.L.R. 41, 101.

34 (1984) 156 C.L.R. 41, 101.

35 Such an approach had been anticipated in the statement of McLelland J. at first instance ([1982] 2 N.S.W.L.R. 766, 811B) that HPI was “for the duration of the distributorship entrusted by USSC with the development and servicing of the market for USSC … products in Australia”. The New South Wales Court of Appeal, although it adverted briefly to the argument that McLelland J. appeared to have regarded USSC's product goodwill “as a species of property”, took the matter no further ([1983] 2 N.S.W.L.R. 157,199A).

36 (1984) 156 C.L.R. 41,70.

37 (1984) 156 C.L.R. 41,145.

38 (1984) 156 C.L.R. 41, 140f.

39 (1984) 156 C.L.R. 41, 141. See also p. 72 per Gibbs C.J. (“It was open to USSC to include in its contract whatever terms it thought necessary to protect its position”).

40 (1984) 156 C.L.R. 41,146.

41 (1984) 156 C.L.R. 41,146f.

42 See Rathwell v. Rathwell (1978) 83 D.L.R. (3d) 289, 306,Google Scholar where Dickson J. made his now classic statement that “for the principle of unjust enrichment to succeed, the facts must display an enrichment, a corresponding deprivation, and the absence of any juristic reason—such as a contract or disposition of law—for the enrichment”. See also Pettkus v. Becker (1981) 117 D.L.R. (3d) 257, 273f.Google Scholarper Dickson J; Sorochan v. Sorochan (1986) 16 D.L.R. (4th) 1, 5per Dickson C.J.C.Google Scholar

43 For a commentary on the way in which much modern Australian commercial law has tended to adopt “the moral ethos of the neighbourhood principle”, see P.O. Finn, “Commerce, the Common Law and Morality” (1989) 17 Melbourne U.L.R. 87,96ff.

44 See Locke, John, Two Treatises of Government, 2nd critical ed. by Laslett, P. (Cambridge 1967),Google Scholar The Second Treatise, s.27 (p. 306). There is a view that the Lockean proviso “enough and as good” has been wholly misconstrued and was not originally intended to be restrictive of appropriation. See Waldron, J., “Enough And As Good Left For Others” 29 Philosophical Quarterly 319, 320 (1979)CrossRefGoogle Scholar. For a more general assault on the Lockean theory of appropriation, see Day, J.P., “Locke on Property16 Philosophical Quarterly 207 (1966).CrossRefGoogle Scholar

45 See Lynch v. Household Finance Corp., 405 U.S. 538, 552, 31 L.Ed.2d 424,434f. (1972), where Justice Stewart observed that “the dichotomy between personal liberties and property rights is a false one”.

46 When asked to discern “one central indisputable principle of what may be called substantive natural law—Natural Law with capital letters”, the late Lon Fuller found it, significantly, in “the injunction: Open up, maintain, and preserve the integrity of the channels of communication by which men convey to one another what they perceive, feel, and desire”. It was Fuller's firm belief that “if we were forced to select the principle that supports and infuses all human aspiration we would find it in the objective of maintaining communication with our fellows … Communication is something more than a means of staying alive. It is a way of being alive.” See Fuller, L.L., The Morality of Law (New Haven and London 1964), p. 185f.Google Scholar

47 (1937) 58C.L.R. 479, 4%.

48 (1937) 58 C.L.R. 479, 494.

49 (1937) 58 C.L.R. 479, 496. According to McTiernan J., the plaintiff in Victoria Park Racing had not averred wrongfulness by the defendants “any more than if the plaintiff were to allege that the defendants saw the spectacle and described it to a gathering of bystanders” ((1937) 58 C.L.R. 479, 524).

50 (1937) 58 C.L.R. 479, 496.

51 (1937) 58 C.L.R. 479, 511 per Dixon J.

52 (1937) 58 C.L.R. 479, 498.

53 (1937) 58 C.L.R. 479, 498. It was, of course, Latham C.J. who insisted some years later that “knowledge is neither real nor personal property” and that a “man with a richly stored mind is not for that reason a man of property” (Federal Commissioner of Taxation v. United Aircraft Corporation (1943) 68 C.L.R. 525,534). See also Smith Kline & French Laboratories (Australia) Ltd. v. Secretary, Department of Community Services and Health (1990) 95 A.L.R. 87, 135 per Gummow J. (“knowledge per se is not proprietary in character”).

54 See e.g. F. Snare, “The Concept of Property” (1972) 9 Am. Phil. Oly. 200, 203.

55 (1988) 166 C.L.R. 79.

56 Australian Bicentennial Authority Act 1980 (Cth), s.22(l), (6).

57 The phrase was that used in argument by K. Mason O.C. ((1988) 166 C.L.R. 79, 83).

58 (1988) 166 C.L.R. 79, 99. As the joint judgment pointed out, even wholly unconnected and innocuous commercial ventures, such as advertising of the “Family Law Conference Melbourne 1988”, apparently fell foul of the legislation.

59 (1988) 166 C.L.R. 79, 100.

60 (1988) 166 C.L.R. 79, 99f.

61 (1988) 166 C.L.R. 79, 115.

62 (1988) 166 C.L.R. 79, 116.

63 (1988) 166 C.L.R. 79, 116.

64 Whitney v. California, 274 U.S. 357, 375, 71 L.ed. 1095, 1105 (1927). Justice Brandeis pointed out that the founding fathers of American independence had plainly believed that such freedoms are “means indispensable to the discovery and spread of political truth; that without free speech and assembly discussion would be futile; that with them, discussion affords ordinarily adequate protection against the dissemination of noxious doctrine; that the greatest menace to freedom is an inert people; that public discussion is a political duty”. Justice Brandeis went on (at 375f., 1106) to say that, precisely because they believed in “the power of reason as applied through public discussion”, those who had won independence had “eschewed silence coerced by law—the argument of force in its worst form”.

65 Only rarely can land be regarded as physically non-excludable. Much of the law of adverse possession of realty rests on the contrary assumption. It is, however, worth observing that there may be extreme circumstances in which the sheer size of a particular land holding (and its consequent indefensibility) may begin to impact upon the degree to which that land can be “propertised”. See, for instance, the extremely interesting suggestion of Deane J. in Hackshaw v. Shaw (1984) 155 C.L.R. 614, 659, that conventional notions of trespass may not be strictly applicable to isolated stations situated within the vast expanses of the Australian outback.

66 “No man can set his foot upon my ground without my licence” (Entick v. Carrington (1765) 19 Howell's State Trials 1029, 1066 per Lord Camden C.J. See generally Gray, Kevin, Elements of Land Law (London 1987), p. 538.Google Scholar) See also Forbes v. New South Wales Trotting Club (1979) 143 C.L.R. 242, 249, 259 per Barwick C.J., 281 per Aickin J.; Comité pour la République du Canada—Committee for the Commonwealth of Canada v. The Queen in Right of Canada (1987) 36 D.L.R. (4th) 501, 508 per Pratte J. (dissenting); Russo v. Ontario Jockey Club (1988) 46 D.L.R. (4th) 359, 361.

67 See e.g. Russo v. Ontario Jockey Club (1988) 46 D.L.R. (4th) 359, 364; Austin v. Rescon Construction (1984) Ltd. (1989) 57 D.L.R. (4th) 591, 593.

68 Heatley v. Tasmanian Racing and Gaming Commission (1977) 14 A.L.R. 519, 538; Russo v. Ontario Jockey Club (1988) 46 D.L.R. (4th) 359, 362.

69 (1845) 13 M. & W. 838, 855,153 E.R. 351, 359.

70 For acceptance of the Wood v. Leadbitter doctrine in the United States, see Minnesota Valley Gun Club v. Northline Corp. 290 N.W. 222, 224 (1940); Nemmer Furniture Co. v. Select Furniture Co., 208 N.Y.S.2d 51, 56 (1960); Feldt v. Marriott Corp, 322 A.2d 913, 916 (1974); Van Camp v. Menominee Enterprises, Inc., 228 N.W.2d 664,670 (1975); Union Travel Associates, Inc. v. International Associates Inc., 401 A.2d 105, 107f. (1979); Bickett v. Buffalo Bills, Inc., 472 N.Y.S.2d 245, 247 (1983). See generally Bruce, J.W. and Ely, J.W., The Law of Easements and Licences in Land (Boston 1988), §10.06[l].Google Scholar

71 (1985) 159 C.L.R. 70.

72 Pitjantjatjara Land Rights Act 1981, s.15.

73 (1985) 159 C.L.R. 70, 117.

74 (1985) 159 C.L.R. 70, 136.

75 Pitjantjatjara Land Rights Act 1981, s.18.

76 Pitjantjatjara Land Rights Act 1981, S.19(l).

77 See Racial Discrimination Act 1975 (Cth), ss.9, 10.

78 See International Convention on the Elimination of All Forms of Racial Discrimination, Art.5(d)(ii).

79 (1985) 159 C.L.R. 70, 104 per Mason J., HOf. per Wilson J., 127f., 132 per Brennan J.,145ff. per Deane J.

80 Racial Discrimination Act 1975 (Cth), s. 8(1); International Convention on the Elimination of All Forms of Racial Discrimination, Art. 1(4).

81 It is significant that foremost amongst these interests was the need to preserve a number of sacred sites inviolate from visual intrusion by unauthorised persons. Brennan J. recognised, for instance, that the apparent impairment of individual rights imposed by the legislation could be justified by the “need to retain close control on entry at times of Aboriginal ceremonies” ((1985) 159 C.L.R. 70, 134). For reference to the importance in aboriginal cultures of preserving the integrity of sacred or ceremonial locations—particularly from the eyes of the uninitiated, see Berndt, R.M. and Berndt, C.H., The World of the First Australians, 5th ed. (Canberra 1988), p. 344;Google ScholarBerndt, R.M., “Traditional Concepts of Aboriginal Land” in Berndt, R.M. (ed.), Aboriginal Sites, Rights and Resource Development (Perth 1982), p. 7;Google ScholarBieraoff, D., “Safe and Dangerous Places” in Hiatt, L.R. (ed.), Australian Aboriginal Concepts (Canberra 1978), p. 93ff.Google Scholar

82 (1985) 159 C.L.R. 70, 150 per Deane J.

83 (1985) 159 C.L.R. 70, 103f.

84 (1985) 159 C.L.R. 70, 152.

85 Brennan J. likewise observed that the legislation precluded “perhaps harshly” an individual Pitjantjatjara from inviting a non-Pitjantjatjara on to the land ((1985) 159 C.L.R. 70, 117), but thought this a case where individual rights could legitimately be foregone in favour of group rights ((1985) 159 C.L.R. 70,133f.).

86 (1985) 159 C.L.R. 70, 152. A similar sense of disquiet was expressed by Gibbs C.J., who recognised that if the vesting of ownership of lands in a corporation were enough to justify the exclusion of persons from those lands on the ground of race, “it would be easy to introduce a system of apartheid” ((1985) 159 C.L.R. 70, 86).

87 See also (1985) 159 C.L.R. 70,86 per Gibbs C.J.

88 (1979) 143 C.L.R. 242, 275. See B. Edgeworth, “Post Property? A Postmodern Conception of Private Property” (1988) 11 U.N.S.W.L.J. 87, 95f.

89 (1985) 159 C.L.R. 70, 107.

90 Thus the rigour of the doctrine in Wood v. Leadbitter has now been tempered significantly in many jurisdictions across the common law world. The doctrine has, for instance, been modified in England by the availability of equitable intervention to restrain breaches of contract (see Gray, Kevin, Elements of Land Law (London 1987), p. 545ff.). A similar development has occurred in some jurisdictions in the United States (see e.g. Ethan's Glen Community Association v. Kearney, 667 S.W.2d 287, 290f. (1984)). Other courts in the United States have simply accepted that Wood v. Leadbitter is now a curiosity of legal history, having been overtaken by the steady evolution of the common law (see e.g. Uston v. Resorts International Hotels Inc., 445 A.2d 370 (1982), 374 per Pashman J.).Google Scholar

91 (1976) 62 D.L.R. (3d) 68, 73f.

92 The issue has not been uncontroversial (see e.g. Hudgens v. N.L.R.B., 424 U.S. 507, 47 L.Ed.2d 196 (1976)). However, a number of courts in the United States have now upheld the right of reasonable access to privately owned premises (such as shopping centres) for purposes of peaceful political communication and solicitation. See Robins v. Pruneyard Shopping Center, 592 P.2d 341 (1979), affd. sub. nom. Pruneyard Shopping Center v. Robins, 447 U.S. 74, 64 L.Ed.2d 741 (1980); Batchelder v. Allied Stores International, Inc., 445 N.E.2d 590 (1983); Lloyd Corpn. Ltd. v. Whiffen, 750 P.2d 1157 (1988).

93 445 A.2d 370 (1982).

94 The premises in Uston comprised a casino. Compare Russo v. Ontario Jockey Club (1988) 46 D.L.R. (4th) 359.

95 445 A.2d 370, 375 (1982). See also Marsh v. Alabama, 326 U.S. 501, 90 L.ed. 265 (1946). Here the US Supreme Court ruled that the residents of a municipality were not to be denied freedom of press and religion simply because a private company held legal title to the entire town. In the words of Justice Black, “[t]he more an owner, for his advantage, opens up his property for use by the public in general, the more do his rights become circumscribed by the statutory and constitutional rights of those who use it” (at 506, 268). Accordingly a Jehovah's Witness who distributed religious literature on the “public” sidewalk against the private owner's wishes could not be convicted of a criminal trespass. See also Mosher v. Cook United, Inc., 405 N.E.2d 720 (1980), 722 per Hofstetter J. (dissenting).

96 Exactly the same issue may arise in relation to premises owned by the government, thereby blurring yet further the distinction between public and private. For example, in Comité pour la Ripublique du Canada-Committee for the Commonwealth of Canada v. The Queen in Right of Canada (1986) 25 D.L.R. (4th) 460, 466, the plaintiffs had been prevented from disseminating their political ideas by carrying placards and distributing pamphlets in the public terminal concourse of an airport. They successfully sued for a declaration that their fundamental freedoms under the Canadian Charter of Rights and Freedoms had been infringed. At first instance Dub6 J. thought it “plain and obvious” that public terminal concourses were “indeed ‘modern crossroads’ for the intercourse of the travelling public”, and that freedom of expression and communication ought not in principle to be abridged in such public forums. The Federal Court of Appeal upheld the substance of Dubé J.'s ruling ((1987) 36 D.L.R. (4th) 501), albeit in less extensive and rhetorical terms. Hugessen J. emphasised ((1987) 36 D.L.R. (4th) 501, 509f.) that the government owns its property “not for its own benefit but for that of the citizen” and that the government therefore has an obligation to “devote certain property for certain purposes and to manage ‘its’ property for the public good”.Google Scholar

97 423 A.2d 615 (1980).

98 See also Commonwealth v. Tate, 432 A.2d 1382 (1981).

99 423 A.2d 615, 629.

1 423 A.2d 615, 630.

2 423 A.2d 615, 632f. That the availability of private access may be coloured by public purpose is also evident, for instance, in more recent suggestions that a police officer, if acting “out of caprice or malice”, may not be able effectively to terminate the licence which a member of the public enjoys to enter a police station for the purpose of lawful enquiry or business. As J., Nathan observed in Bethune v. Heffernan [1986] V.R. 417, 423f., “public policy requires unfettered access to public places especially police stations and the authority of police persons to exclude must be exercised with that policy in mind”. See also Comité pour la République du Canada-Committee for the Commonwealth of Canada v. The Queen in Right of Canada (1987) 36 D.L.R. (4th) 501, 510 per Hugessen J.Google Scholar

3 [1965] A.C. 1175, 1247G-1248A.

4 This proposition has been adopted and applied in the High Court of Australia (R. v. Toohey, ex pane Meneling Station Pty. Ltd. (1982) 158 C.L.R. 327, 342f. per Mason J.) See also Sonenco (No 77) Pty. Ltd. v. Silvia (1989) 89 A.L.R. 437, 457 per Ryan and Gummow JJ.

5 See Gray, Kevin, Elements of Land Law (London 1987), p. 555ff. In so far as proprietary character is made to depend upon some supposed quality of “permanence” or “stability”, the definition of “property” is rendered patently self-fulfilling. Quite often—as for instance in National Provincial Bank Ltd. v. Ainsworth [1965] A.C. 1175—the reason for asking whether a particular right is proprietary is precisely in order to determine whether the right is capable of binding third parties and thereby attaining just such a quality of “permanence” and “stability”. It is radical and obscurantist nonsense to formulate a test of proprietary character in this way.Google Scholar

6 For criticism of this kind of “circuity”, see Colbeam Palmer Ltd. v. Stock Affiliates Pty. Ltd. (1968) 122 C.L.R. 25, 34per Windeyer J.

7 See Two Treatises of Government, 2nd critical ed. by Laslett, P. (Cambridge 1967)Google Scholar, The Second Treatise, s.28 (p. 306).Google Scholar

8 “Property-According to Locke” 41 Yale L.J. 864, 871 (1932).

9 Blackstone himself came close (but was still not quite on target) when he described the “right of property” as “that sole or despotic dominion which one man claims and exercises over the external things of the world, in total exclusion of the right of any other individual in the universe” (Bl. Comm., vol. II, p. 2). In similar vein the Supreme Court of the United States has observed that the right to exclude is “universally held to be a fundamental element of the property right” (Kaiser Aetna v. United States, 444 U.S. 164, 179f., 62 L.Ed.2d 332, 346 (1979) per Rehnquist J.). See also International News Service v. Associated Press, 248 U.S. 215 (1918), 250,63 L.ed. 211, 225 per Brandeis J.Google Scholar

10 Thus, according to Felix Cohen, “[p]rivate property is a relationship among human beings such that the so-called owner can exclude others from certain activities or permit others to engage in those activities and in either case secure the assistance of the law in carrying out his decision”. Cohen also defined private property in terms of “exclusions which individuals can impose or withdraw with state backing against the rest of society”. See F.S. Cohen, “Dialogue on Private Property” 9 Rutgers L. Rev. 357, 373, 378 (1954–55).

11 The relativity of “property” is not merely a matter of relativity to time and place. The range of resources in respect of which “property” may be asserted is variable with the advance of modern technology. It can be questioned, for instance, whether the technology of weather modification has the effect of propertising clouds and rainfall. See “Who Owns the Clouds?” 1 Stanford L. Rev. 43 (1948); Fischer, W.H., “Weather Modification and the Right of Capture8 Natural Resources Lawyer 639 (1975).Google Scholar

12 Such is the case, for example, with certain types of intellectual property (e.g. patents and copyrights), which in most jurisdictions are subject to some form of sunset clause (see Hughes, J., “The Philosophy of Intellectual Property” 77 Georgetown L.J. 287, 323ff. (19881989). However, the mere fact that “property” in a resource may be relative over time is not inconsistent with the proposition that “property” implies some element of permanence in the sense of irrevocability. X cannot claim to have “property” in a particular resource if his rights are subject to immediate, arbitrary and unconsented termination by Y (see e.g. R v. Toohey, ex pane Meneling Station Pty. Ltd. (1982) 158 C.L.R. 327). On the contrary, in such circumstances, it is Y who has “property” in the resource by virtue of his ability to control the access of X to the relevant benefits.Google Scholar

13 The propositions advanced in this paragraph are, of course, most classically demonstrated in the law of adverse possession of land (see Gray, , op. cit., pp. 741f., 751). At common law, partly in view of some perception that ultimately land is a morally non-excludable resource, it is always said that title to land is relative (see Asher v. Whitlock (1865) L.R. 1 Q.B. 1, 5). Suppose that A, who holds the documentary (or “paper”) title to land in fee simple, is wrongfully dispossessed by B. After four years of adverse possession B is himself dispossessed by C. Failing a successful action for recovery, A retains “property” in the land—but only until the expiration of 12 years from the date of A's dispossession by B (Limitation Act 1980, s. 15(1)). At this point A's paper title is statutorily “extinguished” (Limitation Act 1980, s. 17), and C has a “property” in the land which is opposable against A but not, of course, as against B, who still has four more years before his right of recovery from C becomes statute-barred. Even during the relevant adverse possession period each squatter has a “property” in the land in the form of a tortious fee simple (see Wheeler v. Baldwin (1934) 52 C.L.R. 609, 632 per Dixon C.J.; Newington v. Windeyer (1985) 3 N.S.W.L.R. 555, 563E). It thus becomes entirely possible that a number of persons may accurately assert independent claims to have “property” simultaneously in the same resource.Google Scholar

14 Along this continuum there is often, for instance, a subtle gradation between “absolute property” and “qualified property” in a disputed resource. This distinction between “absolute” and “qualified” property has long been recognised at common law in relation to such resources as wild animals (see Bl. Comm., vol. II, pp. 391, 395Google Scholar (ante, note 26)). Even the landowner's “qualified property” in wild animals persists only so long as he “can keep them in sight” and has “power to pursue them” (see Gray, , op. cit., p. 34).Google Scholar See also Pierson v. Post, 3 Cai. R. 175 (N.Y. Sup. Ct. 1805), cited by CM. Rose, “Possession as the Origin of Property” 52 U. Chi. L. Rev. 73, 76ff. (1985–86). The notion of “qualified property” may have a contemporary—and wholly unforeseen—application to that modern equivalent of the fugitive swarm of bees, the disputed commercial or corporate opportunity.

15 277 A.2d 369, 372(1971).

16 In State v. Shack the Supreme Court of New Jersey reversed the trespass convictions of an attorney and a social services worker who, in defiance of the wishes of the landowner, had entered his property in order to visit migrant farmworkers residing there. Weintraub C.J. led the Supreme Court in holding that “the employer may not deny the worker his privacy or interfere with his opportunity to live with dignity and to enjoy associations customary among our citizens. These rights are too fundamental to be denied on the basis of an interest in real property and too fragile to be left to the unequal bargaining strength of the parties” (277 A.2d 369, 374).

17 277 A.2d 369,373. Weintraub C.J. went on to cite Professor Powell in support of the proposition that “[a]s one looks back along the historic road traversed by the law of land in England and America, one sees a change from the viewpoint that he who owns may do as he pleases with what he owns, to a position which hesitatingly embodies an ingredient of stewardship; which grudgingly, but steadily, broadens the recognised scope of social interests in the utilisation of things” (5 Powell, , Real Property (Rohan 1970), §746, p. 494).Google Scholar

18 See Yannacone, V.J., “Property and Stewardship—Private Property plus Social Interest equals Social Property23 S. Dak. L. Rev. 71 (1978).Google Scholar

19 See Babcock, R.F. and Feurer, D.A., “Land as a Commodity ‘affected with a Public Interest’” 52 Wash. L. Rev. 289 (19761977).Google Scholar

20 See e.g. McOwan, R., “Access in ScotlandClimber and Hill Walker, vol. XXIX, no. 6 (06 1990), p. 46;Google ScholarWright, W., “Access: The Credibility Question” Climber and Hill Walker, vol. XXIX, no. 7 (06 1990), p. 40;Google ScholarWorries over moorland access”, 91 High Magazine (06 1990), p. 13.Google Scholar

21 That rights of consumption can, in rare instances, be the subject of “property” appears clearly from the fact that even today the Crown retains a prerogative right in respect of royal fish (whale and sturgeon) and wild unmarked white swans swimming in open and common rivers (see Case of Swans (1592) 7 Co. Rep. 15b, 16a, 77 E.R. 435, 436). Rights of consumption are confined to the Crown and to those to whom the Crown has granted permission, whether by way of franchise, swan mark or otherwise (see Halsbury's Laws of England, 4th ed., vol. 8, pp. 904f. (paras. 1519f.)).Google Scholar

22 See e.g. Moore v. Regents of University of California, 249 Cal. Rptr. 494, 504ff. (1988). Here a medical research team had removed the plaintiff's diseased spleen and had, without his knowledge or consent, developed from it a cell-line which was capable of generating pharmaceutical products of enormous therapeutic and commercial value. (The market potential of the products derived from the disputed cell-line was estimated to amount to U.S. $3 billion by 1990.) A Californian Court of Appeal held that the plaintiff had a sufficient property right in “his” body tissue to enable him to maintain a successful action in conversion. See also “Toward a Right of Commerciality: Recognizing Property Rights in the Commercial Value of Human Tissue” 34 U.C.L.A. L. Rev. 207 (1986–87); J. Lavoie, “Ownership of Human Tissue” 75 Virginia L. Rev. 1363 (1989); N.E. Field, “Evolving Conceptualizations of Property: A Proposal to De-Commercialize the Value of Fetal Tissue” 99 Yale L.J. 169 (1989–90).

23 Jeremy Bentham recognised this long ago. Bentham pointed out that “in common speech in the phrase ‘the object of a man's property’, the words ‘the object of are commonly left out; and by an ellipsis, which, violent as it is, is now become more familiar than the phrase at length, they have made that part of it which consists of the words ‘a man's property’ perform the office of the whole”. See An Introduction to the Principles of Morals and Legislation, ed. by Harrison, W. (Oxford 1948), p. 337, note 1 (Chapter XVI, section 26).Google Scholar

24 The phrase was originally used by Pollock and Maitland, The History of English Law, 2nd ed. (London 1968), vol. 2, p. 125.Google Scholar See also Maitland, F.W.. Collected Papers, ed. by H.A.L. Fisher (Cambridge, 1911), vol. III, p. 343.Google Scholar

25 The employment context demonstrates that two persons can both claim “property” in the same resource: here the resource of labour-power generates two sets of choses in action.

26 See Somerset v. Stewart (1772) Lofft. 1,19, 98 E.R. 499, 510 per Lord Mansfield (“The state of slavery is of such a nature, that it is incapable of being introduced on any reasons, moral or political … it's so odious, that nothing can be suffered to support it … therefore the black must be discharged”).

27 E.I. duPont de Nemours Powder Co. v. Masland, 244 U.S. 100,102, 61 L.ed. 1016, 1019 (1917).

28 (1990) 95 A.L.R. 87.

29 Even the American courts have now distanced themselves from Justice Holmes's apparent denial of the “property” rationale underlying the legal protection of trade marks and trade secrets (Van Products Co. v. General Welding & Fabricating Co., 213 A.2d 769, 780 (1965); Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1004, 81 L.Ed.2d 815, 833, n.9 (1984)). See S.J. Soltysinski, “Are Trade Secrets Property?” (1986) 17 I.I.C. 331, 335ff.

30 (1990) 95 A.L.R. 87,135. See also S. Ricketson, “Confidential Information—A New Proprietary Interest?” (1977–78) 11 Melbourne U.L.R. 223, 289.

31 See e.g. Moorgate Tobacco Co. Ltd. v. Philip Morris Ltd. [No. 2) (1984) 156 C.L.R. 414, 438 perDeane J.

32 (1990) 95 A.L.R. 87, 136. This approach is consistent with the view, frequently expressed long ago in the High Court of Australia by Isaacs J., that “equitable property is commensurate with equitable relief (Hoystead v. Federal Commissioner of Taxation (1920) 27 C.L.R. 400, 423).Google Scholar See also Glenn v. Federal Commissioner of Land Tax (1915) 20 C.L.R. 490, 503;Google ScholarTrustees, Executors and Agency Co. Ltd. v. Acting Federal Commissioner of Taxation (1917) 23 C.L.R. 576, 583.Google Scholar

33 (1990) 95 A.L.R. 87, 136. See Constitution of the Commonwealth of Australia, s. 51(xxxi). Compare Ruckelshaus v. Monsanto Co., 467 U.S. 986, 81 L.Ed.2d 815 (1984).

34 The only point at which attribution of property status to X's rights in a resource becomes legally significant arises where the operation of some legal rule is restrictively limited by reference to “property”. Whether X's rights constitute “property” may help to determine, for example, whether a given resource is properly the subject of security, attachment or taxation, or can be the res of a trust, or can be misappropriated or pass to a trustee in bankruptcy or be divided as a matrimonial asset in the event of divorce. In resolving such questions it profits little to ask whether X's rights are the sort of rights which characteristically have the legal consequence in issue, but it is enormously beneficial to direct attention to the criterion of excludability. Nowhere is the utility of this perspective more readily demonstrated than in relation to the protection of trade secrets. Increasingly the courts declare that in this area “the starting point … is not whether there was a confidential relationship, but whether, in fact, there was a trade secret to be misappropriated” (see Van Products Co. v. General Welding & Fabricating Co., 213 A.2d 769, 780 (1965)).Google Scholar

35 (1848) 2 Ph. 774, 41 E.R. 1143.

36 See A.W.B. Simpson, A History of the Land Law, 2nd ed. (Oxford 1986), p. 74ff.Google Scholar

37 See Gray, Kevin, Elements of Land Law (London 1987), p. 550ff.Google Scholar

38 For the view that property is “'dead’ as a result of having been worked to death in indiscriminate legal application”, see Cotterrell, R., “The Law of Property and Legal Theory”, in Twining, W. (ed.), Legal Theory and Common Law (Oxford 1986), p. 87.Google Scholar

39 See e.g. J. Effron, “The Contractualisation of the Law of Leasehold: Pitfalls and Opportunities” (1988) 14 Monash U.L.R. 83. On the ambiguous status of the lease, see further Progressive Mailing House Pty. Ltd. v. Tabali Pty. Ltd. (1985) 157 C.L.R. 17, 51f. per Deane J.

40 See e.g. Hospital Products Ltd. v. United States Surgical Corporation (1984) 156 C.L.R. 41, 125 per Deane J.

41 See e.g. LAC Minerals Ltd. v. International Corona Resources Ltd. (1989) 61 D.L.R. (4th) 14, 17 per Wilson J.

42 See Crommelin, Michael, “Economic analysis of property”, in Galligan, D.J. (ed). Essays in Legal Theory (Melbourne 1984), p. 78.Google Scholar

43 See e.g. M.R. Cohen, “Property and Sovereignty” 13 Cornell L.Q. 8 (1927).

44 There may in the present context be more than purely figurative significance in this harnessing of a political metaphor. If there is one political phenomenon which mirrors the elusive and ultimately insubstantial quality of the individual claim to rights in private property, it is the (equally individual) claim to rightful authority in public government. The concept and meaning of government are vulnerable to exactly the same deep scepticism—often phrased in eerily similar terms—which may be directed at the institution of private property. Most of the conclusions drawn in this paper as to the nature of private property are applicable, with minimal amendments, to its public sector analogue, the institution of government. (To acknowledge the linkage and the conceptual fragility of these two notions is, sadly, no guarantee of impeccable anarchist credentials. Both “property” and “government”—however spectral their deep meaning—have a functional utility which is vital to the everyday ordering of the world in which we live.)

45 See Macpherson, C.B., “Capitalism and the Changing Concept of Property”, in Kamenka, E. and Neale, R.S. (eds.), Feudalism, Capitalism and Beyond (Canberra 1975), p. 116ff.Google Scholar

46 See Bentham, J., Anarchical Fallacies; being an Examination of the Declarations of Rights issued during the French Revolution, in The Collected Works of Jeremy Bentham, ed. by Bowring, J. (Edinburgh 1843), vol. II, p. 501.Google Scholar

47 In searching out the roots of property jurisprudence there is, of course, a venerable precedent for recourse to the opening chapters of the Book of Genesis. Compare Blackstone's location of the origins of property in the creation story (Bl. Comm., vol. II, p. 2).Google Scholar See also Clark, L.M.G., “Women and John Locke; or, Who Owns the Apples in the Garden of Eden?” (1977) 7 Canadian Journal of Philosophy 699.CrossRefGoogle Scholar

48 Genesis, iii: 6.Google Scholar

49 Regardless of conceptual content, reference to “property” confers of course a certain mechanical utility in facilitating the operation of those legal rules which are premised on the presence or availability of “property” (ante, note 34). The usefulness of the “property” reference—more or less as a form of legal shorthand—does not, however, promote any clearer understanding of the concept itself.

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