A Magazine About Food, Art & Exchange In Midtown Kingston, Published By The Hudson Valley Current.

Who Owns That? Baby Steps Toward a Sharing Economy of Land Use

Land. As the saying goes, they aren’t making any more of it. There are around 57,308,738 square miles of land on the planet, over half of which (57%) is uninhabitable desert and mountain terrain. That leaves 24,642,757 square miles or 15.77 billion acres where around 8 billion humans can live. So how did we manage to get into the current mess, in which over 1.6 billion people lack adequate housing and about 150 million are outright homeless?

Territoriality—a sense of one’s own home turf—is found in most life forms; it seems to have its roots in the ancient reptilian brain. Tribal societies had a strong sense of “their” territory, but that sense only included occupying land and chasing off outsiders—there was no such thing as buying, selling, or inheriting. All members of the tribe had equal access to the territory, and the relationship had an entirely different tone. “They frequently spoke of the land as their parent or as a sacred being, on whom they were dependent and to whom they owed loyalty and service,” writes Robert Gilman in “The Idea of Owning Land,” published by the Context Institute (context.org).

As centralized leadership arose, with kings claiming inside connections to the deity or deities of the moment, it began to be accepted that the deity in question—and, by extension, the king—owned the land. Control of it became a result of one’s connection to said monarch. Land ownership quickly became a way to quantify power—leading to the two primary models causing mischief today, government ownership and private ownership.

In a sense, the kings still own the whole enchilada… Feudal sovereigns would allot land to nobility, who in turn allotted fiefdoms to their own underlings in exchange for farming it or perhaps raising an armed battalion from among their underlings, should the need arise. Our common-law concepts of land ownership evolved from the concept of sovereign allodial (unconditional) title, the right of the king to control the land—and if you think this is quaint, try going up against the government by not paying real estate taxes or battling an eminent domain claim.

Private ownership evolved as nobles demanded more rights and became the basis for what common law calls “fee simple” ownership. A moment’s thought about the aforementioned property taxes, not to mention easements, water, and mineral rights, makes it clear that “fee simple” is not really simple at all. What a landowner actually owns are certain rights to the use of the land, always subject to the government’s right of eminent domain.

Wilson notes that ownership as a collection of rights rather than an absolute— opens the way to ways of looking at land ownership that transcend the zero-sum battle between private and public ownership or between individuals, looking instead at the various rights needed by various users as separable, and points to land trusts as “the best developed alternative legal form” by which this is done.

The work of land trusts is evident throughout the Catskills and Hudson Valley, with Mohonk Preserve, Scenic Hudson and a long list of smaller nonprofits holding rights to many thousands of acres. Not all land trust holdings are to be kept forever wild. The Kingston Land Trust, for example, runs a land matching program to connect those who own or manage property with people looking for property to use in beneficial, sustainable ways, has helped create the Kingston Greenline trail network, and is organizing a Kingston Community Land Trust that will work to develop “forever affordable” homes by separating land ownership from homeownership via tenant-friendly, secure long term leasing arrangements.

New York State, with a vast upstate watershed serving a huge downstate population, has long taken an active role in land stewardship and preservation. The Catskill and Adirondack Forest Preserves were created in 1885, mandating that all land currently owned or later acquired by state government in three Catskills and eleven Adirondack counties be “forever wild;” and in 1904 the state decreed Catskill Park, applying that principal to 700,000 acres lying within a “blue line,” encompassing parts of Delaware, Greene, Sullivan, and Ulster counties. As of 2005, the state owned 41% of that land; about 50,000 permanent residents occupy the other 59%.

Catskill Park and other regulated lands like the Department of Environmental Conservation (DEC) watershed areas have evolved through a process of push and pull, give and take to allow preservation, public use, and private ownership to coexist. An understanding of how interdependent these uses are is evolving rapidly with modern environmental science. (The DEC’s watershed page is now headlined “We All Live in a Watershed” and features a basic guide to protection for landowners.)

Communal land tenure differs from fee simple ownership by allotting rights equally to all members of a given group. It’s not a widely recognized concept in the US; where collective ownership is allowed only for the indigenous; in other parts of the world, recognition of communal tenure has developed in different forms, allowing communities varying degrees of legal protection. Globally, recognition of collective tenure is on the rise.

Locally, anyone who has ever taken part in or observed a Not in My Backyard (NIMBY) battle can attest that the question of who can do what on which parcel of land is fraught with financially, legally, and emotionally combustible issues. Sharing feels foreign within our adversarial framework. Good work is being done by organizations such as the Sustainable Economies Law Center, devoted to “cultivating a new legal landscape that supports community resilience and grassroots economic empowerment.”

Changing the current situation, in which places to live and grow food are understood as privileges rather than rights held in common, is a massive undertaking. But nothing about this current situation is chiseled in stone, unless you believe in the divine right of pharaohs and kings. That has fallen out of favor, as has clear cutting; perhaps one day corporate exploitation of property rights will be just as quaint—if people of good will unite and raise their voices in favor of an older, deeper understanding.