Nonuse and Easements: Creating a Pliability Regime of Private Eminent Domain

Abstract

Nonuse and Easements: Creating a Pliability Regime of Private Eminent Domain analyzes nonused easements based on the entitlement-protections of property standards and liability rules created by Guido Calabresi and Douglas Melamed in their landmark work, Property Rules, Liability Rules, and Inalienability: One View of the Cathedral. The article takes a comparative approach in its evaluation by studying both the common law and civil law rules pertaining to nonused easements. The common law applies a classic property standard that protects the holder of the easement from the nonconsensual termination of his easement regardless of whether the easement is ever used; the civil law utilizes a quasi-property standard that automatically extinguishes an easement after a statutorily-prescribed period of nonuse. This article argues that while such property standards may be appropriate for easements in use, the application of property rules to nonused easements if inefficient and leads to the wasteful use of real property. The article then develops a system whereby the nonuse of an easement acts as a triggering event that allows liability rules - as opposed to property standards - to govern easements. This system is referred to in the article as private eminent domain based on nonuse.

The article details the system of private eminent domain based on nonuse, the benefits and shortfalls of such a system, and how the system could be implemented.

Keywords: Entitlements, Property Standards, Law and Economics, Liability Rules, Easements, Eminent Domain, Efficiency, Comparative Law, Civil Law, Real Property