Vol. 1 No.
2

PARKS, PROPERTY RIGHTS,
AND THE POSSIBILITIES OF THE PRIVATE
LAW

James P. Beckwith, Jr.

It is commonly assumed that private property rights are incompatible
with the preservation of such environmental and recreational amenities
as our national parks and that governmental ownership is therefore
required. This paper takes a different approach and argues that private
alternatives to public ownership of parks are legally feasible and are
desirable on both efficiency and ethical grounds.

Although this paper is concerned with legal issues, every effort has
been made to make it accessible to a general audience. Even so, the
discussion should interest lawyers, both practitioners and academicians.
Indeed, it is vitally important that it do so. Because of their
preoccupation with public solutions, lawyers have contributed to the
decline of public discourse on law and social policy. Often led by
professional self-interest, theirs is an enthusiasm for complex public
solutions that resort to law and for traditional distinctions of legal
scholarship that often obscure rather than illuminate. As Friedrich
Hayek, perhaps our premier scholar of spontaneous common-law
adjudication, admonishes us, the preservation of a free society requires
more than the simplistic espousal of abstract principles.1 It requires
careful thought about specific legal arrangements that will foster that
delicate balance between deliberation and spontaneity that lies at the
heart of a free legal order.2

The organizing principle of this paper is one of ascending
radicalism: from reform through volunteerism and privatization of
services to the outright abolition of public ownership and the transfer
of the parks to private parties. The transition to a freer legal order
is not costless, however, and a prescription for change must be tempered
with a sensitivity to the capacity for change of the existing legal
order.

Governmental ownership of parkland is a relatively recent phenomenon.
Prior to the late nineteenth century, the principal objective of
government had been to sell and later give away as much of the public
lands as possible.3 Toward the
turn of the century, however, a new sense of scarcity arose because of
the perceived depletion of natural resources.4 Theodore
Roosevelt, for example, enthusiastically embraced the views of early
advocates of a national park system, including Gifford Pinchot and
Gilbert Grosvenor.5 The
National Park Service was subsequently created in 1916, although some
parks, such as Yellowstone, had been authorized by Congress as early as
1872. In addition to this new sense of scarcity, the conservation
movement was inspired by the egalitarianism of populism.6 The
Populists demanded that the remaining public lands be withdrawn from the
market and reserved for conservation. Today most parks are publicly
owned. The national park system includes over seventy million acres,7 state parks
account for nearly ten million acres, and country and municipal parks
add approximately one million acres.8

Most governments charge a zero or less-than-equilibrium price for
access to public parks.9
Predictably, with the quantity demanded exceeding the available supply,
a "shortage" develops, and public parks are usually overcrowded.
Overcrowding contributes to deterioration and erosion and, as nonprice
competition for limited space increases, illegal camping.10
Overcrowding and deterioration also encourage the subsidized and crowded
recreationists to demand that existing parks be expanded and new ones
created. Vote-maximizing politicians will thus have an incentive to
expand further the scope of subsidized recreation, while those taxpayers
paying its diffuse costs will have little incentive to resist its being
given. To be sure, other allocative criteria, such as rationing by
reservation, lottery, or queuing, would generate different incentives
for benefited client groups.11 It
remains, however, that suboptimal pricing is the fundamental cause of
overcrowding.

Not only are public parks overcrowded, they do not distribute their
benefits randomly. With their high costs of access, remote wilderness
parks present the most extreme examples of a subsidy for the affluent.12 Of
course, not all public parks are inaccessible. Access to public parks in
urban areas is much less costly for most people, and the relatively
inexpensive recreational pursuits offered there require few
accoutrements. A pair of tennis shoes and a frisbee are much less of an
impediment to recreation than mobile recreation vehicles and the L. L.
Bean catalog. As a result, city parks are more likely to have a
lower-income client group than are wilderness parks. Furthermore, some
nonrecreational uses of city parks (e.g., commerce in drugs or provision
of shelter) can also be attributed to suboptimal pricing for entry. In
light of these shortcomings resulting from the absence of private
property rights, privatization of the parks offers a means of
much-needed reform.

Parks and the Independent Sector

There is no presumption that those who work in publicly owned parks
must be public employees. Accordingly, the most tentative step in the
privatization of public parks would be to increase the recruitment of
volunteers to help manage the parks, particularly in the more accessible
municipal parks. This practice is already widespread.13 Indeed,
volunteers have long been a vital part of public recreation in America,
continuing the tradition of volunteerism and free association so ably
described by Alexis de Tocqueville.14 They form
but another example of the independent sector, neither governmental nor
commercial, that is grounded in voluntary, private action.15 The
primary benefit of volunteerism is, of course, the provision of labor at
a zero price to the agency. No tax revenues need to be collected to pay
for volunteered services. Furthermore, volunteers have less incentive to
engage in the kind of political entrepreneurship so characteristic of
bureaucracies.

There is no significant legal impediment to volunteerism. One should,
however, expect opposition from park personnel and their unions should
it become apparent that volunteers are precluding the hiring or
retention of salaried employees. Few people welcome competition of any
sort, especially that charging a zero price.

Volunteerism, however, must always be examined in the context of the
incentives generated by the political process. Political entrepreneurs
in quest of votes from rationally ignorant voters tend to favor
inflationary policies with clearly recognizable benefits and partially
concealed costs.16 In their
early stages, inflation and "bracket creep" will very likely lead to a
lessening of volunteerism within the independent sector because there is
an incentive created for individuals to work longer hours and for both
spouses to work in order to maintain their standard of living. As the
amount of time available for volunteer activities decreases, there will
be fewer volunteers available to help with recreational programs in the
public parks.

In the short run, in the face of inflation and higher taxes, the
incentive to work is still sufficiently strong that the attempt to
maintain a standard of living would lead to the atrophy of volunteerism;
however, should marginal tax rates rise further, the work incentive may
be largely destroyed. As a result, the consumption of recreation may
become widespread, as in contemporary Sweden, thereby enlarging the
recreation constituency. Because of lessened incentives to maintain
taxable income, this induced consumption of idleness could conceivably
lead to a resurgence of volunteerism, albeit at a very high cost to
societal productivity. Recreation and volunteerism grounded in
prosperity-generated leisure is far preferable to that inspired by the
futility of working.

Governmental expansion is not inevitable, and increased taxation
carries with it the risk of taxpayer rebellion. To be sure, given the
concentrated benefits and diffuse costs of governmental regulation,17 it is not
surprising that political entrepreneurs give voter coalitions what they
want in return for electoral support. As was shown in California with
the passage of Proposition 13, however, taxation may reach a level where
the heretofore diffuse costs of government become sufficiently
concentrated that the free-rider problems are overcome and the voters
demand a reduction in expenditures. The California experience has had a
dramatic impact on its public parks. With public expenditures for
recreation reduced, park administrators have turned to the private
sector for support and have relied more on the price system through the
privatization of services and user fees. It is to such moderate reforms
that we now turn our attention.

Privatization of Services

At present, many supporting services in the public parks are provided
by governmental agencies. This governmental service monopoly dates from
the Progressive Era, when many national parks were established and the
municipal reform movement was at its height.18 The
monopolized park services are varied but typically include grounds
maintenance and repair, refuse collection, and maintenance of special
recreational facilities, such as tennis courts and swimming pools.
Obviously it is not necessary that governmental agencies provide these
services. Indeed, many private firms provide identical services to their
customers, often at a lower price. In light of the widespread
dissatisfaction with governmental services, privatization is a promising
avenue for reform for the public parks, one that has been demonstrably
successful in recent years.

At the outset, one should have a clear idea of what privatization
means because this term can refer to a variety of strategies.19 For our
purposes, it will be assumed that public ownership of parks will
continue and that privatization entails the contracting out of support
services to private firms operating for profit. By contracting out, the
governmental unit has not shed its responsibilities for providing park
services. It has, rather, by means of traditional contract-law
principles, allocated its tax revenues to a low-bidding private firm
rather than to its own employees.20

If services are contracted out to profit-motivated private firms,
considerable costs savings result.21 Unlike a
governmental bureaucracy, which has little incentive to hold down costs,
competitive private firms are driven to minimize costs in order to
survive and prosper in the marketplace. Public parks can only benefit
from this wider range of potential suppliers and their impetus toward
efficiency. In addition, contracting out obviates the need for
specialized but rarely used services and large initial capital
investments in plant and equipment.22 Not all
persons, however, welcome the advantages of private contracting.
Public-employee labor unions, for example, have bitterly opposed the
contracting out of governmental services.23 Given the
general disinclination of the comparatively inefficient to welcome more
efficient competitors, such opposition is not surprising. Even if
services are contracted out, however, the public parks will remain
partially politicized because the level of services will still be a
political question. On the other hand, relying on private firms reduces
the number of potential political entrepreneurs who might otherwise
pursue coalition profit.

From a procedural standpoint, the privatization of services will have
significant legal consequences. Because governmental units will be
awarding contracts to low-bidding firms, the privatizing agreements will
be subject to the requirements of government contracts generally,
especially those governing the bidding process. Although these
regulatory provisions are complex and apply to all levels of government,
the burdens presumably would not outweigh the efficiency gains to be
made from contracting with competitive private firms. However, any
advocate of privatization of services by contract must deal with the
problem of collusion.

It is well known that governmental buyers are especially vulnerable
to collusive sellers. First and most important, public administrators
have little incentive or reward for economizing by obtaining goods and
services from competitive sellers. Second, so long as sealed bids are
solicited by formal advertisement and opened simultaneously with no
rebidding allowed, the vulnerability of governmental buyers will be
enhanced.24 The
sellers' incentive to collude is strengthened because bidders are given
no chance to undercut each other, and the policing of cheaters who offer
bids lower than the agreed price is simplified because all bids are
usually revealed at the time the low-bidding firm is awarded the
contract.

How might privatized services for the public parks be obtained by a
method of procurement that fosters competition? So long as public
ownership continues, one cannot be overly optimistic about the prospects
for a reduction in governmental vulnerability to collusion. Indeed, the
weak incentives and meager rewards for economizing by public managers
make private ownership all the more compelling. If the parks were
privately owned, their managers would have a very strong incentive to
obtain goods and services from competitive sellers. Such managers would
have every reason to forcefully "put the squeeze" on the seller simply
by informing him of their unwillingness to reveal their best offers from
competing sellers.25

Although private ownership offers the best avenue for undermining the
sellers' collusion, some arguments for reform within the context of
public ownership have been made. One possible approach would require the
opening of all bids simultaneously, revealing only the name of the
low-bidding firm and deferring until later the revelation of its bid.
Meanwhile, the losing firms would be invited to submit further bids in
hopes of undercutting the apparent winner. In order to encourage new
entrants for subsequent projects, along with rivalry among the already
competing firms, the bids of all the losing firms might also be revealed
while the winning low bid was still concealed.26 It has
also been suggested that renegotiation should be mandatory when formal
advertising produces identical low bids from few suppliers.27 With
greater secrecy surrounding the winning bid, the incentives for
dishonesty of governmental procurement officers are increased.
Accordingly, a reward system for the discovery and reduction of
collusion might possibly alter these incentives and encourage a more
competitive bidding system.28 If the
bidding process is reformed while public ownership continues, then the
efficiency gains from the minimization of collusion might possibly
complement the gains stemming from the purchase of supporting park
services from profit-motivated private firms. The surest way to obtain
competitive prices from sellers, however, is to turn the parks over to
private managers.

User Charges

As has been noted, the low cost of visiting parks has led to overuse
and deterioration. Even with continued public ownership of the parks,
this suboptimal pricing is not inevitable. Indeed, if equilibrium prices
were charged for access to the parks or for particular services within
the parks, much could be done to ameliorate present conditions.

With the payment of a user fee, the consumer pays for a service in
much the same way as in the private sector; and in the case of the
public parks, the incentives for park users are drastically altered. In
the absence of user fees, the public parks are financed out of general
tax revenues. Park users thus have an incentive to lobby for increased
appropriations for public parks in the rational expectation that the
bulk of these costs will be borne by the majority of taxpayers who
rarely use the parks. As a result of these incentives, more public
expenditures are made for parks than would otherwise be made. The user
fee internalizes these costs and introduces important economizing
incentives by imposing the cost of the parks directly on the park user.
If the price of recreation is raised, less of it will be demanded by
consumers and overcrowding in the parks will be reduced. In addition,
the payment of user fees is a precise indication of consumer preference
that will generate useful information on just how much people actually
value the competing uses of the parks, and one could expect an increase
in park uses that people are willing to pay for.29 It has
also been suggested that the user fee is a more equitable allocative
device because it eliminates cross-subsidies within a given community or
by one community of nonresidents.30

User fees in public parks (and in privately owned parks, as will be
discussed later) are feasible only if nonusers can be excluded from
users. It is one thing to define property rights in a park;31 it is
quite another to transfer those property rights to fee-paying consumers.
It is essential that property rights in the parks be defined,
transferred, and enforced because it is by the alleged inability to
exclude nonusers that public control and the avoidance of user fees can
be justified, if at all.32

In most national parks and in some municipal parks, entrance by users
is monitored, and very low fees are charged for entry. In most municipal
parks, entry is not monitored, and the cost of entry is zero. This does
not mean that monitoring could not occur. For most parks, particularly
those in wilderness areas and those urban parks with few entrances on
public roads and city streets, the transaction costs of monitoring and
charging for entry are low enough that exclusion of nonusers is
feasible.

To be sure, in a few cases the exclusion of nonusers may not be
feasible because of multiple access. City parks with multiple entrances
on public streets present particularly difficult problems.33 Should
the imposition of user charges for these city parks require the closing
of intersecting streets in order to preclude free riders and reduce the
transaction costs of monitoring entry, one could expect inconvenienced
motorists to join subsidized recreationists in opposition to the
proposal. Similarly, merchants dependent on walk-in patronage attracted
by the suboptimal pricing of nearby public parks would also object.

Although exclusion of nonusers is usually feasible and one is able to
demonstrate the benefits resulting from equilibrium pricing,
market-clearing prices are rarely, if ever, charged for access to public
parks. Why are the prices so low? This suboptimal pricing is in large
part attributable to the incentives of political entrepreneurs to
subsidize voters who consume recreation. Under federal law, for example,
the fees charged for access to the national parks must be "fair and
equitable."34 It is not
surprising to discover that this means that the prices charged are very
low. Any realistic approach to reform must grapple with this strong
sense of entitlement.

Up to now the discussion has focused on reform within a context of
state ownership. It was assumed that the state would retain title to the
land and that reform would be aimed at encouraging prosperity-based
volunteerism, improving the efficiency with which public funds were
expended for supporting services, and enhancing the environment by
rationing access through user fees. While these reforms are certainly
desirable, they do not address the fundamental question of how best to
structure the ownership of the parks in order to preserve their natural
beauty.

Private Ownership Considered

Who should own the public parks? At present the parks belong to "the
people." Although at first glance this is a rhetorically reassuring
notion, it cannot withstand analysis. The public parks "belong" to those
persons who use them, and that is only some of "the people."35 It need
not be this way. The parks may be privately owned as, indeed, many
recreation areas already are. Existing public parks could either be
given away or sold to the highest bidder.36

What would be the consequences of such a transfer of title?37 At the
outset one should recognize that privately owned parks charging
admission fees face the same problem of exclusion of nonusers as would a
public park. Similarly, however, the transaction costs of excluding
nonusers are usually low enough that private admission fees are
feasible. Assuming that one successfully crosses the transaction-cost
hurdle, the benefits of freely transferable property rights in private
parks would be quite similar to those discussed earlier in a context of
charging market-clearing user fees. By forcing the consumer of park
amenities to pay directly for indulging his preferences, free exchange
would introduce important economizing incentives on the consumption of
recreation. Because demand curves do slope downward, private parks would
avoid major problems of overcrowding and degradation, and the private
firms operating the parks would have every incentive to preserve their
beauty in order to attract customers. The payment of admission fees
would generate information on consumer willingness to pay for park
services, and those park services that were preferred would be provided.

Privatization of the ownership of public parks would, however, have
consequences that go far beyond those resulting from the mere charging
of market-clearing user fees.38
Government would have shed its responsibilities entirely and would no
longer be in the park business. If the parks were given away, the
recipients would receive a revenue windfall when they, in turn, sold
their land. If the parks were sold to the highest bidder, the government
would enjoy the revenue windfall. In addition, because private firms
respond to consumer preference, the parks would become much more diverse
as each entrepreneur sought to satisfy as yet unmet consumer willingness
to pay. Individual liberty would also be enhanced because the provision
of private parks would rest on the consent of the contracting parties.

Given the response of private parks to consumer preference, what kind
of parks would consumers prefer and be willing to pay for? Some newly
privatized parks, particularly those in or near urban areas, would
undoubtedly be redeveloped for mass recreation. Some urban parks might
even cease to be parks at all because recreationists might not be
willing to pay enough to bid away the land from alternative uses. On the
other hand, much park land would remain untouched because of the
willingness of consumers to pay for access to wilderness. While the
precise allocations must admittedly be unknown because of the prevailing
suspension of the market mechanism, the probable general trends are
predictable.

Private Ownership and the Law

It is one thing to describe the benefits of private ownership of
parks. It is quite another to describe its legal foundation. For that
one must turn to the complex rules and distinct concept of ownership in
real-property law. The Anglo-American law of real property has its
origin in the elaborate system of reciprocal political responsibilities
of English feudalism.39 During
the early Middle Ages, land was not "owned"; rather, it was "held" on
good behavior, with the king theoretically being the ultimate owner. As
a result of its dependence on tenure relationships, the common-law
system of estates is one of ownership divisible in time.40

What do we mean by speaking of ownership in durational terms? Simply,
that the total ownership of a parcel of land may be divided like a
bundle of sticks in order to set up a queue. The whole bundle represents
total and complete ownership of the land. Because the bundle is
divisible, however, different people with different sticks may be
entitled to exclusive possession of the same land at different times.
Exclusive possession of the land today (by means of a stick known as a
present estate) does not necessarily guarantee exclusive possession
tomorrow (by means of a stick known as a future estate). This does not
mean that the person enjoying the land now is any more of an owner than
the person who will enjoy the land later. It just means that the
division of the sticks has set up the queue, and each person must wait
his turn. The owner of the stick of a future estate must wait until his
possession becomes operative after the person with the other stick gives
up present possession. Furthermore, everyone in the queue will be
protected by the courts. Because both persons are owners of valid
estates (one present, the other future), the courts will protect both
rights today regardless of when possession occurs. By thinking of this
bundle of sticks, one can more readily understand the admittedly
conceptual common-law approach to estates, where what matters is the
time at which one is entitled to exclusive possession of the land.

Private Ownership in Fee Simple Absolute

Assume that one wanted to create a private park. What would be its
legal foundation? The most obvious response would be that one would want
complete ownership of the land outright. Accordingly, one would want the
whole bundle of sticks. In order to enjoy the whole bundle, the owner of
a private park must have title in fee simple absolute.

The fee simple absolute is the largest estate known to Anglo-American
law41 and
represents the ultimate in ownership.42 It
corresponds to our commonsense notions of ownership and can be freely
sold or inherited. Because the owner of the fee simple absolute has the
whole bundle of sticks,43 he enjoys
possession that is of potentially infinite duration. To illustrate: The
owner in fee simple absolute of a beautiful meadow can, subject to the
police power or private promises, control its use, and if he is so
inclined he can preserve the meadow in its natural state for use as a
park for himself or anyone he chooses. As holder of the entire bundle of
sticks, the owner decides. Ownership in fee simple absolute has the
virtue of simplicity of administration, because one need be concerned
only with the present preferences of the owner. In addition, title in
fee simple absolute generates the needed incentives for careful
husbandry of the land because the residual claimant is the person having
title.

But what happens in the future? Perpetual stewardship grounded solely
in fee-simple ownership is not feasible because of the inevitability of
the owner's death. How might a holder of a fee simple absolute
perpetuate the stewardship of his land?

One way would be to transfer the meadow to a perpetual legal entity
that shares the transferor's preferences for the use of the land. A
private for-profit recreation firm with perpetual existence could
continue to husband the land as part of its enterprise. A
conservationist-entrepreneur could run the park as a business that
continues after his death. Direct ownership in fee simple would be well
suited to such an enterprise and would enhance the reduction in
transaction costs associated with for-profit firms.44 Assuming
that consumer preference favored the consumption of park recreation, the
firm would have every incentive to preserve the beauty of the meadow
because in the absence of such husbandry it would be unable to attract
customers. The private firm would thus bring about all the benefits of
private ownership and perpetuate them long after the death of the
original owner.

A private park owned in fee simple absolute could be managed in a
variety of ways. For example, the corporation could hold title to the
land and charge admission. Under traditional tort principles the firm
would owe a duty of reasonable care to the ticket purchaser who would be
an "invitee." The firm could monitor entry at the gate and ration access
to a wide variety of activities and amenities.45 Park
visitors could be required to carry appropriate nontransferable permits,
such as hiking or fishing stamps. The firm could issue stamps for such
pursuits as spelunking, bird watching, fishing, hunting, or skiing. The
stamps, in responding to the sensitivity of the price system would be as
diverse as consumer preference could make them. The gate fee could cover
such hard-to-charge-for amenities as the sky, broad vistas, and fragrant
flowers. Specific fees might then be charged for particular amenities,
such as caverns, geysers, and waterfalls. In this way, the
cross-subsidization of consumers of particular amenities by nonusers
could be reduced to a minimum.

Alternatively, ownership could be divided among the customers with
each person owning an undivided proportionate share.46 With this
approach, called a tenancy in common, each of the owners, called
tenants, is entitled to possession of the entire park subject to a
reciprocal right in his cotenants. Under such an agreement, the legal
relations among the owners become very important, and, in dealing with
the common property, the tenants in common owe a duty of good faith to
one another.

On the nonprofit side, the meadow could be conveyed to a
self-perpetuating conservation organization chartered as a charitable
corporation under applicable state law.47 The
organization's board of directors could then choose as successor members
only those persons who share the preferences of the original grantor. Of
course, the conservation organization would bear the cost of preserving
the land because it presumably would not be charging fees for access to
the land.

Ownership in fee simple, however, can be a burdensome and costly
means of preserving natural areas. Although it is feasible for the
establishment of private parks by for-profit firms or conservation
organizations that are able to attract sufficient capital, ownership of
the whole bundle of sticks can be beyond the capacity of some
individuals. On the other hand, property owners can use less than-fee
property interests to preserve natural areas privately; that is, they
can divide up the bundle of sticks instead of keeping it all.

Qualification of the Fee Simple

Ownership in fee simple absolute is not necessary to ensure the
preservation of the meadow. Absolute fee-simple ownership is
theoretically of infinite duration, and the owner's preferences are
paramount. If the owner who wished to preserve the meadow could cut off
the otherwise infinite duration of the subsequent owner's ownership if
he did not preserve the land in its natural state, the first owner could
exert a significant degree of control over the future use of the parcel.
Because of the time horizon resulting from the historical development of
the common-law scheme of estates,48 the first
owner can indeed control the future use of the land by retaining one of
the sticks from the bundle (known as a future estate) when he conveys
the meadow. By retaining one stick, the first owner enjoys a privilege
of possession of the meadow in the future that is given present
protection, notwithstanding his conveyance of the rest of the bundle to
the subsequent owner. The grantee, on the other hand, does not receive
the whole bundle of sticks of a fee simple absolute. Rather, he receives
a bundle that is tied by a string to the first owner's stick, with the
market price presumably reflecting this diminution of control.

If the grantor's purpose is the preservation of the meadow, then the
conveyed bundle can be forfeited upon the happening of a specified
event, e.g., the development of the meadow or destruction of its natural
amenities. Two varieties of bundles (known as qualified fees) may be
employed, each tied to its own associated future estate to be retained
by the grantor. For example, he can convey a bundle known as a fee
simple subject to a condition subsequent and retain a stick on a string
known as a power of termination.49 Thus A,
the owner of the meadow, could convey the land to B and his heirs on
condition that if the meadow is ever developed, A and his heirs may
reenter and possess the premises. Should the meadow be developed, A or
his successor in interest has the power to pull the string and retrieve
B's bundle by any appropriate act,50 after
which that party will once more have the whole bundle of sticks and own
the meadow in fee simple absolute. Care should be taken to use the
proper language to tie the string to the bundle. The typical words used
are "on condition that," "upon the express condition," "provided that,"
"but if," and similar expressions. The pulling of string may be
predicated on any event, including the failure of the grantee to make or
refrain from a designated use, so long as it is not against public
policy.51
The conservation of natural areas is surely a legitimate purpose for
private restrictions.52

The power of termination is not the only future interest that can be
retained by the grantor. He can also convey a bundle known as a fee
simple subject to a special limitation and retain a stick on a string
known as a possibility of reverted. In this instance, A would convey the
meadow to B and his heirs so long as the meadow remains undeveloped.
Should the meadow be developed, B automatically loses his bundle (known
also as a defensible fee simple) and A, who now has the whole bundle of
sticks, is restored to full fee- simple ownership. This retained stick
automatically retrieves the bundle, giving rise to full fee-simple
ownership once the meadow is developed. As with the power of
termination, the proper language should be used in tying the string of
the possibility of reverted. The terms "so long as," "during," or
"until" are preferred, followed by an express provision for automatic
termination of the grantee's bundle in the event of breach. As with the
power of termination, the possibility of reverter may be predicated on
the same event,53 including
the failure to conserve natural areas. Although these two future
interests have different characteristics,54
particularly regarding their creation and the severity of their
forfeiture, they both enable the grantor to convey scenic land while
retaining a significant ability to compel the transferee to maintain it
in its natural state.

The use of the power of termination and the possibility of reverter
is complicated by questions of alienability and heritability. Once they
are created, may they be sold or inherited? The results differ depending
on the future interest used. Powers of termination may not usually be
sold but they may be inherited. By contrast, both are possible with
possibilities of reverter.55 In
addition, in some states these property rights may expire if not used
within a certain number of years. That is, in order to avoid burdening
land with obsolete restrictions, the string may not be pulled. To the
extent that these limits apply, perpetual private planning may be
frustrated.

We have considered the preservation of a meadow by means of the
conveyance of fee-simple ownership qualified by the grantor's holding a
future estate that allowed him to use the threat of forfeiture to compel
the meadow's preservation. A similar result could be achieved by means
of a very different property right, the easement.56 Returning
to the meadow example, we can divide up the bundle of sticks, removing
an easement. This time, however, we do not set up a queue. Instead, we
determine how different parties may coexist in using the meadow in the
present. The meadow is burdened by the easement, and the possessor of
the meadow must defer to the rights of the easement holder who is
entitled to a limited use or enjoyment of the land. The virtue of the
easement is that it carves out precise property rights that can be
exercised simultaneously. There is no need for a queue or the pulling of
strings, because our aim is present multiple use.

What type of easement would be best suited for the preservation of
natural areas? In the context of environmental conservation, the
traditional distinctions between affirmative and negative easements and
those appurtenant and in gross are critical. For example, ownership of
an affirmative easement entitles the holder to go onto the burdened land
and do acts that, in the absence of the easement, he would be unable to
do. One example might be the granting of a right-of-way that entitles
the owner of the easement to drive across the meadow. By contrast, the
owner of a negative easement can compel the owner of the burdened land
to refrain from doing acts that, were it not for the easement, he would
be privileged to do. The holder of the easement might seek only to
preserve the natural appearance of the land and would not want to do
anything on the land itself. The prevention of development is thus best
accomplished by a negative easement.

The second distinction between easements appurtenant and those in
gross is important in terms of future enforceability. If the holder of
the easement owns other land and the easement benefits him in the use or
enjoyment of that land, then the easement is appurtenant to it.57 For
example, if the owner of the negative easement governing the meadow were
entitled to prevent development in order to benefit his land, Whiteacre,
at the top of a nearby bill, the easement is appurtenant to that land.
Whiteacre is usually called the "dominant tenement," and the appurtenant
easement is attached to it so that whenever Whiteacre is sold, the
easement over the meadow goes with it as an incident of ownership. The
owner of Whiteacre is the "dominant tenant," and the meadow, being
burdened by the easement, is the "servient tenement." On the other hand,
the easement might not benefit the owner in the ownership of any other
land. Such personal easements are referred to as "in gross." An example
would be if the owner of the easement were entitled to prevent
development in the meadow as a matter of personal right but not in order
to benefit a parcel such as Whiteacre.

Assume that the meadow is burdened by a negative easement. What will
happen to the meadow in the future? If the easement benefits Whiteacre
at the top of the hill, it will pass with Whiteacre when it is
transferred. Similarly, if the meadow is transferred, the burden of the
easement preventing development will pass with it as an incident of
ownership. What will happen in the future if the meadow is burdened by a
negative easement in gross? On the burden site, the general rule is that
the burden follows the meadow. Therefore, if the meadow were transferred
to another owner, that person would still be bound to observe the
negative prohibition of development. Problems would arise on the benefit
side, however, if the owner of the in-gross easement attempted to
transfer the easement itself. Unlike the appurtenant easement, the
in-gross easement is personal to its owner and attaches to no particular
parcel of land. Should the in-gross easement be transferred to another,
it may be extinguished.58 True, the
owner of the in-gross easement may want to preserve the meadow just as
much as the owner of the land at the top of the hill with his
appurtenant easement, but, nonetheless, differing rules have often
evolved.

One possible solution to the problem of the nontransferable easement
in gross would be to originally convey the in-gross easement to a
permanent conservation organization.59 If its
permanent legal existence were assured, then the group could perpetually
prohibit development of the meadow without having to acquire any
benefited parcel of land. Thus the same result would be obtained, not by
having any land nearby that would always carry the appurtenant easement
with it, but rather by ensuring that the easement in gross was never
transferred to another owner. This strategy would work only if one could
ensure that the conservation organization were never dissolved or
reorganized into a new legal entity. Should such a dissolution or
reorganization occur, then the easement in gross would likely be
extinguished.

How might a negative easement burdening the meadow best be created?
Both appurtenant and in-gross easements can be expressly created either
by direct grant (conveying one stick) or by reservation (conveying the
bundle and keeping one stick). In a direct grant, the easement is
conveyed directly to the new owner in the same manner as any other stick
from the bundle.60 Thus, if
the owner of the meadow conveyed a negative easement to the owner of the
land at the top of the hill, it would, by virtue of its benefiting
Whiteacre, be appurtenant. Similarly, if the owner of the meadow
conveyed a negative easement to a conservation organization that owned
no land benefited by the easement, it would be in gross. By contrast to
creation by direct conveyance, the owner of a parcel of land may create
an easement by reservation by conveying the whole bunch of sticks of the
burdened meadow and retaining one stick from the bunch, which is a
negative easement over it. The transferee of the meadow thus receives
less than a fee simple absolute because the conveyance did not include
that one stick carrying the privilege of developing the land. If the
former owner of the meadow who retained the negative easement also owned
Whiteacre at the top of the hill and intended to benefit that parcel of
land by precluding development in the meadow, then the reserved negative
easement is appurtenant. Likewise, if the former owner of the meadow
owned no other land to be benefited by the retained easement, then it
would be personal and in gross. Although there are various methods
available for the creation of conservation easements, one should always
keep in mind the importance of the legal consequences of appurtenancy.

Promises Regarding the Use of Land

Two methods of private planning are grounded in the contractual side
of property law. Instead of conveying bundles of sticks, you make a
promise about the use of the land. The first and older type of promise
is that of the real covenant at law.61 Burdened
by complex requirements for enforceability, real covenants proved nearly
impossible to use for private planning. The second type of promise, the
equitable servitude,62 arose in
the courts of equity in the nineteenth century, where promises regarding
the use of land were made enforceable because parties subject to them
had actual or constructive notice of the restrictions.63

In this century the use of equitable servitudes is widespread, and a
restrictive covenant inserted in a deed could be used to preserve land
in its natural state. For example, A, owning the meadow and nearby
Whiteacre, could convey one of them to B and also exact a promise from B
not to develop his parcel of land. The effect of B's promise is the same
as that of a negative easement, only this time instead of keeping a
stick, A has the benefit of B's promise. Of course, the promises could
be tailored to the specific needs of the land in question.

When you make promises to keep land in its natural state, it is
important that the person to whom the promise is made own some adjacent
land that is benefited by the promise. Promises are regarded as properly
appurtenant to specific land and enforceable by the land's owner. If A
conveys the meadow to B and exacts a promise from B to preserve it in
order to benefit Whiteacre, A will be able to enforce B's promise. On
the other hand, if A owns only the meadow and conveys it to B, A will
retain no land benefited by the promise made to him by B to preserve the
meadow. Recalling our earlier discussion, note that if A had kept a
future estate (stick on a string) instead of B's promise, he could use
the threat of forfeiture to compel the meadow's preservation even while
owning no benefited land.

Promises regarding the use of land may not be enforceable in
perpetuity for a variety of reasons, most of which focus on the
disutility of obsolete restrictions.64 In some
states, statutes spell out the applicable time limits. In others,
judge-made common-law principles govern the termination of covenants,
reflecting a special concern for changing conditions that render it
impossible to secure the benefits of the promise. Because of the
prohibitively high transaction costs of negotiating with owners of
scattered parcels of land, the use of the restrictive covenant is most
feasible either in preserving a single parcel of land as a park for the
benefit of nearby land or in maintaining the park-like environmental
amenities of parcels subdivided from a single, initial tract of land.65 In either
case, nearby land is benefited, and the transaction costs should be low
enough to facilitate private planning. Once again, however, one must
keep in mind the problem of enforcement of environmental covenants that,
like easements, might be personal to the covenantee and not appurtenant
to any land.

In light of these complex requirements, it is of great interest that
eight states have recently enacted statutes eliminating these
traditional distinctions that have, at times, so impeded private
planning for environmental purposes.66 These
statutes frequently dispense with many of the formalities necessary for
the creation of less-than-fee interests in land for conservation
purposes.67 Usually
the conservation restriction may be stated in the form of a restriction,
easement, covenant, or condition in any deed, will, or other instrument.
Most important, these statutes provide that conservation restrictions
are not unenforceable for lack of privity of estate or because the
benefits of the restriction are not appurtenant to any particular parcel
of land or on account of the benefit's being assignable or assigned. In
addition, where transaction costs are high, these statutes, by making
conservation restrictions enforceable by injunction, make it more likely
that areas will remain in their natural state than would be the case if
money damages were the only remedy. With an injunction available, the
prospective violator is compelled to negotiate with every right holder
and perhaps face the problem of holdouts.68

Regrettably individuals are not authorized to use these statutes.69
Conservation restrictions may usually be acquired only by a charitable
corporation or trust whose purposes include the conservation of land and
water areas or by any unit of local or state government. To the extent
that private groups can avail themselves of the benefits of the
statutes, private planning will be enhanced. In addition, under most of
these statutes, private, for-profit corporations are not allowed to
avail themselves of the simplified conveyancing rules governing
conservation restrictions. In 1979 North Carolina went further and
authorized any private corporation or business entity with conservation
purposes to hold conservation agreements.70 This
service could be offered to consumers for a fee. If conservationists
were willing to pay for the services of such a firm, then entrepreneurs
might provide a private corporate alternative to the political vagaries
of public parks and zoning boards. The conservation firm could purchase
conservation restrictions acting on behalf of its customers, some of
whom might not own any property appurtenant to the restricted parcel,
but who nonetheless would favor conservation. Like any business firm,
the conservation firm would reduce the transaction costs of private
planning, costs that might be high among scattered parcels of land.71

Tort Law and Privatization

Assuming no reformulation of the law of torts (which governs redress
for harms to persons or their property), a privatized park system with
access rationed by price would bring no great change in the obligations
owed by the owners or occupants of the parkland. Liability in tort for
accidental injuries by owners or occupiers of land to the users of that
land has traditionally depended on whether the user is classified as a
trespasser, licensee, or invitee.72 Pursuant
to a theory of an implied representation of reasonable care,73 users of
municipal, state, and federal parks have been classified as invitees.74
Accordingly, they stand on a higher footing than licensees, and the
landowner has a duty to protect them against dangers known to him or
discoverable by him with reasonable care.

With the abolition of governmental ownership and the establishment of
access rationed by price, users of privately owned parks would, as
business visitors,75 continue
to be classified as invitees. With the payment of a fee, the economic
benefit to the landowner is clear, and the cases would undoubtedly reach
the same result, perhaps on the older theory of economic benefit,76 as that
achieved under the theory of an implied representation of reasonable
care. The incentive structure created by tort law for the landowner to
exercise care would be the same under both a public and private regime,
although the landowner would change.

Not all private recreation need be allocated by price. Private
landowners are not compelled to charge a fee to grant access to their
property for recreational purposes. Indeed many choose not to, and much
recreation takes place within the independent sector with no state
involvement.77 It has
been suggested by one careful student of private governance that tax
incentives and liability safeguards should be granted to individuals who
allow their privately owned land to be used for public recreation.78 In part
this suggestion has been met; in recent years most states have enacted
recreation statutes that deny to the gratuitous user of the land his
customary status as an invitee.79 Because
the landowner has no duty of care to keep the premises safe or warn of
danger, he has less incentive to bar entry to his property because the
cost of the precautions necessary to preclude a finding of negligence
will be lower.

There are two major exceptions to this dispensation. The landowner
typically loses his exemption if he willfully or maliciously fails to
warn of a danger or if he charges a fee for admission to the property.
The second exception is important should the governmental parks be
auctioned off and sold to entrepreneurs who wish to charge entry fees.
Unlike the gratuitous host, owners of private parks for profit would not
be protected by these statutes, and their customers would be owed the
duty accorded to invitees.

Privatization and the Criminal Law

The privatization of public parks would have both substantive and
procedural consequences for the criminal law. With the sale of the
public parks,80 any
applicable federal jurisdiction would end, and state statutes would
determine the content of the criminal law applicable to the newly
private land.

Once the parks were privatized there would be no reason why law
enforcement should remain a public monopoly.81 To the
extent that each private park was a discrete entity, private patrolling
would be quite feasible because one would avoid the free-rider problem82 that
might otherwise prevent the purchase of private protection services. The
detection and apprehension of criminals could be confined to the
premises of the subscriber, and the conferral of benefits could easily
be minimized.83 Municipal
parks present perhaps the easiest case for privatization of police
services because of their clearly defined boundaries. These islands of
greenery in an urban setting could easily be patrolled without
conferring substantial benefits on neighboring property owners.
Violations that occurred on the property of nonsubscribers could be
ignored. More remote parks in no urban areas present a different set of
problems. The borders of rural parks might be less well defined,
resulting in uncertainties of jurisdiction and difficulties of
patrolling. Nonetheless, the acreage of the more remote private parks
would be self-contained enough to avoid major spillover of benefits.

Private law enforcement in the parks would simplify and enhance the
protection of park visitors. Within each park, one firm would probably
be responsible for law enforcement, and visitors would not be confused
by the overlapping duties of various public law-enforcement agencies, as
is the case today in some public parks. Private law-enforcement firms
serving the parks could utilize brand names and lower the costs of
search to the consumer of protection services in a manner reminiscent of
franchised food outlets and department stores. Within each park the
efficiencies of the firm would lower the costs of law enforcement as
internal decision- making disciplined by the market remedied the
inefficiencies and lack of coordination prevalent among public agencies.

The Parks, Public Choice, and the Future

The impediments to privatization of the public parks are not legal.
Indeed, the legal system could adapt quite easily to a privatized system
of parks and recreation. In the best tradition of private ordering, if
there were a need, imaginative conveyancing lawyers could devise a way
to meet it. Just as the private lawyers made possible the mortgage,
long-term lease, and myriad uses of the law of trusts,84 so could
they be the architects of the private parks. Their creative drafting
could renew the private law and build consensual institutions consistent
with economic efficiency and individual freedom.

On the other hand, the impediments to privatization are primarily
political. At a time when entrepreneurial coalitions have succeeded in
politicizing economic choice by a resort to the public law,85 the legal
possibilities of privatizing the public parks are inseparable from the
profound questions of public choice. These questions are crucial ones
for lawyers. Because they are often the harbingers of rent seeking in a
politicized society,86 their
services all too frequently amount to social waste. Most important,
however, by encouraging the rent seekers' breakdown of restraint, the
new public lawyers are degrading and transforming the law from an
instrument of spontaneous private agreement into one of public coercion.
It is no accident that the era of politicization has seen the decline of
the evolving common law and the rise of transfer legislation. If we can
solve the riddle of democratic governance, then we can save not only the
parks but also the law and the lawyers.

Notes:

1 Friedrich Hayek, Individualism and Economic
Order (Chicago: University of Chicago Press, 1948), p. 111.

2 William L. Letwin, "The Achievement of Friedrich A.
Hayek," in Essays on Hayek, ed. Fritz Machlup (Hillsdale, Mich.:
Hillsdale College Press, 1976), p. 162.

3 For discussions of public land policy prior to the
rise of the conservation movement, see Lawrence M. Friedman, A
History of American Law (New York: Simon and Schuster, 1973), pp.
202-5, 361-67; Everett N. Dick, The Lure of the Land (Lincoln:
University of Nebraska Press, 1970); Paul W. Gates, History of Public
Land Law Development (Washington, D.C.: Government Printing Office,
1968); Benjamin H. Hibbard, A History of the Public Land Policies
(New York: Peter Smith, 1924); Jonathan R. Hughes, The Governmental
Habit (New York: Basic Books, 1977), pp. 13-23, 50-61; Malcolm J.
Rohrbough, The Land Office Business: The Settlement and
Administration of American Public Lands, 1789-1837 (New York: Oxford
University Press, 1968).

4 Friedman, A History of American Law, pp.
361-67; Hughes, The Governmental Habit, p. 97; Dwight R. Lee and
Robert F. McNown, Economics in Our Time: Concepts and Issues
(Chicago: SRA, 1975), pp. 131-32.

5 See Gifford Pinchot, Breaking New Ground (New
York: Harcourt Brace, 1947), pp. 509-10; Theodore Roosevelt,
Autobiography (New York: Charles Scribner's, 1913), p. 409;
Gifford Pinchot, "How Conservation Began in the United States,"
Agricultural History 11 (October 1937): 262-63; Melville Bell
Grosvenor, "A Long History of New Beginnings," National
Geographic 156 (July 1979): 18.

6 John D. Hicks, The Populist Revolt
(Minneapolis: University of Minnesota Press, 1931), pp. 420-21; Hughes,
The Governmental Habit, pp. 105-6.

7 U.S. Department of Commerce, Statistical Abstract
of the United States (Washington, D.C.: Government Printing Office,
1979), p. 239. The total acreage was more than doubled on December 1,
1978, when President Carter added over 40 million acres of public domain
in Alaska by declaring them national monuments under authority of the
Antiquities Act of 1906, 16 U.S.C. §§ 431-33 (1976). This further
politicization of property rights in favor of environmentalists has been
greeted with great hostility by many Alaskans.

8 Ibid., p. 241.

9 Armen A. Alchian and William R. Allen, University
Economics, 3d ed. (Belmont, Calif.: Wadsworth, 1972), p. 154.
Recently, perhaps in response to the aging of the American population
and the growing political influence of older voters, at least fourteen
states (Arkansas, Delaware, Indiana, Louisiana, Massachusetts, Montana,
Nevada, North Dakota, Oklahoma, Rhode Island, South Carolina, Tennessee,
Texas, and Utah) have by statute set a zero or reduced price for older
residents for access to state parks. The National Park Service set a
reduced price for the elderly through its Golden Age passport program.
See also U.S. Department of Interior, National Park Service, Camping
in the National Parks System (Washington, D.C.: Government Printing
Office, 1979).

10 For a description of the problems of overcrowding,
see "Crowding and Decay Threaten U.S. Parks," New York Times,
August 3,1980, pp. 1, 40; and Frederick L. Campbell, John C. Hendee, and
Roger Clark, "Law and Order in Public Parks," Parks and
Recreation 3 (December 1968): 28.

11 George H. Stankey and John Baden, "Rationing
Wilderness Use: Methods, Problems, and Guidelines," Research paper
INT-192 (Ogden, Utah: U.S. Department of Agriculture, Forest Service,
Intermountain Forest and Range Experiment Station, July 1977), pp. 6, 7,
8,14.

12 Edwin G. Dolan, TANSTAAFL: Economic Strategy
for Environmental Crisis (Hinsdale, Ill.: Holt, Rinehart &
Winston, Dryden Press, 1971), p. 94; John Baden, "Neospartan Hedonists,
Adult Toy Aficionados, and the Rationing of Public Lands," in
Managing the Commons, ed. Garrett Hardin and John Baden (San
Francisco: W. H. Freeman, 1977), pp. 250-51.

13 U.S. Department of the Interior, Heritage
Conservation and Recreation Service: Volunteer Handbook (Washington,
D.C.: Government Printing Office, 1978); Richard Kraus, "An Urban
Alternative: Making Do with Volunteers," Parks and Recreation 12
(March 1977): 35.

14 Alexis de Toqueville, Democracy in America,
ed. Phillips Bradley (New York: Vintage Books, 1954), p. 198.

15 For a description of the independent sector, see
the remarkable book by Richard Cornuelle, Reclaiming the American
Dream (New York: Random House, 1965), pp. 20-41.

16 Rational voter ignorance stems from an individual
voter's recognition that his vote will have little impact on the outcome
of an election. He has little incentive to incur the information costs
of being informed on political matters, and it is rational for him to
remain uninformed or rely on the low-cost provision of information by
the various media. See James Gwartney, Microeconomics (New York:
Academic Press, 1977), pp. 333-34.

17 The concentrated benefits of regulation make it
natural for producers, unlike consumers, to intervene in the political
process because the benefits obtained exceed the costs of intervention.
It is irrational for consumers to lobby against the subsidy because the
cost of doing so exceeds the tiny benefits that would accrue to each
consumer, and any resulting benefits would be shared by all consumers,
not just those opposing the transfer. As a result, the amorphous
consumer interest is systematically underrepresented. See Allan H.
Meltzer, Why Government Grows (Los Angeles: International
Institute for Economic Research, 1976); Richard A. Posner, Economic
Analysis of Law, 2nd ed. (Boston: Little, Brown, 1977), pp. 239-70.

18 Lawrence White, "Privatization of
Municipally-Provided Services," Journal of Libertarian Studies 2
(1978): 187

19 For discussions of varying degrees of
privatization, see Robert W. Poole, Cutting Back City Hall (New
York: Universe Books, 1980), pp. 26-27; White, "Privatization, pp.
187-88.

20 White, "Privatization," p. 187.

21 Poole, Cutting Back City Hall, pp. 27,
105-6.

22 Ibid., pp. 28-29.

23 "Contracting Out Is Cheaper for City, But Unions
Are Very Upset," Washington Post, November 5, 1980, p. B1.

24 Alchian and Allen, University Economics, p.
355.

25 Arman A. Alchian, Economic Forces at Work
(Indianapolis: Liberty Press, 1977), pp. 259-69.

26 Richard A. Miller, "Economy, Efficiency and
Effectiveness in Government Procurement," Brooklyn Law Review 42
(1975): 208, 228-29.

27 Ibid, p. 227.

28 Ibid., pp. 239-40.

29 See Richard Stroup and John Baden, "Externality,
Property Rights, and the Management of our National Forests," Journal
of Law and Economics 16 (1973): 303.

30 Poole, Cutting Back City Hall, p. 33.

31 The term "property right" refers to the ability to
control the use of a given resource. It does not have any legal
connotations of real estate but refers rather to the total body of
substantive law. See Alchian and Allen, University Economics, p. 142.

32 According to Milton Friedman, public ownership
would be justified in such a case because of the difficulty of
identifying and charging the beneficiaries. See Milton Friedman,
Capitalism and Freedom (Chicago: University of Chicago Press,
1962), p. 31.

33 One example might be the Chattanooga Memorial Park
surrounding the city of Chattanooga with entrances from city streets and
county and state roads. See William J. Whalen, "Proposal to Increase
Entrance and Users Fees within the National Park System," Hearings
Before the Subcommittee on Parks, Recreation, and Renewable Resources of
the Senate Committee on Energy and Natural Resources, 96th Cong.,
1st sess., 1979, p. 49.

34 U.S.C. § 4601.6a(d) (1976). The statute also
directs that the agency take into consideration the "direct and indirect
cost to the Government, the benefits to the recipient, the public policy
or interest served, the comparable recreation fees charged by
non-Federal public agencies, the economic and administrative feasibility
of fee collection and other pertinent factors."

35 One enticing myth is the notion that conservation
of parks and wilderness is the common concern of all mankind. This
argument is used primarily to persuade the majority of
nonconservationist taxpayers to pay for the special interest of
conservationists. See Dolan, TANSTAAFL, pp. 86-88.

36 In a manner perhaps reminiscent of the Homestead
Act of 1862. See Hughes, The Governmental Habit, p. 59.

37 The following discussion derives in part from
Stroup and Baden, "Externality."

38 See ibid., pp. 309-10.

39 See Cornelius Moynihan, Introduction to the Law
of Real Property (St. Paul, Minn.: West Publishing Co., 1962), pp.
1-27; and Theodore F. T. Plucknett, A Concise History of the Common
Law, 5th ed. (Boston: Little, Brown & Co., 1956), pp. 505-45.

40 Thomas F. Bergin and Paul G. Haskell, Preface
to Estates in Land and Future Interests (Brooklyn: The Foundation
Press, 1966), pp. 3-7. The following discussion borrows heavily from the
same, pp. 23-26.

41 Ibid., pp. 26-31; John E. Cribbet, Principles
of the Law of Real Property, 2d ed. (Mineola, N.Y.: The Foundation
Press, 1975), pp. 40-42; and Moynihan, Law of Real Property, pp.
29-35.

42 This is not to say that the fee simple has not
been diminished by the recent advent of public regulation in the guise
of the police power. See, for example, Harry M. Cross, "The Diminishing
Fee," Law and Contemporary Problems 20 (1955): 517. Furthermore,
the holder of a fee simple absolute in the United States is subject to
the payment of applicable property taxes to the state. For a description
of the evolution of land ownership in the United States, see Hughes,
The Governmental Habit, pp. 15-21.

43 The conveyancing rules governing the creation of a
fee simple have been simplified in modern times. At present, a
conveyance "to A" will transfer a fee simple absolute, although in some
states the older formula of "to A and his heirs" may still be necessary.
See Cribbet, Principles of the Law of Real Property, pp. 41-42.

44 See Posner, Economic Analysis of Law, pp.
289-90.

45 The following owes much to conversations with
Terry Anderson. For a general discussion of legal aspects of parks and
recreation areas under private control, see 4 Am.Jur.2d, Amusements and
Exhibitions (1962 & Cum. Supp. 1980).

46 See Moynihan, Law of Real Property, pp.
224-29.

47 One frequently cited example is the Nature
Conservancy. Such an example is apposite to the extent that it retains
title to and privately manages its own lands, and no one denies the
great benefits that come from the Conservancy's private stewardship of
land and wildlife. All too often, however, the Conservancy transfers
title to its land to a governmental agency, thus negating the benefits
obtained from private ownership.

48 Lewis M. Simes, Handbook of the Law of Future
Interests, 2d ed. (St. Paul, Minn.: West Publishing Co., 1966), pp.
5-12.

49 See Cribbet, Principles of the Law of Real
Property, p. 43; Moynihan, Law of Real Property, p. 36; and
Simes, Handbook of the Law, pp. 30-32.

50 At common law, it was necessary for the grantor to
actually enter the premises in order to terminate the granted estate.
Today, the grantor may bring an action to recover the land without first
making an entry, although in some jurisdictions notice of his election
to terminate may be required. See Moynihan, Law of Real Property,
p. 36, note 1.

51 Lewis M. Simes and Allan F. Smith, The Law of
Future lnterests, 2d ed. (St. Paul, Minn: West Publishing Co.,
1956), p. 274, § 244.

52 See, for example, Carpender v. New
Brunswick, 39 A.2d 40,135 N.J. Eq. 397(1944).

53 Simes and Smith, Law of Future Interests,
p. 337, § 285.

54 It has been forcefully argued, however, that
functionally the two property interests are largely indistinguishable.
See Allison Dunham, "Possibility of Reverter and Powers of Termination:
Fraternal or Identical Twins," University of Chicago Law Review
20 (1953): 215.

55 Simes and Smith, Law of Future Interests,
pp. 179, § 1862; 204, § 1903; 177, § 1860;204, § 1903.

56 See Cribbet, Principles of the Law of Real
Property, pp. 335-46.

57 Ibid., pp. 341-42.

58 Ibid.

59 For a discussion of the creation of conservation
trusts, see Allison Dunham, Preservation of Open Space Areas: A Study
of the Non-Governmental Role (Chicago: Welfare Council of
Metropolitan Chicago, 1966), pp. 33-49.

60 Cribbet, Principles of the Law of Real
Property, p. 337.

61 Charles E. Clark, Real Covenants and Other
Interests Which "Run With Land," 2d ed. (Chicago: Callaghan, 1947),
pp. 92-143; William B. Stoebuck, "Running Covenants: An Analytical
Primer," Washington Law Review 52 (1977): 861, 865-67.

62 Clark, Real Covenants, pp. 170-86;
Stoebuck, "Running Covenants," pp. 887-919.

63 Cribbet, Principles of the Law of Real
Property, p. 356.

64 Ibid., pp. 358-61.

65 Posner, Economic Analysis of Law, p. 50.

66 Conn. Gen. Stat. Ann. §§ 47-42a, -42b to -42c
(1978); Fla. Stat. Ann. § 704.06 (West Supp. 1980); Ga. Code Ann. §§
85.1407(c), -1408 to -1410 (1978 & Supp. 1979); Ill. Ann. Stat. ch.
30, §§ 401-406 (Smith-Hurd Supp. 1980-1981); Md. Real. Prop. Code Ann. §
2-118 (1974 & Supp. 1979); Mass. Ann. Laws ch. 184, §§ 31-33 (1977
Michie/Law. Co-op & Supp. 1980); N.H. Rev. Stat. Ann. §§ 47:45(I),
46-47 (Supp. 1979); N.C. Gen. Stat. §§ 121-34 to -42 (Supp. 1979).

67 Several states authorize "preservation
restrictions" extending the same dispensation to less-than-fee interests
in land created for the preservation of historic buildings and areas. To
the extent that some of these statutes extend their benefits to the
preservation of open space natural areas, they will enhance the
potential for privatization of park areas.

68 Posner, Economic Analysis of Law, pp.
50-51.

69 Individuals can, of course, continue to plan
privately through the use of the traditional methods with all of their
complex requirements

70 N.C. Gen. Stat. § 121-35(2) (Supp. 1979).

71 Posner, Economic Analysis of Law, pp.
289-90.

72 Clarence Morris and C. Robert Morris, Jr.,
Morris on Torts, 2d ed. (Mineola, N.Y.: The Foundation Press,
1980), pp. 132-40; and W. Prosser, Handbook of the Law of Torts,
4th ed. (St. Paul, Minn.: West Publishing Co., 1971), pp. 376-98.

73 Prosser, Handbook of the Law of Torts, pp.
388-89.

74 Regarding municipal parks, see Caldwell v.
Village of Island Park, 304 N.Y. 268, 107 N.E.2d 441 (1952);
regarding state parks, see LeRoux v. State, 307 N.Y. 397, 121
N.E.2d 386 (1954), and Surmanek v. State, 24 Misc. 2d 102, 202
N.Y.S.2d 756 (1960); regarding federal parks, see Adams v. United
States, 239 F. Supp. 503 (E.D. Okla. 1965), and Smith v. United
States, 117 F. Supp. 525 (N.D. Cal. 1953).

75 Morris and Morris, Morris on Torts, pp.
113.

76 Prosser, Handbook of the Law of Torts, pp.
386-87.

77 Property owners in North Carolina, for example,
often gratuitously grant permission (in law, a revocable license) to
dove hunters to use their land during the dove hunting season. The
supply of doves and land is so plentiful that as a result of freely
available substitutes, the price demanded for access is zero. On the
other hand, the supply of Canadian geese is relatively small. Thus on
the eastern shore of Maryland farmers will open their fields for a
price, often as much as $100 per day.

78 Richard C. Cornuelle and Robert H. Finch, The
New Conservative Liberal Manifesto, (San Diego: Viewpoint Books,
1968), p. 74.

79 Ala. Code tit. 35, §§ 35-15-1 to -5 (1975); Ark.
Stat. Ann. §§50-1101 to -1107 (1971); Cal. Civ. Code § 846 (West Supp.
1980); Colo. Rev. Stat. §§ 33-41-101 to -106 (1973 & Supp. 1979);
Conn. Gen. Stat. Ann. §§ 52-557f to -557i (West Supp. 1980); Del. Code
Ann. Tit. 7, §§ 5901-5907 (1974); Fla. Stat. Ann. § 375.251 (West 1975
& Supp. 1979); Ga. Code Ann. §§ 105-403 to -409 (1968); Idaho Code §
36-1604 (1977); Ill. Ann. Stat. Ch. 70, §§31-37 (Smith-Hurd Supp. 1979);
Ind. Code Ann. § 14-2-6-3 (Burns 1973); Iowa Code Ann. §§ 111c.1-.7
(West Supp. 1979-1980); Kan. Stat. §§ 58-3201 to -3207 (1976); Ky. Rev.
Stat. § 150.645 (1971); La. Rev. Stat. Ann. § 9:2795 (West Supp. 1980);
Me. Rev. Stat. Tit. 12, §§ 3001-3005 (1974); ibid., tit. 14, §
8103(2)(F)(2) (Supp. Pamph. 1965-1979); Md. Nat. Res. Code Ann. §§
5-1101 to -1108 (1974); Mass. Gen. Laws Ann. Ch. 21, § 17C (West 1973);
Mich. Comp. Laws Ann. §300.201 (Supp. 1979); Minn. Stat. Ann. §§
87.01-.03 (West 1977); Mont. Rev. Codes Ann. §§ 70-16-301 to -302
(1979); Neb. Rev. Stat. 37-1001 to -1008 (1974); Nev. Rev. Stat. §41.510
(1973); N.H. Rev. Stat. Ann. § 212:34 (Supp. 1977); N.J. Stat. Ann. §§
2A:42A-2 to -5, :53A-7 to -9 (West Supp. 1979-1980); N.M. Stat. Ann. §
16-3-9 (1978); N.Y. Gen. Oblig. Law § 9-103 (McKinney 1978 & Supp.
1979-1980); N.C. Gen Stat. §§ 113-120.5-.6 (Supp. 1979); N.D. Cent. Code
§§ 53-08-01 to -06 (1974); Ohio Rev. Code Ann. §§ 1533.18-.181 (Anderson
1979); Okla. Stat. Ann. tit. 2, §1301-315 (West 1973); Or. Rev. Stat. §§
105.655-.680 (1977); Pa. Stat. Ann. tit. 68, §§ 477-1 to -8 (Purdon
Supp. 1979-1980); R.I. Gen. Laws §§ 32-6-1 to -7 (Supp. 1979); S.C. Code
§§ 11-10-101 to -103 (1980); ibid, §§ 51-801 to -805 (1977); S.D.
Codified Laws Ann. § 20-9-5 (1975); Tenn. Code Ann. §§11-10-101 to -103
(1980); ibid., §§ 51-801 to -805 (1977); Tex. Rev. Civ. Stat. Ann. art.
1b (Vernon 1979); Vt. Stat. Ann. tit. 10, § 5212 (1973); tit. 13, §§
3769-3770 (1974); Va. Code § 10-150.18 (Supp. 1979); ibid., § 29-13-.2
(1979); Wash. Rev. Code Ann. §§ 4.24.200- .210 (Supp. 1980); W. Va. Code
§§ 19-25-1 to -6 (1977); ibid., § 20-7A-6 (1978); Wis. Stat. Ann. §
29.68 (West 1973 & Supp. 1979); Wyo. Stat. §§ 34-19-101 to -106
(1977).

80 At present, criminal jurisdiction in the public
parks varies a great deal. In local parks, state law governs; while in
the national parks, the determination of jurisdiction is more complex.
See "Comment: The Criminal Law Enforcement Authority of Park Rangers in
Proprietary Jurisdiction National Parks: Where Is It?" California
Western Law Review (1976): 126, 128-30.

81 Because of its focus on law and private park
management, this discussion is limited to private patrolling of property
and apprehension of criminals in the field and assumes a continued
public monopoly of prosecution and trial, although privatization in the
latter area is also feasible. For a discussion of the private
enforcement of the criminal law at the trial stage, see Posner,
Economic Analysis of Law, pp. 461-78. See also Poole, Cutting
Back City Hall, pp. 50-61. Because of the delays resulting from
crowded dockets, the use of private judges in civil litigation is
increasing. See "California Is Allowing Its Wealthy Litigants to Hire
Private Jurists," Wall Street Jourmal, August 6, 1980. p. 1.

82 See White, "Privatization," p. 193. For a
discussion of the external benefits produced by patrolling, see Gordon
Tullock, Private Wants, Public Means ( New York: Basic Books,
1970), pp. 212-13.

83 Tullock, Private Wants, p. 211.

84 Karl N. Llewellyn, The Bramble Bush, (New
York: Oceana Publishers, 1960), pp. 146-47.

85 See, for example, Meltzer, Why Government
Grows, Thomas Sowell, Knowledge and Decision (New York: Basic
Books, 1980): and A. Walters, The Politicization of Economic
Decisions (Los Angeles: International Institute for Economic
Research, 1976).

86 This is not to deny that real economic growth may
contribute to an increased demand for legal services.

Cato Journal, Vol. 1. No. 2 (Fall 1981). Copyright © Cato
Institute. All rights reserved.

The author is Associate Professor of Law at North Carolina Central
University, Durham 27707. He is especially grateful to Terry Anderson
for his valuable assistance on early drafts of this paper and would also
like to acknowledge the helpful comments of John Baden, Patricia
Marschall, Allen Parkman, Michelle Rippon, and Richard Willke.

This paper was prepared for "Property Rights and Natural Resources: A
New Paradigm for the Environmental Movement," a conference held in
December 1980 and sponsored by the Cato Institute and the Center for
Political Economy and Natural Resources, Montana State University,
Bozeman.

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