United States Bureau of Land Management Energy and Minerals Technical Assistance Program

Properly including common rights within the property rights structure of the United States has been a major challenge of the 21st Century. This nation began as a result of a struggle for individual rights. It has not been easy to evolve from that beginning. Not surprisingly, the start involves protection of the property of individuals.

In this simple beginning, there was the need to protect the property of a first person from damage caused by the actions of a second person. Once the judicial process concluded that there was legitimate violation of propery rights in such circumstances this set the stage for consideration of more complex examples where the actions of one person impacted the property of many (or the converse). This led to the development of legal rights and responsibilities shared my many, in common.

This common right takes many forms. Indeed, as discussed above, much of public land and mineral resources can be judged to be property held in common for various groups of citizenry. This is a conventional property concept. A more contemporary concept is the notion of air and water as property, which in its quality dimensions at least is predominantly a common property.

Thus, no individual can diminish the property values of any other individual with regard to the common and private ownership of that property. While these concepts evolved directly from Supreme Court interpretations of the Constitution, sundry laws have been implemented in the past 30 years to provide direct means for protection of both private and common property rights from environmental damage. The link to the past is provided by present debates which question whether the attempts to protect common rights have infringed upon private rights.

In addition to the fundamental constitutional property guarantee, two essential elements of infrastructure are necessary, a cadastral survey and a dependable records system. Without these the guarantee would be compromised by rampant confusion over the delineation of property and the absence of legally defendable records of title to property.

A cadastral survey system established the national grid from which all subsequent detailed parcel surveys are derived. This allows for precise definition of property boundaries. While the survey process is continuous, to reconfirm these boundaries and to demarcate new subparcels, convention has long since accepted the unchallenged merits of surveys as a key to property rights.

All of these surveys would be of little value if there were no records of each. Further, the process of continuing property transactions demands an equally reliable record system. As this process has been a continuing element of the nation's infrastructure since its inception, it too is routinely accepted as part of the process of guaranteeing property rights.

The survey system and the related record keeping process are essential elements of both public and private property structures. While often overlooked,without them there would be little likelihood of a successful land and minerals tenure system, which serves as a backbone for the allocation of resources.