So far I have been considering the arrangements that would be expedient in a region only partially settled. But I do not regard the question as fundamentally different in an old country, and I think that the expediency of taking land into common ownership in a district where it has been completely appropriated ought to be determined mainly by the same balance of considerations as the expediency of allowing appropriation in a new country: only in the latter case, in order to reduce the financial difficulty of compensating existing proprietors, it would probably be necessary that the time at which the community would resume its rights over the land should be made a distant one.

1

§ 3. To whatever extent the surface of the earth is appropriated to the exclusive occupation of individuals, its vegetable products will, of course, belong primarily to the occupier, asgenerally speaking-no one else can enjoy them without his consent. Often, of course, their growth is altogether due to his exertion and care, or admits of being materially aided thereby; in fact the encouragement of such production is, as we have seen, the chief end that justifies the appropriation of the soil. So again, where the labour and care of the occupier is directly applied to tame animals that feed on the natural produce of the soil, the appropriation to him of the progeny of the animals is justified on similar grounds. By "tame" animals we mean such as are normally within the control of some man, so that they can at any time be physically taken into possession by him: if they stray beyond his control, it is through accident or the enticement of other men, and their ownership is normally ascertainable by some natural or artificial mark. It is obvious that the exclusive use of such animals may be appropriated to individuals without much more difficulty than that of inanimate things. The case is different with animals which we call "wild," i.e. which require some process of capture, uncertain in its results,

should be granted on easier terms to encourage emigration belongs to a later part of the discussion. See Chap. x. on "Socialistic Interference."

1 See Chap. xii.

before a man can take possession of them.1 Still, if their existence is entirely or largely due to the labour and care of the landowner or his employees, our general principle would seem to justify us in prohibiting other men from taking possession of them, so far as their ownership is clearly ascertainable, as (e.g.) if they belong to a particular rare species. Where this ascertainment is practically impossible, the prohibition would be futile: but even then, so far as they can be prevented from straying, their exclusive use is indirectly secured by appropriating the land. It is, however, obvious that in the case of land whose only useful produce consists in wild animals and vegetables, capable of living and thriving without human labour or protection, one main argument for allowing appropriation is absent. Still, the appropriation of such land-assuming a fair compensation for the utilities thus withdrawn from the community seems to be as legitimate an application of the individualistic principle as its appropriation for agricultural use; provided that its appropriation tends materially to increase the utility obtainable from such land: in considering which we have to take into account the enjoyment derived from hunting wild animals, as well as the utility of the animals when captured. If the whole quantum of utility obtainable in these two, and any other, ways, when the land is allotted to the exclusive use of individuals, is clearly greater then the whole quantum of utility that may be expected to result from leaving it common, appropriation, whether by sale outright, or lease for a term of years, seems clearly expedient: if it is clearly less, the utilitarian legislator will unhesitatingly decide to prohibit such exclusive use; but, of course, in any

1 The criterion adopted by the Romans for distinguishing "tame" from "wild" animals-and widely followed in modern law-was the "animus revertendi." A creature that had a "disposition to return" after straying was tame: if it had no such disposition it was wild. It might have it and lose it it then relapsed into its natural wildness. It seems to me, however, that it is rather the owner's prospect of getting possession of the animal than its own state of mind which is primarily important from a utilitarian point of view.

concrete case the balance of utilities may be difficult to ascertain.1

§ 4. There is no necessity that the appropriation of the surface of land should carry with it an exclusive right to extract the minerals which lie below the surface; and their existence is obviously not in any way due to the labour and care of the individual who has appropriated the surface, or of any subsequent owner. If, indeed, such minerals are of a common kind, it would be a needless and vexatious interference with the freedom of the owner of the surface to prevent him from appropriating them; since he cannot thereby gain any material advantage which might otherwise have been enjoyed by other members of the community. If, however, the minerals are at once so rare and useful that a considerable quantum of extra value is obtainable by the labour spent in extracting them, as compared with other labour, it is prima facie right, on the individualistic principle, that this extra value should be shared equally by all members of the community; except so far as the extra value is needed as a reward to stimulate the labour that has to be spent, on the average, in searching for the rare mineral. This last consideration is of course important: and since the owner of the surface is generally in the best position for ascertaining what lies beneath it—especially if he is allowed to extract common minerals-there is an obvious utility in allowing him to appropriate even the rarer and more valuable contents of the earth; since the total amount extracted will thus tend to be increased to the advantage primarily of the producer, but indirectly of the community as a whole. Whether this gain to the community is likely more than to compensate for the loss of the extra value of rare minerals which the government might secure, in whole or in part, if property in the surface were strictly separated from property in the contents, is a question which only experience can enable us to answer; and which may perhaps require a different answer in reference

1 The question how far market value can be taken as a measure of utility will be discussed later.

to different minerals, and different social and industrial conditions. In any case, it seems desirable to provide for the not improbable contingency that the owner of the surface may not be the person best qualified either to ascertain the presence of minerals hidden some way below the surface, or to decide whether their extraction will be remunerative: and, for this purpose, it seems best to retain for the government, or allow to individual members of the community generally, the right of extracting minerals from land owned by others; under condition of paying adequate compensation to the owner of the surface, and avoiding certain parts of his land where their operations would be likely to cause special inconvenience.

The exact determination of the limits of private and common property in land is, as we have seen, a matter which has to be settled by the aid of specific experience on a balance of conflicting considerations; it has, in fact, varied very much in different ages and countries in which private property in moveables has been completely established. There are, however, important and extensive portions of the earth's surface which individuals have never been allowed, to claim for their exclusive use, their utility being clearly greater when they are not appropriated: those, namely, which are covered by the sea or by navigable rivers. But since the boundaries of these portions are not permanently fixed, but in many cases change continually-though, for the most part, very slowly a question arises as to the ownership of the strips of dry land that are from time to time won from this watery region and it may be instructive to consider briefly the general rules for deciding this, in accordance with the principle so far adopted. If such accessions to terra firma take place by the mere action of natural forces, and cannot be materially aided by human labour, it is obvious that no individual can have a claim to them, and that the increment of value which the neighbouring lands receive through the change ought to belong to the community. So far, on the other hand, as the acquisition or maintenance of the new land requires labour, it is reasonable to let it become the

property of those who are in the best position to apply the required labour; that is, generally speaking, of the proprietors of the neighbouring land, unless uniformity of action is on special grounds desirable, as may be the case with low land protected by dykes.1

§ 5. Hitherto we have been considering the Right of property, according to the commonest conception of it, as implying the right to exclusive enjoyment of the entire aggregate of utilities derivable from some portion of matter. We have now to observe that rights coming under the general head of property may be created by division into fragments, if I may so say, of the permanent right of exclusive use of some material thing. Such division may arise, in the first place, by mere limitation in time of the right of exclusive use; which will, of course, involve a corresponding limitation of the right to alienate or bequeath, and a withdrawal of the right to destroy or to deteriorate, except so far as some degree of deterioration is involved in the normal use of the thing. In the case of moveables generally, this is the only division of utility which can, from the nature of the case, be conveniently introduced; but in the case of land, certain special uses and advantages may be, and frequently are, secured separately to individuals who do not own the remainder such as right of way, right of hunting or fishing on the land of another, right of pasturing, digging turf, etc. In the historic process of gradual change from common to private property in land, several such rights came into being in England, as relics of a general right to share the utilities of land incompletely appropriated, which custom secured in each case to the inhabitants of a certain district. But in the modern community that we are now contemplating as organised on the individualistic principle, such a separation of utilities would only arise by consent, except in the case of utilities which it is clearly to the advantage of the community to reserve to the public: such (e.g.) as rights of way.

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1 This case of land reclaimed from water has a special theoretical interest, as illustrating the limits of Individualism, from a utilitarian or economic point of view. See Chap. x.