Trespassing: An Inquiry into the Private Ownership of Land
John Hanson Mitchell
"Something there is that doesn't love a wall," wrote Robert Frost, questioning the yearly rite of fence mending between New England neighbors. Author John Hanson Mitchell questions more than the wall; he wonders about the very concept that divides land into parcels of private property. "Who really owns any land for that matter?" he asks. "How do you determine where the boundaries lie exactly while you are out walking, and if you happen to cross an imaginary line, one run out and recorded and set on paper and filed in a registry of deeds, what does it matter?"
In Trespassing, Mitchell takes us with him across those imaginary lines, as he wanders over his neighbors' farms and fields, evoking a New England of Puritans and the Indians they dispossessed, and the generations of Yankee farmers who followed and who are now selling the land to rapacious developers. Mitchell's trespasses are focused on a particular Massachusetts landscape, a 16-square-mile tract near present-day Concord, that the Puritans called the Nashobah Plantation and which their General Court in 1654 "granted" to a group of Pawtucket Indians who professed Christianity and settled there. A missionary named John Eliot, supported from London by the Society for the Propagation of the Gospel Among the Poor Blind Indians of New England, converted these "praying Indians," but neither faith nor property protected them when the Puritans clashed with other New England tribes in 1675. Rousted from Nashobah, they were incarcerated on a wintry island in Boston Harbor, where many died. Those who returned to Nashobah eventually saw much of their land taken over by Puritan farmers. In 1736 their last survivor, a woman who was known as Sarah Doublet, signed away the last acres of the Nashobah tract to a family of tavern owners in exchange for a comfortable deathbed.
Mitchell walks in Sarah Doublet's footsteps, pondering the changing concepts of use and ownership that have shaped this stretch of land. Among the Indians, different groups had rights to use land for certain purposes, for farming, fishing or hunting, and at certain times of the year. So more than one group might have some rights to the same land. But no one owned it, and no one had the right to destroy it.
The Puritans arrived with a concept of property that included provisions for common as well as individual lots, and for the practice of surrounding villages with greens or grazing areas that required shared work, decision-making and use. In this arrangement, there was little room for land speculation.
In the Southern colonies, however, land was apportioned in larger, individually owned tracts, a system that allowed for land speculation. This option proved a common means of amassing a fortune. As the English colonists moved West, it was the Southern system that prevailed. "Wilderness, in the biblical sense, came to an end in America on May 20, 1785," writes Mitchell. "On that day Congress authorized the survey of the Western Territories and divided the continent into a system of six-mile-square townships. Each township was to be organized by straight lines running due north and south, and due east and west. Within this boundary, there was a further division...into thirty-six square sections, each amounting to 640 acres."
Mitchell sees this act as the seed of destruction that is now flowering in our landscape of subdivisions and strip malls, endangered species and toxic environments. "The national grid was essentially the ultimate expression of private property," he writes, "a way of laying out the whole continent into identifiable, salable lots...which viewed land not as a place of wildness and beauty or a source of sustenance, but above all as a commodity to be bought and sold primarily for capital gain."
In his own neck of the woods, Mitchell describes how his neighbors are protesting and in some cases blocking the plans of developers to subdivide further the remaining open spaces, to plant expensive "trophy houses" where orchards and hayfields had been. He recounts the community meetings, petitions and public hearings that finally halted one development on the land of the old Nashobah Plantation, and convinced the town to buy the tract and turn it back into communal open space, bringing that piece of property full circle since Sarah Doublet's day.
Mitchell examines the ways private property is being restored to common use, through such means as conservation easements, land trusts and greenbelts, and notes a growing change in the American attitude toward land. More than a century ago, when Congress passed the Dawes Act designed to convert Indian land from common to private property, as a way to civilize the tribes, a government official stated, "The common field is the seat of barbarism."
Today, Mitchell and many others would place the seat of barbarism not in the commons but in the endless spread of subdivisions and the proliferation of outlying commercial strips "where the greediest can, with abandon, erect the largest signs, serve the fastest foods, and offer the most convenient parking."
Acequia Culture: Water, Land, and Community in the Southwest
José A. Rivera
University of New Mexico Press
There is another story of communal responsibility for the land in America, which Mitchell mentions only briefly, but which José Rivera explores in his study of the traditional Hispanic villages of Colorado and New Mexico. Rivera's Acequia Culture describes the small farmers who depend on community irrigation ditches, or acequias. These farmers share the water, work and governing of the ditches, in a way of life that has survived since Spanish soldiers and settlers made their way up the Rio Grande.
Rivera, an associate professor of public administration at the University of New Mexico, spent 12 years working on this book, getting his feet wet with the ditch bosses and irrigators as well as dusting off documents in state and colonial archives. His writing can be somewhat academic, but the story he tells is alive with people who love the land, and are ready to fight for it. Here is the stuff of The Milagro Beanfield War, only more real than the conflict over land and water that was posed in John Nichols' novel and Robert Redford's film.
For these small farmers and ranchers, although they own their land as private property, the water is a commons, and without it their way of life would die. "Water is life" is their rallying cry against the forces of urban growth and rural development competing for that water. The demands of industry, agribusiness, recreation and new subdivisions are joined against their traditional water rights. Yet community ditch associations have so far preserved most of their acequias and villages against the rising price of land, threats of urban annexation, government plans to control the water through new regulatory bodies or engineering projects, and revisions of law that would allow the sale of water rights as a commodity, separate from the land.
In documenting the grassroots democracy of the ditch associations, and their tradition of shared, sustainable use of a scarce resource, Rivera offers a valuable counterpoint to the story of Mitchell's New England. There, the conservation of open spaces as common land is an amenity for people who no longer live by working the land together. In Rivera's world, life depends on what's shared. As one ditch commissioner puts it, "If there's a cup of water there, we will share it." When a developer tried to buy water rights from members of a ditch association, to use for a new ski area and subdivision, the community protested and a state judge denied the developer's application with these words: "I am persuaded that to transfer water rights, devoted for more than a century to agricultural purposes, in order to construct a playground for those who can pay, is a poor trade, indeed."
Paul Trachtman is based in New Mexico.