Many people in the United States today like to speak of a thing called “free enterprise,” which in their minds is closely linked to “property rights,” with both of these things being represented by a time in American history before the rise of “big government“–back in colonial days, and for a period after Independence up to the industrial revolution. It would surprise and perhaps disturb these people to find that the earliest North Carolina legislatures, filled with “founding fathers,” were quite willing to take away an individual’s property rights in the interest of environmental improvement. As long as environmental protection was perceived to advance economic development, early American leaders readily restricted individual freedom by imposing state-sanctioned changes on property. But before the rise of the state administrative agencies that now form much of the executive branch of government, the legislature turned to local government and the courts to impose these requirements on property owners.
In 1795, the North Carolina General Assembly passed a statute providing for the draining of wetlands. How? Any person whose land could not conveniently be drained except by ditching through a neighbor’s private property could petition the local court. The court would appoint three persons to meet and view the lands to be drained and the lands to be ditched. Those three persons would decide whether drainage would be “convenient” and where the route of a canal or ditch might best lie. Then, with or without the consent of the property owners, the court could treat the report of the triumviri as conclusive and order the canal or ditch to be cut, after accounting for any damages to the neighbor. See 1795 N.C. Sess. Laws ch. 7 (reprinted in N.C. Laws Compilation of 1804 at 76). The law is still on the books today, G.S. 156-2 et seq., along with a confusing melange of other provisions for drainage enacted in subsequent decades, and now collected in General Statutes chapter 156.
This illustrates an important part of the idea of “freedom” or “liberty” that gets regularly lost in today’s rhetoric about government’s role: there is freedom from things, like government intrusion into one’s property. There is also freedom to do things, to act. Both kinds of freedom are important to liberty. But often my freedom to act (such as to rid my property of excess water) butts up against your freedom from things. My freedom to raise swine butts up against your freedom to enjoy your neighboring property quietly and without the intrusion of odors, noises and waste from my swine operation. My freedom to avoid fees, fines, permit requirements and other government regulations on hunting and fishing butts up against the societal need to regulate hunting and fishing so that there will be game and fish available. What use is freedom from regulation if the resources I need to be productive don’t exist without regulation?
John Stuart Mill wrote about these two different senses of freedom in On Liberty (1859). John Locke acknowledged the tension in his definition: “freedom is not as Sir Robert Filmer defines it: ‘A liberty for everyone to do what he likes, to live as he pleases, and not to be tied by any laws.’ Freedom is constrained by laws in both the state of nature and political society…” Two Treatises on Government (1689).
Government is always and forever trying to resolve these conflicts, and environmental law is directly concerned with them. It has been so since the earliest days of the American states. And when it comes to water, and the interface between water and land, American law and legislatures have always recognized the need to strike balances between freedom from government intrusion versus the need for government overrides of private property rights. One of the greatest works of scholarship about American legal history, Morton Horwitz’ The Transformation of American Law, 1780-1860 (1977), cites the long and extensive debates in the 19th century over water law–especially the law around the building of mills–as the main driver in a fundamental transformation of American courts’ and their relationship to property owners and to the economy. Courts grew, says Prof. Horwitz, to see themselves as proponents of a general sense of economic development and the “public good,” not just as protectors of the quiet enjoyment of individual property.
But even Prof. Horwitz seemed unaware that some of the very earliest American legislatures, including particularly North Carolina’s, were treating water as a special problem requiring some attention to the public good even before the 19th century mill dam cases on which he relies so heavily. In the old drainage law of North Carolina, though, we see it clearly and unmistakeably: American law since the earliest days of the country has forced individual property owners to yield some of their personal freedom to prevailing notions of environmental improvement.