A Brief Thought on Use and Occupancy

Though I believe in a use and occupancy condition for property, I also believe that this condition should be interpretted liberally - and by liberally here I mean conservatively. Thanks in part to agrarian nostalgia and also to philosophical convenience, original appropriation and continuing "use" and "occupancy" are often explained in terms of a particular mode of subsistence, which is family farming. Under a very strict interpretation of the use and occupancy condition, you don't own your land unless you plant and/or live on it, and the only bits of it that you do own are those parts that you either live directly on or plant on; and if your land goes fallow, then you don't own it any more.

I think there are very good "liberal" and "leftist" reasons for homesteading and continuing use and occupancy to not be interpretted so strictly. One is American Indians getting run off their land because they hadn't sufficiently appropriated it and/or weren't making "good enough" use of it. Another is protected natural areas.

My general and hopefully noncontroversial sense is that if there is no room under the property rules for an area set aside for the mere observational enjoyment of nature, then the property rules are too strict. So what if my land went fallow? I like the look of tall dry grass and wildflowers. Merely walking through and enjoying it should be good enough to count as use (and if I'm the first in a while to walk on it with a fence around it, then that should count as first use).

I shouldn't have to spend 7 nights a week 52 weeks a year on my land for my claim to it to be respected. And I shouldn't have to plant on every bit of it for my claim to be respected, either. If I can't enjoy my land in the way I want to enjoy it (assuming of course that my method of enjoyment doesn't get in the way of other people enjoying their own land), then I don't have property rights. And the way I'd like to enjoy it, once I get rich enough to buy a few acres, is to leave some of it as brushland, grassland, or woods.

None of this is to say that I think the use condition should be thrown out altogether. A house that has boards over its windows and obviously isn't being used at all is, I think, "re-homestead-able". And I believe a field that has nothing grown on it and no one living on it, and whose last owner according to all the records there are died with no heir or anyone who claims to be one, then that field too is re-homestead-able. I just think that sitting there and enjoying the land as it is should be good enough to count as use.