Property Rights on the American Frontier

Short Paper #1

Property Rights on the American Frontier

By

Gregory Anthony Joubert

The history of property rights in America was crafted by migrants who braved unexplored territories heading west but discovered the American West was not wild when it came to property rights. The short arm of the federal government that tried applying doctrines of English property law were in for a rude awaking because they discovered the common laws of property rights used in England were unsuitable for dealing with property rights of the American west.

As migrants went from the east coast, inland, then further west, in search of opportunity and more fertile land, a problem arouse that had to be addressed. The problem was who owned the land that many pioneers were settling on? Was the owner a tribe of Indians that claimed the land was theirs? Was it a soldier who was paid with land and quickly sold it on the black market? Or was it the elite or absent tee land owner trying to make money and was not anywhere near the land to protect their investment? Or better yet, was the owner the federal government who was giving away more land that it could keep record of and was located hundreds, if not thousands of miles away, sitting comfortably on a leather chair on the east coast.

Predictably, many conflicts arouse because the government did not have a viable solution to the squatter problem. It was not like the government did not try resolving these issue, they were just extremely ineffective in doing so. They had a poorly manned, ineffective, unreliable record keeping office, plus land surveys commonly lagged behind settlements and communities. The problem was compounded due to the fact the government did not have an effective legal means to deal with the western "squatter."

Squatting on available land quickly became common practice no matter how the government tried to thwart it. It is true that squatting was illegal, but it is hard to police such a large area known as the "wild west", especially from such a distance as the east coast. Time and time again Congress passed resolutions and laws prohibiting squatting and even the threat of execution, eviction or imprisonment did little to no good. Especially when a judge could not be found, a jury could not be convened or a sheriff would not enforce the law.

Initially the government tried to apply the doctrines of English property law onto the pioneers but many found the laws to be complex and burdensome. They were more interested in the quality of the land than the technicalities of the law. They believed if they occupied the land and improved it with a house or a farm, that it was theirs. The principle of pre-emption became more practiced than English property law. Governor Benning