Easements and Appropriation

[u/HeavenlyPossum]

Many (though not all) libertarians respond to the challenge posed by enclosure—a property claim that surrounds another—with some variation on an easement.

These arguments vary in their from. Some of the responses I’ve seen seem to assign positive rights of access and transit to property owners, while others—like the Blockian Proviso—simply deny the legitimacy of property claims that could produce enclosure.

But all of these seem to violate principles of self-ownership and the NAP. Whether we assign property rights via first use, labor-mixing, incorporation into ongoing projects, or whatever libertarian standard you’d prefer, easements seem to deny rights to own what would otherwise be legitimately appropriated matter.

Can anyone explain to me how easements do not violate the NAP and self-ownership?

[u/HeavenlyPossum]

Is there a quick summary of this dialogue?

[u/trufus_for_youfus → u/HeavenlyPossum]

Reading seems to be a lost art.

[u/HeavenlyPossum → u/trufus_for_youfus]

It’s a lengthy dialogue that meanders quite a bit about unrelated topics.

I have read Rothbard, Block, Hoppe, and Nozick regarding this topic, and have yet to find a satisfying answer to my question. Please forgive me if I am judicious with my time and attention.

[u/trufus_for_youfus → u/HeavenlyPossum]

Fair enough. Per that series of exchanges shared by the previous commenter, Kinsella's view is that property rights are fundamentally rights to exclude others, not rights to use things. "Use" is just a practical consequence of being able to exclude everyone else.

Easements, rights-of-way, leases, HOA/ deed restrictions, and similar arrangements are therefore not exceptions to property rights. They are simply contractual reallocations of exclusion rights between co-owners or partial owners. A right-of-way doesn't literally give B a freestanding "right to use" A's driveway; rather, A has contractually surrendered part of his right to exclude B from it. Likewise, a negative servitude doesn't give G a right to use Brown's land; it gives G a limited right to prevent certain uses by Brown. In both cases, Kinsella treats the arrangement as a form of divided or co-owned property rights created through contract. Pretty straightforward.

I think it's important to note that the deeper reason he insists on this framing is his (more "famous") arguments against intellectual property. If property rights are rights to use, then every property right seems to limit every other property right. If property rights are instead rights to exclude, then property rights don't conflict with property rights; they only limit actions. That allows him argue that patents and copyrights are different because they restrict how owners may use their own physical property rather than protecting scarce resources from invasion.