I have shown that various property regimes – individual, common, and public – may be vested in a single resource or resource amenity at the same time; or they may be vested in different resources or resource amenities that overlap. For example, publicly owned waters or wildlife may cross privately owned lands. In these circumstances property regimes may come into conflict. When they do, it may become impossible to enforce one set of rights in the resource or resource amenity without violating others.

The most prominent example of the type of problems that can arise when property regimes collide is the so-called “takings” claim. Section 1 of this chapter provides a summary introduction to the law of takings. Section 2 reframes takings disputes as conflicts between existing public and private property regimes. And section 3 briefly considers the implications for takings doctrine and public policy.

In contrast to the preceding chapters in this book, the analysis in this chapter is almost entirely legal and heavily doctrinal. Takings doctrine does, of course, carry social and economic implications. The purpose here, however, is not to assess the social value of takings law but more simply to highlight a neglected problem in takings doctrine and jurisprudence, which relates to issues discussed throughout this book.

An introduction to takings law

Governments in most countries possess the power of eminent domain, which literally means highest ownership of land.