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Comment by csense | Hacker News Reader

If the city / state is forcing the owner open the beach to the public, why does the guy have to pay liability insurance? He should try to seek declaratory judgment that he's not voluntarily opening the land to the public, and therefore the state must indemnify him for any liability created by doing so.

For that matter, if someone's not allowed to restrict access to their property, is it really their property at all, or is it the state's property?

If I were this guy, I'd appeal. I'm no lawyer, but it looks like he's got a good case the state has de facto taken his property away from him, and he's owed compensation under the US Constitution.

Everyone here seems to be against this guy, and their comments seem to be unusually vapid -- "I like going to the beach and I hate rich people" isn't a good basis for public policy.

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> If the city / state is forcing the owner open the beach to the public, why does the guy have to pay liability insurance?

He doesn't. He chooses to, because insurance is more regular and predictable than the risk of liability.

> He should try to seek declaratory judgment that he's not voluntarily opening the land to the public, and therefore the state must indemnify him for any liability created by doing so.

That would likely be a waste of the money that he was paying to his lawyer to pursue such a suit; the law at issue was in place when he purchased the property, so the effect it had on the value of the property (including any associated liability risk) was part of what he chose to purchase.

> For that matter, if someone's not allowed to restrict access to their property, is it really their property at all, or is it the state's property?

"Property" is always a limited set of rights with respect to the subject of the property interest granted by the state.

> I'm no lawyer, but it looks like he's got a good case the state has de facto taken his property away from him, and he's owed compensation under the US Constitution.

Had he owned the property prior to the relevant laws being passed in the 1970s, there'd be some argument to be made that he had been subject to a taking. But he didn't buy the property until 2008, so, insofar as any public taking occurred with the public acccess provisions, they occurred prior to his taking ownership and were priced into the sale when the prior owner sold the property to Khosla. So, there's no reason even if the coastal laws were a regulatory taking, that Khosla would be entitled to any compensation. Khosla -- by virtue of the effect of the restriction on the market price of the land -- would be a beneficiary of the taking, not a victim.

IANAL, but I am a property owner in the US.

While the rights of property owners are important, they're not absolute. It's prudent to recognize that there can be compelling (yet possibly competing) interests that require limits and restrictions to be placed on those rights.

As an example, say you own a piece of land. Someone else buys the land that completely surrounds it. What prevents the other landowner from fencing you in, effectively denying you access to and from the property that you own?

The only way to legally guarantee this doesn't happen is to limit the rights of the other owner (see http://en.wikipedia.org/wiki/Easement for more).

Some other limitations/examples:

The air rights over your land - aircraft are free to fly over your land without needing your explicit consent

Zoning and occupancy restrictions - you're not free to build a strip club in the middle of a suburban housing development

Safety of others - you're not free to booby trap the path to your front door, since that would foreseeably endanger people who are legally visiting your property (for instance, mailmen, public servants, and even pesky door-to-door salesmen)

This is not to say that all of these limitations are fair, or that every competing interest has merit. However, there are enough of these interests that many of these limits are codified into law.

[edited for readability]

"you're not free to booby trap the path to your front door"

In UK you can't even booby trap inside of your house. Even killing someone who is trying to kill you is not recommended.

Nor can you booby trap inside your house in the US.

this holds true for most of the US too. If some one gets hurt on your property youre usually liable. Each state varies a little on this though.

Why should ownership of land be equal to the right to restrict access to said land?

Where I come from (Norway) a land owner needs a good reason to deny the public access to the land. Such a reason might be that the land is very small and surrounding a house (typically a garden), or there are crops planted or animals grazing on the land (typically a farm).

A land owner can't just put up a fence, but is free to develop the land (within county restrictions) or sell it and pocket the money.

Yeah, too bad for introvert billionaires, but hey, most people aren't and that's democracy for ya.

> Why should ownership of land be equal to the right to restrict access to said land?

For the same reason that ownership of a car equals the right to restrict who gets to drive the car: that's what ownership means.

> Where I come from (Norway) a land owner needs a good reason to deny the public access to the land.

Then no one really owns land in Norway. The government owns he land and grants people development rights.

One could argue that this is how things ought to be (e.g. http://www.henrygeorge.org/pcontents.htm). But such theories are historically unpopular in the U.S.

The same applies in Scotland as well [1].

It's always interesting to see the reactions of people who view property ownership as some kind of natural law when you present them with systems of property ownership that differ on fundamental points. Property ownership is entirely a social construct that differs significantly across different cultures. I don't see what basis you have for calling your preferred legal system the one true meaning of ownership.

Nobody really 'owns' land anywhere. It's always a set of rights granted to you by the government, unless you are an absolute monarch yourself.

[1] https://en.wikipedia.org/wiki/Land_Reform_(Scotland)_Act_200...

> Nobody really 'owns' land anywhere. It's always a set of rights granted to you by the government

The source of ownership rights is orthogonal to the meaning of the word "ownership". In common usage, ownership means: a perpetual and transferrable right to dispose of something as one sees fit. (Some would argue that the adjective "unencumbered" should also be added to the list, and that the existence of property taxes in the U.S. means that no one "really" owns land there either.) If the right is not perpetual and transferrable, then you are a lessor, not an owner. If the right is not to dispose of the thing as you see fit then what you own is not the thing but some sort of restricted use license on the thing.

So you are agreeing with the parent right?

Not really. I think there is a useful place to draw a line and call it "ownership" even if there are some restrictions involved. For example, I feel like it's fair to say that I own my house and the land it sits on despite the fact that I have to pay rent on it (property taxes) and I can't tear down the house and build a gas station instead. But IMO, one of the necessary conditions for ownership is the ability to restrict access. Again, I use cars as an analogy: if I can't lock the doors and prevent people from sitting in the driver's seat on a whim, I don't think I can reasonably say I "own" the car.

Ownership can be subjective, but I'd agree that you don't have meaningful "ownership" of the land if you have no ability whatsoever to limit access. There's a wide range of in between, though.

In this narrow case (public access to the Martin's Beach), I'd say Khosla still clearly owns the land. He's just not allowed to use land ownership to cut people off from the coast. The court has required an easement, based on historical access routes. Nobody is allowed to wander off that trail and hang out in Khosla's garden or living room. In this sense, public access is limited, and provided to the minimal extent necessary to ensure that public ownership of the coast is meaningful ("minimal" could be debated, some might claim that our ability to get to this coast on a kayak is good enough, but courts clearly have interpreted this to mean land-based easements).

My understanding is that in Norway and some other nordic countries, land ownership does not include the right to prevent people from reasonable travel across it. That may even include camping on the land briefly. That's definitely a more limited concept of land ownership than you typically see in the US, but even that doesn't really mean you don't "own" the land, as the owner clearly has greater rights to it than the public.

I don't think the car analogy advances the argument much here, as there are clearly different kinds of property rights ("if I can't lock the doors and prevent people from sitting in the driver's seat, clearly I don't own the lyrics to the song I just wrote…").

Sure so you have one definition someone else have another. The Norwegian model just have a different treshold than the US but both are not really ownership but rather as was said renting.

Land rights in Scotland are even less restrictive - the 'right to roam' encompasses most agricultural land. Naturally, people are still prohibited from damaging crops or interfering with livestock.

> For the same reason that ownership of a car equals the right to restrict who gets to drive the car: that's what ownership means.

To go along with your car example, there are relationships which trump ownership. In the US, if a uniformed police officer approaches you and requests the use of your car in order to prevent a serious crime, you must comply. The cop's dire need to access your vehicle trumps the ownership of your car. Sure, you still own your car, but somebody else needs it a lot more right now.

Same thing in Norway regarding land ownership. Sure, you own it, but public access to that land may in some cases trump ownership.

It's a fair point, but the ability of a policeman to appropriate my car under very particular circumstances (in an emergency or if I've broken the law) is very different from the ability of anyone to take my car (or even just, say, sit in it) whenever they please. I'll grant you that it's a difference in degree and not in kind, but personally I feel pretty comfortable drawing a line between those two situations and calling one "ownership" and the other something else (like a restricted use license) but reasonable people could certainly disagree about this.

Nice. We now agree that even though the owner of some property does not want to share, there are indeed circumstances where the owner must do so anyway.

Which leaves us with discussing what reasonable circumstance is.

You'd argue that fencing off a five mile long beautiful beach so that nobody else can enjoy this land is reasonable. I'd argue to the contrary, and it seems judge Barbara Mallach, at least, is with me on that one.

> You'd argue that fencing off a five mile long beautiful beach so that nobody else can enjoy this land is reasonable

No, absolutely not! I'm happy the judge rules as she did. The disagreement is merely about terminology. I just don't think it's reasonable to say you "own" land that you can't keep people off of.

Various laws restrict children and the inebriated from driving a car. Under your ownership definition, that means that the government owns the car, no?

If so, it seems like your example of what it means to "own" something is actually a counter-example.

> Under your ownership definition, that means that the government owns the car, no?

Actually, children and drunk people can legally drive, just not on public roads. There are a lot of restrictions on behavior in the interests of public safety that trump certain property rights under certain circumstances. That doesn't mean I don't own my car.

Indeed - thanks for the correction!

What about this counter-example - do you own a bottle of vodka if the government says that it's illegal for you to let a child drink it?

Do you own a gun if the government says it's illegal for you to shoot someone with it?

Your construction is "ownership of a car equals the right to restrict who gets to drive the car."

My mistake was interpreting that to include "where".

By parallel construction, "ownership of a bottle of vodka equals the right to restrict who gets to use the bottle of vodka", doesn't it? We do not allow children to use a bottle of vodka in the same way that adults can use it.

Your parallel construction should be "ownership of a gun equals the right to restrict who gets to use the gun", but you instead countered with "ownership of a gun equals the right to restrict how it can be used."

Isn't that a similar mistake to the one I made? Prohibitions on the target are "a restriction on behavior in the interests of public safety that trump certain property rights", and not a restriction on who can shoot it, no?

> Your construction is "ownership of a car equals the right to restrict who gets to drive the car."

No. Ownership (IMO) includes the right to restrict. It's necessary, but not sufficient. But the converse is not necessary. It is not necessary that I be able to allow anyone to drive my car in order to say that I own it. I can't, for example, allow an unlicensed driver to drive my car, but that doesn't mean I don't own my car.

> you instead countered with "ownership of a gun equals the right to restrict how it can be used."

No, you got this backwards. Ownership stands even in the face of (some) restrictions on how it can be used.

Consider the statement "the government owns all bottles of vodka, but it allows you to control it within certain limits"?

Is that statement invalid? If so, how?

I believe your thesis, and in my words, is that in Norway "the government owns all land, but it allows people to control parcels of land within certain limits."

I have a hard time coming up with a good definition which says the first is incorrect but the second is correct.

The statement is not invalid, it just doesn't fit my intuition of what ownership means.

One of the conjectures, regarding the freedom to roam in Norway, Sweden, etc., is based on the observation that these lands never had serfdom. It may be that your intuition is based on feudal principles, echoing a feudal lord's objection to the monarch's control.

While an enticing conjecture, I suspect the relative population sparsity of those countries, where property damages of the right to roam are within the capacity of the land to handle, is a greater reason.

Examples involving consumable or personal goods, like a car or bottle of vodka, don't have the same capacity.

As a related example, in Minnesota and likely elsewhere, boaters may use the lake surface even though the lake bottom is jointly owned by all of the landowners surrounding the lake. (See http://files.dnr.state.mn.us/publications/waters/Pardon_Me_M... .)

No. Both children and drunk people can drive their cars whenever they want on private property. The government only says they can't do it on PUBLIC roads, because it's against the interests of the public. Your example would make sense if children and drunk people were prohibited from using their own cars even on private property, and that's not the case.

In some countries this may be different - in some eu countries if you cause an accident while drunk while on private property, you might be prosecuted.

One could argue why should people own land that was created before people existed? We can see the argument for owning the car, but owning land is like saying you own the air.

I completely agree, but most people here are American.

Despite being a socialist in most respects, I have to agree with you. Property is either public, with the state responsible for all incidents and maintenance, or private with a landowner responsible and within their rights to control access.

If the private landowner has to insure and maintain the area then I can't see any reason why they should be forced to maintain access. If the state sees otherwise then the state should provide the services for the general public at the expense of the general public.

It's not necessarily black or white. Here in Belgium, the sidewalk in front of your house is public but the house owner has to take some care of it. E.g. when there is snow or ice, it's the house owner responsibility to remove it (and is responsible if someone get injured by sliding on it).

That's also the case in the US, not known for its strong socialist leanings.

For example, from http://www.cityofboston.gov/snow/removal/snowremoval.asp we can about read the laws for Boston, which require the property owner to clear the sidewalks within 3 hours of either the end of snowfall or sunrise.

Or to pick a much smaller city in Wyoming, http://www.gillettewy.gov/index.aspx?page=300 , "The City has an ordinance (Section 18-17) requiring owners or occupants of all real estate in the city to remove snow from the sidewalks adjoining the property within 24 hours after the snowfall ends."

> Despite being a socialist in most respects, I have to agree with you. Property is either public, with the state responsible for all incidents and maintenance, or private with a landowner responsible and within their rights to control access.

It doesn't surprise me that participants in a discussion board focussed largely on the computing startups prefer things to fall into crisp binary categories, but that's not how property interests in anything have ever worked, and indeed, the whole essence of a sovereign state is that all property interests within its jurisdiction are limited sets of rights granted by and subject to the sovereign.

But, in any case, the beaches themselves in California are, under the coastal laws, effectively public property, what Khosla is compelled to do is to preserve pre-exisitng access to the public to their property through his. Such requirements are actually common in property where pre-existing access to one property (public or private) is through another private property.

[1] http://en.wikipedia.org/wiki/Easement (see, particularly, easement by necessity and easement by prior use)

I agree in that if the law mandates you have to allow certain parts of your property for public use then it should also protect you from liability if a member of the public gets injured on that part of the property.

That being said, I think this decision was the right one. Public access to the beach trumps someone's concern about liability.

As long as there are property taxes, it's not yours. you are renting it from the government.

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