the defendant’s land in not actionable in nuisance, no matter how severely it diminishes the usefulness of the plaintiff ’s land. Building a tower that blocks the path of sunlight to your neighbour’s land is not only not a nuisance but does not so much as raise an issue of nuisance, even though it raises obvious issues about restricting use.25 There is an important difference between trespass and nuisance, but the difference is not marked by a shift from a focus on exclusion for focus on use or usefulness.

Another place where the law might be thought to focus on use rather than exclusion is in the law of adverse possession. Adverse possession looks puzzling because the previous owner had good title. A trespasser comes along, and acquires good title in land, without acquiring it from the previous owner. As soon as the question of how that title arose is introduced, however, the puzzle begins to disintegrate. The previous owner’s good title is a matter of the owner having acquired it from someone, who must, in turn have had good title. That earlier title, however, must have been acquired simply from some previous owner having acquired something through taking possession of it. That is, good title presupposes that possession can be acquired simply through following normal procedures for acquisition. That, in turn, is only possible provided that the title can really be good, that is, not subject to challenge based on some documentation from the past. Far from giving priority to active users of land over those who possess land without using it, adverse possession regards use merely as a mark of acquisition, as the manner of taking possession.26

3. Bringing Actual Use Back In

I have argued so far that possible use takes priority over actual use in the law of property, and that the right to possible use takes priority over the possibility of use. In this penultimate section, I want to come back to actual use, and explain how it figures in the operation of the law of property.

In noting the difficulty that Smith’s approach has with the information demands on courts, I drew attention to their inevitably knowing the identity of a property owner in processing any sort of proprietary dispute. In many disputes about property they also need to know something else, namely the way in which the owner was using the property in question. In the nuisance cases, information about the plaintiff ’s use of her land is required in order to identify an interference with it. If the plaintiff ’s use and the defendant’s use do not come into conflict, then there is no claim; if there is no claim, there could be no easement.27 In a claim for damages when property is damaged or destroyed, the damage to the property, understood as a ‘thing’ and the particularities of its use are relevant. So, too, in a claim for damages

25Fontainebleau Hotel Corp. v Forty-Five-Twenty-Five, Inc. 1959.

26I develop this argument in more detail in Ripstein forthcoming.

27This is the central holding of Sturges v Bridgman, despite the attempts by Coase and those following him to characterize it as a case about the development of residential housing.

fit the way in which the law typically thinks about property, but rather that it fits too well, that is, possible use is typically the agenda that an owner has. The more abstract reading fits better, because somebody can own something and want it as an investment, or acquire something without having yet determined how he or she plans to use it, or even determine how long he or she expects to own it.

The more concrete interpretation of the concept of an agenda also fails to fit some of the familiar landmarks of property law, and does so in cases in which a simple and easy to follow rule could fit the agenda model much better. If the owner has no current agenda for an object, why is a harmless trespass actionable?30 Conversely, the priority of ongoing agendas should make room for a defence of coming to the nuisance, since the latecomer’s agenda is less established.31

None of this is to deny that if a property right has been violated, the remedy will take account of the particularities of the plaintiff ’s use of the thing. If it is up to the owner to decide how the thing is used, then, if the owner has made a decision, interfering with that right in a way that prevents the owner from using something is itself an interference with the owner’s exclusive right. The fact of the wrong turns on the owner’s exclusive right; the extent of the wrong sometimes turns on the particularities of the way in which the owner has exercised that right.

4. Conclusion

I have argued that the right to exclude cannot be explained in terms of an interest in use. The justificatory relation goes in the opposite direction: your interest in using the thing is protected not only to the extent to which you have exclusive right to it, but also because you have exclusive right to it. Property rights are interpersonal and relational, and the benefits that they provide two owners reflect their interpersonal and relational status.

In this concluding section, I want to briefly draw attention to the way in which property rights stand as a case study for a more general way of thinking about private rights. Instead of rights being grounded in interests, as the interest theory of rights maintains, I want to suggest instead that the proper direction of analysis yields what we might call a rights theory of interests. The interests protected by the law are always legal interests, which is to say that they are vulnerable to wrongdoing, but not to other things that might set them back in the same way. Private rights are also exclusively negative, that is, they reflect the distinction between nonfeasance and misfeasance. Even if the usability of your property could be improved dramatically if I was required to confer a small benefit on you, the law does not require me to do so. It does, however, require me to refrain from using or interfering with your property, even if doing so imposes a significant burden on me and allowing me to use your property would impose no disadvantage on you.

30In ‘Exclusion and Exclusivity in Property Law’ (Katz 2008) at 303, Katz suggests that Jacque (1997) may have been wrongly decided.

31This is the approach of Lord Denning MR in Miller v Jackson 1977 (CA).

In emphasizing the priority of exclusion over use, I do not mean to deny that many things are more useful, or used more effectively, under a system of private property, any more than I would deny more generally that upholding rights makes life better in many ways. My claim has only been the concept of a right is not an instrument through which a public authority decides whether to delegate the decision to a private agent based on the goods expected to accrue from doing so. The law of property is not the solution to a problem about usefulness. It is the solution to a problem about authority, and the basic norm of that solution is that nobody has authority over anyone else.