LAND USE AND AGRICULTURAL EXCEPTIONALISM

摘要

In Johnson v. M'Intosh, a seminal case1 establishing some of the bases for the American law of real property,2'Chief Justice John Marshall noted in passing that there might be "abstract principles" whereby some types of land use confer upon their practitioners a greater right to the land than those who make different use of it.3 Johnson arose from one of the greatest problems of land use in our national history—the conflict between the North American natives and the expanding European population.4 The European conquest of the continent involved converting "wilderness," which was previously used for hunting and gathering, into agricultural fields.5 New European arrivals in North America believed that agriculture, not hunting and gathering, was the method by which humans possessed land.6 Thus, in the earliest moments of European presence in North America, there arose the problem of divergent and competing land uses at the root of a cultural conflict.