The Volokh Conspiracy
[Eugene Volokh, December 22, 2006 at 4:38pm] Trackbacks
Allodial:

If you own land in Arkansas, Minnesota, or Wisconsin, rest secure in the knowledge that the land is expressly "declared to be allodial" by the state constitution. Ark. Const. art. 2, § 28; Wisc. Const. art. 1, § 14; Minn. Const. art. 1, § 15 ("are allodial" rather than "are declared to be allodial"). It may be igneous, or sedimentary, or metamorphic. It may be alluvial or illuvial (though likely not effluvial). But in any case, it's allodial.

Maniakes (mail):
http://en.wikipedia.org/wiki/Allodial_title
12.22.2006 4:47pm
James Dillon (mail):
Do people in Arkansas, Minnesota, and Wisconsin not pay property taxes, as the Wikipedia article suggests they should not?
12.22.2006 4:51pm
John Armstrong (mail):
You'd prefer it be feudal?
12.22.2006 5:23pm
John Armstrong (mail):
Oh, and I should have mentioned before: it's evidently not really allodial at all. If it were, MN wouldn't have had to "reform" its eminent domain statutes in the wake of Kelo, since eminent domain would have been illegal anyhow.
12.22.2006 5:28pm
Eugene Volokh (www):
While there is some non-crazy historical authority for the proposition that "allodial" means free of property taxes (or at least inheritance taxes), that has not been the normal understanding of the term in the U.S. Rather, the U.S. meaning has simply been ownership outright, without any traditional feudal tenures, but nonetheless subject to property tax and eminent domain. See, e.g., Baker v. Kelley, 11 Minn. 480 (1866); Stevens v. City of Salisbury, 240 Md. 556 (1965); Albertson v. Leca, 447 A.2d 383 (R.I. 1982); De Jong v. Chester County, 98 Pa. Cmwlth. 85 (1986); Dane County v. Every, 131 Wisc. 2d 592 (Wisc. App. 1986) (unpublished) (citing earlier Wisconsin authorities that had interpreted the term this way); Dunn County v. Svee, 143 Wisc. 2d 909 (Wisc. 1988); Juneau County v. Baritsky, 187 Wisc. 2d 292 (Wisc. App. 1994) (unpublished).
12.22.2006 5:30pm
Eugene Volokh (www):
John Armstrong: It all depends on what "really" is. If "really" allodial means allodial as it is defined in the real legal systems of today, then "allodial" simply means something like "fee simple absolute." If "really" allodial means allodial as it is defined in some conceptual work about law, then it might mean something different. To me, the "real" meaning of legal terms is the meaning that real legal systems today ascribe to them.
12.22.2006 5:43pm
fffff:
Eugene is ready to be President.
12.22.2006 6:56pm
R:
In Arkansas, I believe the actual term is "allod y'all."
12.22.2006 7:19pm
BruceM (mail) (www):
Git off mah allodium.
12.22.2006 8:31pm
David Hecht (mail):
I'm with Mr. Armstrong here. Why is this supposed to be funny? The constitutions which you cite are all of 19th century vintage...why would it be a shock that they state explicitly that land is devoid of obligations to a superior authority?

In the middle ages, the saying in England was "terra nullius sine foedus", or (very loosely) "there's no such thing as land without a master." Is it really surprising that some folks in the U.S. would want this customary principle explicitly rejected...especially in "new lands" such as all three of these states were at one time?

If only the U.S. Constitution said the same!
12.22.2006 9:21pm
yesno:
Either allodial title means fee simple absolute or it means sovereign territory. The idea that a nation's laws could extend to a bit of land and yet that nation could not tax or take the land under any circumstances seems a bit far-fetched. Because there's no way that the constitutions mean the latter, they must have meant the former.
12.22.2006 11:49pm
Maniakes (mail):
According the the wikipedia article, until 2005 Nevada used to allow property owners to buy out the state's right to tax or condemn land.
12.23.2006 12:57am
Swen Swenson (mail) (www):
Heheh. "Illuvial" refers to the induration of subsurface strata through post-depositional evaporite accumulation at the evapo-transpiration equilibrium horizon, usually in xeric sediments.

Just thought you'd like to know..
12.23.2006 9:58am
Syd (mail):
Colloidal title, I assume, would mean you still own the land after the river carries it out to see.
12.23.2006 10:45am
Syd (mail):
Or sea, as the case may be.
12.23.2006 10:46am
S.A. Miller (mail) (www):
Do people in Arkansas, Minnesota, and Wisconsin not pay property taxes, as the Wikipedia article suggests they should not?

Oh, they pay property taxes in Wisconsin, very high taxes.
12.24.2006 5:14am
Michael Martin (mail):
If I recall correctly, there was a similar provision in the New York state constitution that was removed sometime in the 1980s with the legislative commentary being that it was an archaic term that no longer had any significance.
12.25.2006 2:56pm
Kent G. Budge (mail):
Perhaps titles here in New Mexico should be described as "hemorrhoidal," since, between claims regarding land grants recognized under the treaty that ended the Mexican War, and claims of tribal sovereignty, being certain your title is secure can be a pain in the ...
12.25.2006 5:08pm
Mary Katherine Day-Petrano (mail):
I did not check the Calif. Constitution for alluvial, but I am quite sure half of San Francisco is. I know, I stood on some of it, before those buildings in North Beach liquified in the Loma Prieta quake. I've only driven through Arkansas, and that was on asphalt.
12.26.2006 1:30am
arbitraryaardvark (mail) (www):
There are at least two groups of people who are interested in the jargon of common law rights. Us lawyers, not most lawyers, but the few who take an interest in the history and evolution of the law, and another group that tends to call themselves patriots. Law in the US and UK is a product of tension between between ruling elites and common folk. The patriot movement sometimes ascribes magical properties to certain words or symbols. Often there is some historical basis. Examples include interests in alloidial title, a right to bear arms, fully informed juries, concerns with whether courts are operating under common or admiralty jurisdiction. This leads to concerns with a yellow fringe around the flag, whether parties names are capitalized on pleadings, and other stuff that seems odd. State constitutions are often written by populist victories by the patriot factions, and then interpreted away over the years by the elites. Price v Indiana (Ind. 1993)gives a summary of this conflict, in the course of deciding a state free speech clause case. EV has been doing valuable work in exploring the text and case law of state constitutions as potential sources of expanding liberties. Justices Brennan and O'Connor, for that matter, often looked to the history of the law to explain the text in ways that aren't obvious.
IJ state chapters are doing somne interesting work in trying to rehabilitate obscure constitutional texts to win cases, and hearts and minds. Kelo is probably their biggest success so far. I was not aware that three states had alloidial title clauses in their constitutions, but it fits the pattern. I'm not ready to say these clauses are meaningfully enforceable today, but they can give a new twist when landowners are fighting overregulation. The current zoning regime more approximates feudal title than alloidial title,and would disappoint our anscestors who fought to establish private property as a foundation for a market economy,and fought to incorporate property rights into the fundamental state charters.
I'm currently fighting, and losing, a case on the right to free and equal elections under my state constitution, where the state is now limiting the franchise to people with state-issued voting licenses. Anybody, lawyer or patriot, should learn a bit about the text and history of their state constitution.
12.26.2006 2:57am

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