Post by B. Palle, Graduate Fellow and SJD Candidate at Harvard Law School
In the most recent Private Law Workshop, Professor Maureen Brady presented her fascinating historical study of the development of metes and bounds demarcation in property law in pre-Revolution New Haven.
New England colonies mandated land recording at least from the early decades of the Seventeenth Century. But these requirements did not specify that the recording be in any standardized form. And when landowners in colonial New Haven (in the 1690’s, say) transferred land or recorded deeds, they relied on a peculiar system to demarcate boundaries: the system of metes and bounds. Under this system, landowners would demarcate boundaries by referring to geographical features such as creeks, orchards, boulders, and trees, as well as neighbors who owned adjacent parcels of land. One might suppose that such a system would impose “astronomical” information costs: the effort required in interpreting and understanding such an idiosyncratic system would seem prohibitively high. Nevertheless, the system worked well for a time. There was very little litigation over property in New Haven before 1700: Brady says that her research revealed just three such disputes. But why did the residents of New Haven (and, indeed, in New England more generally) choose to adopt such an apparently costly mode of demarcating boundaries? And how and why did such a system function so smoothly. In analyzing these questions, Brady looks beyond paper records (such as land deeds) to the social context in which the system operated.
Until the 18th Century, the residents of New Haven constituted a “small,” “homogenous” and a “cohesive” group. Within this close-knit community, residents established a set of social practices that helped them identify the boundaries of their land holdings with reasonable certainty. Brady mentions two: perambulations and land distribution programs.
Perambulation, as the word suggests, was a practice mandated by law, by which property owners learned about the contours of their property by walking along boundaries and preserving the relevant markers. Often, property owners would take their children on their perambulations; and there is evidence that parents would sometimes administer beatings and punishments on the children at the boundaries so that the markers would be strongly imprinted in the children’s memories (a strikingly Nietzschean idea of punishment, if there ever was one). The practice of perambulation had two important consequences. The information of the boundaries was largely “decentralized,” and preserved in the memories of members of the community. In resolving property disputes, courts relied on oral, and not documentary, evidence for identifying the boundaries.
Another important practice that Brady discusses is the mechanism by which towns allotted lands to residents. The distribution of land was usually done in large groups, not individually, which greatly reduced the cost of surveying the lots. The township would also identify in advance the maximum area of the parcels as well as the location of those parcels.
Brady argues that these practices greatly reduced the information costs that the metes and bounds system might otherwise have produced. It would have been more costly – generate “more setup costs” to use the jargon – for colonial New Haven residents to individually survey each of the lots before conveyance. Other factors made the successful working of the metes and bounds system possible. Land was plentiful, which meant that the small group of landowners felt little need to stand on their rights. Further, the complexity of the metes and bounds description would have made it extremely difficult for outsiders to settle in New Haven, which was almost certainly what the residents wanted. Moreover, the metes and bounds description, although lacking in useful information for demarcating the land precisely, did provide other kinds of information that the residents would have found extremely valuable. If you were such a resident, you might have wanted to know who your neighbors were and what sort of trade they carried on, the type of land you purchased and the types of lands surrounding your lot, the sort of agriculture you could carry out on your land, and so on. You would also want to know your neighbors because they would have knowledge of the boundaries to the property. In short, the precise delineation of the boundaries in land deeds would have been of little consequence because of the social institutions and practices within which these transfers were made.
Brady’s linkage of social context to the success of the metes and bounds system also provides an account of the system’s demise. From the 18th Century onwards, the oral tradition and the social practices within which the institution of property had flourished began to disappear; and there was increasing formalization and standardization in the recording of land deeds. Brady speculates that the standardization might have had something to do with the economic growth in New Haven the first half of the 18th century. The economic boom corresponded with greater immigration to New Haven of those living in other parts of New England. The large increase in the size of the community as well as its more heterogeneous character contributed to the decline of the metes and bounds system.
In tracing this decline, Brady challenges the familiar argument, put forward by some economic historians and developmental economists, that a regime of standardized property rights is a necessary precondition for economic development. Brady argues that this argument has things backwards. In New Haven, at least, it was economic development that initially necessitated the standardization. Although she does not fully draw out the implications of this idea, she insists that the relationship between standardization of property rights and economic development is more complicated and less straightforward than what the orthodox account suggests.
As Brady sums it up, “When resource pressure is low and the relevant audience small, more illegible demarcation may offer significant social benefits at a low social cost. On the other hand, as resource pressure and audience increase, illegible demarcation methods are no longer tenable.” Her clear and elegantly written historical piece gives strong support for this interesting conclusion.