The Right to a Way

The difference between a right to access and a highway right of way

The Preservation of Access Rights

The subject of Limits to Mobility (LTM) is the urban access form and how it changed. Access is a scalar field in space, a number assigned to each location according to how it can interact with other locations. LTM and others argue that the State should be concerned with the access form. But the State failed the form of transit-oriented development (TOD) [a detailed history in Urban Rail and Troy] because of discriminatory favor to the automobile mode of connection that was inconsistent with the TOD form and other modes of access.

The highway is a State project. Access is a modally discriminated right. [Adobe image by Sergey Ryzhov]

The Highway Revolt widely criticized the partial and biased interest of the State in one transport mode without accountability to “land use”. That is now hardly the biggest critique of our political malaise. But behind the indifference to the access form is a historic discontinuity of how urban access evolved and its relation to the “natural law” of how we can use the access form. Our “right of access” is both a right to locate (of property) and a right of way to traverse space, despite property. That is a contention of rights, an antinomy, inherent in all self-organizing systems (SOS).

The access form is a SOS and there is a contention between the eminent-domain power of the State and the “right” of our development to organize itself under social, legal and economic form. Eminent domain is the inherent top-down authority of the State (meaning the levels of our governance hierarchy). We mostly recognize the power as condemnation of property for public use. A highway right of way (ROW) is created through urban form by eminent-domain condemnation. As such the ROW overrides any self-organized development but it also is a taking of prior right to access and right of way through that form. Those are public rights not compensated when lost.

There is a phase of history where the conflict of ROW with right of way became significant. This is examined historically in LTM Part II. The access form of the TOD self-organized into a critical period I define as 1893-1920. Then the access form and its connective transport modes stopped being consistent. What was a rail and pedestrian connectivity in the TOD was overridden (an apt term here) by automobile and highway.

The role of the State in highway ROW became significant only when auto traffic failed to fit the previous ways and so eminent domain had to be used to demolish the urban development (and any other ecology) in the way of the ROW. That was latent in the definition of a hierarchical Federal-aid highway system in 1921 and was the culmination of State activism in highways underway by 1893.

By 1921 there was a distinct break with any prior law and policy, including the initial intent to just “improve” the rural roads embedded in the least intensive parts of the urban-access form. The necessary transfer of financial resources from the urban centers was described in a previous post. By 1939 the intention to re-form urban access by highway ROW through urban development was explicit in the “Toll Roads and Free Roads” report by the Bureau of Public Roads to Congress.

When the urban highway program was fully underway—between the 1944 and 1956 Highway Acts—it was apparent that highways did not just “connect better” but replaced existing connections and became barriers to local access and right of way. The Interstate freeways were the first in history to exclude traditional modes (horse, bicycle, pedestrian) from publicly-provided ROWs. They cut neighborhoods and blocked many local roads and paths. The ROW diverged from a right of way and the right to an access form consistent with its connective modes.

A “Natural Law” of Access?

I do not want to make too much of “natural law”. It can be warped into a theory of individual right skipping over our evolutionary history of social groups and the State. We owe some responsibilities to the social, and generally ecological, form we are in. LTM prefers to let complexity evolve in SOS from participatory—but ruly—interaction versus an eminent domain power and projects (EDP). EDP assumes biased and discriminatory ideas of how to “improve” or make more “efficient” our SOS and violates the form-preserving role of the State. The TOD turned into the not-efficient and not-improved auto-oriented sprawl (AOS) we are in.

Natural law was an argument for a change in governance form from monarchy, and so no argument for autocracy now. In our Constitution this became a dichotomy of a limited central State and a set of modular (several-State and individual) rights. As argued for the urban region in a previous post, a lot of intermediate social and urban form was left out and we are left with two levels of State preemption. The highway program adopted that ambiguous mix of preemption over urban development. That was reinforced by the Metropolitan Planing Organization (MPO) and its self-fulfilling predictions of auto traffic. There was no accountability for the change in urban access for or rights. It violated a natural law if that is urban form and the original rights ow way as SOS.

Footpaths

Natural law meets a social organization of governance in common law. I follow the distinction Friedrich Hayek made between Nomos as our evolved rules of behavior and Thesis as the power the State legislates to itself [Law, Legislation and Liberty, 1973-79]. Nomos is close to common law as the rules of social interaction the State sanctions but did not make up. Nomos can be any form for behavior, including the market form for property transactions and the urban form that is access.

Our Nomos can be traced through our primary precedents in English governance and law. We overthrew the monarch but not so much the form of law and governance.

Footpath rights of way have been preserved in Britain, after a fight.

In Britain (with legal differences between its parts) there has been more continuity in the access form that evolved over millennia. Part of that has been preservation of the urban places and footpaths that are even pre-TOD. Since I first visited the the UK in 1963 I can attest to apparent changes in urban form that converge with the US. Rail and bus have contracted and the village centers (high streets) have lost a lot of commercial function. But the footpaths that survive from before any road or rail steam-powered vehicles have been a particular object of contention and preservation.

In England footpaths developed in the common-field landscape as pedestrian access. When the common fields were enclosed into private property, the common ROWs for pedestrian right of way were often ignored. By the late 19^th century there was reaction to preserve in fact what was preserved in common law [Lord Eversley, Commons, Forests and Footpaths, London, 1910; Sir Robert Hunter, Open Spaces, Foot-Paths and Rights of Way, London, 1896]. The fight for footpath ROW continues to the present, and I am thankful for the walking opportunities in England. In the devolution of Scotland, the right of access to the land was codified in 2013 [Malcolm M. Combe, The Law of Access to Land in Scotland, Edinburgh, 2018]. The access is subservient to laws on nuisance and there is specific exclusion of motorized vehicles (excluding invalid assists but putting electric bicycles in an ambiguous category). The presumed right of the property owner is to limit the mode of access (e.g., dirt bikes and the four-wheelers) or any nuisance, in addition to common law restrictions on obstructions to the ROW.

And Urban Paths?

What if nuisance (by automobiles) and pedestrian/invalid access had been preserved for urban centers. That is a counter-historical case but also not without a fight [see Peter D. Norton, Fighting Traffic, 2008]. Interestingly, Norton’s book was published in the MIT Press “Inside Technology” series even though the history is primarily political—of how politicians neither preserved rail nor resisted the auto—and economic regarding the financial threat to rail by autos using public ROWs. That in itself is enough to demand the distinction of the right of way and ROW. The denial of the historic and dominant individual-pedestrian right of way occurred as the common law right of way was displaced in fact by the auto at the “dawn of the motor age” as Norton documents.

The common law pedestrian right of ways persists but is hardly enforced. A study published in 1974 found that in a sampling of 50 cities in the 50- States the historic pedestrian right of way on streets was still in the law [Pedestrian Laws in the United States, Traffic Laws Commentary, USDOT, Vol. 3, No. 3, October 1974]. The right of way was constrained by traffic laws for autos, but drivers are almost entirely ignorant of the prevalent “pedestrians have the right of way at marked or unmarked crosswalks”. The stopping at a stop sign, or right turn on red, for a crossing pedestrian is often violated. My anecdote is that I complained to the police about being nearly run over in a marked crosswalk at the Vienna, VA metro station: I got a letter back citing a law about blocking traffic.

Traffic signals eradicated the historic pedestrian right of way to give auto traffic an uninhibited “go”. An acquaintance of mine in the DC area (Ken Todd) was dedicated to publicizing how traffic signals also displaced the earlier auto right of way rule at intersections that was equivalent to current “roundabout” rules [he is mentioned in The Praxeology and Ethics of Traffic Lights, The Mises Institute, 2010]. The libertarians have adopted this objection to inefficient traffic signals. But efficiency for autos has been the modal bias all along, and behind the adoption of right-on-red (stop optional) after the 1973 gas crisis. Which raises the larger issue of the efficiency of the TOD that autos and their petroleum consumption/pollution destroyed. That is the entire theme of LTM and a previous post on “The Problem of Efficiency”.

Technology, Economics and Politics

The end of the TOD is tied to the diminishment of the pedestrian (and other non-motorized) right of way. LTM and these essays address the nexus of technology, economics and politics that failed to preserve our urban ecology, and extend to the entire ecology. The literal eco-nomy is management of what we live in. Just as the automobile has distorted access it has led to bad economy: The automobile demands urban space, for parking, for highways and for dumping its pollutants. It demands it from urban development, even parks before the 4(f) restrictions of 1966, and it demands it from other rights of way. The State has responsibility for economy at a formal level beyond our greedy little selves, but the money-politics has turned eco-nomy into another market of ideology for cash. Another bad economy is when financial resources are transferred from the financially accountable (e.g., rail and municipalities) to the unaccountable “free roads” for auto-mobility.

The issue is risk management with equity and technology is a threat. Or is it an opportunity? The reader of these essays will know that LTM recognizes risk management and equity as the criteria for the persistence of any ecological form and our social form in particular. Our State has failed even in managing the form of the State as proved by our current polarization. An ideological power “base” is cultivated in preference to Union. We are polarized least in “defense” of our social identity but misconstrue the threat. The “Old Europe” model of standing armies against invasion of another standing army from next door is obsolete. The attack on our ecology is right here by us and manipulated by politicians for the un-economic exploitations of the ecology to convert it into money flows (to finance the politics that supports that). The automobile of Norton’s narrative is a an excellent example if how risk management and equity was overcome by the technology as threat, but money source to the State.

As a systems engineer, who dabbled in risk management for an earlier version of DHS, my concerns could be summarized as technology application with accountability for risk and equity. I recommend the Concept of Operations as explained in the post on modularity. It is about letting the people accountable for the risk participate in the application of technology. Now isn’t that a “Like, duh” proposition? I have found not. What happened in cities with the automobile and then the highways for them contrasts completely with the principle. We get rather the absurd principle that urban development must be demolished—its participants evicted and run off the streets or made illegals for jaywalking—in order to concentrate auto traffic where it does not fit. As Norton documents, the absurdity, bias and exclusion started with auto traffic but then was adopted by the State for its projects on behalf of the auto. The LTM history is more concerned with the latter process in chapters of LTM Part III I call History Absurd and Economics Absurd.

Inequity in income has been emphasized by Piketty and the Gini index. But that only matters because, as Ivan Illich [Energy and Equity, 1974] pointed out, any measure of consumption is a measure of inequity. My post on Efficiency looked at the benefit/cost measure in public finance and emphasized that its general and homogeneous measure of gain (in dollars, but no one’s income) necessarily submerges equity as the many and incommensurate dimensions of who gets what. Similarly for the GDP measure. Inequity is dismissed by the “all boats float” doctrine or the “potential compensation principle”. If you believe that I have a Big Beautiful Budget for you.

The automobile in the city and its “improvement” on the TOD form produces risk and inequity of a technology applied because it enhances consumption of urban space. Even for those space-consumers there is a Tragedy of the Commons (TOTC) of congestion from consuming the “free” highway capacity. The technology entrained the State into overcoming that limit to consumption in disregard for any other risk and inequity. Following the principle of modular accountability for any technology application, the whole problem can be reduced to enfranchisement of whoever is affected in a place and treading softly there rather than those unaccountable for consuming its space. Automobility is unaccountability as space-fickleness.

The question of enfranchisement—meaning participation in any formal change including that of technology or a parameter of interaction like mobility—points to our structure of governance. In the era Norton emphasized the relevant module was an urban jurisdiction. To suppose that the early 20th century urban-political machine was capable of technology risk management is another absurdity. By mid-20th century the urban region is the functional module, but is no jurisdiction and is a governance vacuum awaiting the highway program, for which it got the MPO.

The MPO was mandated by the 1962 Highway Act to co-opt enfranchisement through a skim of officials of the same urban jurisdictions heretofore absurdly incapable of technology or ecological risk management. And they proved that incapability again. The officials were at two steps removed from their constituents: Once by their electoral majoritarianism and then by appointment to a non-elective MPO Board. They are there to take the money available in Federal transport programs, initially dominated by the highways of modal bias and access denial/destruction.

Technology is a great opportunity if applied with enfranchised risk management and equity. But it never had that in the past, so what will change for AVs and AI?

How Did We Get Here?

Sharpshooting the application of particular and recent technologies—especially transport—is myopic in the ecology and will invoke the objection: “What is wrong with progress?” But such an objection just makes historic acceptance of risk and inequity precedent for more of same.

For a really large view I need to cite Lewis Mumford and his Technics and Civilization [1934]. We have been through technology epochs but we need to start with the most epochal: Humans stopped living on the solar-water-dirt surface (whether hunting-gathering or agriculture) and then went where the Sun don’t shine.

Below the surface are only the fossil remnants of stardust. They are limited and toxic when exposed directly or by our further processing and combustion. We immediately achieve our ecological dilemma of starting an unsustainable transient. Restoring a “steady state ecology” by going back to Sun+water+soil may become impossible if our climate change has baked the soil and water. The worst ecological catastrophe is illustrated by our neighbors Venus and Mars. Given how much risk we have dismissed we are ready to dismiss such extremes and any less seems acceptable.

There are proposals—far from the worst of the subterranean applications—that climate change is an excuse to further fission the stardust (aka nuclear energy). Fusion energy? OK, let us try to confine an unstable piece of the Sun here in a box instead of taking what is shining down on us. It is all about technologies to make hot engines instead of accepting the energy+material we mostly evolved with and so fits the ecology to a T (an E?).

If we zoom in from the Mumfordian overview there is the history since the “Industrial Revolution” that, with the hot little steam engines, is concurrent with the “Transport Revolution”. The equivalent of the subterranean fossil-fuels (Blues?) is displacing the animal locomotion that evolved with Sun+water+soil.

The vastly truncated and myopic urban-industrial history comes with the historical accident of the “New” World (relative to the Old European World). The economy also passed from managing what we live in to “trade” that is the spatial extension of consumption. Trade—e.g., your spices for my metals—started to demand a homogeneous measure of value, other than survival, and then the money-token for convenience. European trade with New Worlds led to the Mercantilist and Physiocrat theories that are precursors of “modern” economics that has diverged from managing the ecology [I recommend Henry Spiegel, The Growth of Economic Thought, 1983, for that theory history] .

Economics becomes focused on what humans produce and consume from a “resource endowment” to exploit rather than manage. Where we do live, in the urban ecology, is just another resource for real estate deals or condemnation for projects. Economics gets as far from managing what we live in as a deep shaft extracting oil in the Arctic Wildlife Refuge. We can no longer imagine a non-subterranean economy (where we do not live but extract) and we cannot dissociate mobility from trade or expansion into the space of the New World with all it had to exploit. When we filled the space all we had to exploit is ourselves in our polarized (hardly United) States. Settlers came for land but had to join the money economy anytime after the 15th century.

The question of access and right of way is tied to space but space became property and an impedance to trade in the money-economy. The mobility technologies are the measures of consuming space and so inequity and instability (risk) of access. That technology of consumption was only more sought when urban space was organized into access value. There were places to “get to” and in the industrial ecology getting to work (different from working) was money-valuable however much the commuting itself is a “dead loss” to production work. Suddenly big dollar-values can be put on making inefficient urban-auto traffic more efficient. That is the whole Level of Service (LOS) method with an aura of benefit-cost analysis, two topics previously discussed.

These epochal changes in ecology and economy (what we live in and how it is managed) identify the second most important epoch for us after going subterranean: When the frontier closed (ca. 1880-90) and the national mission of getting space was left dangling to be be replaced by…the automobile conquering our own urban space. That was presented as a continuum of progress by mobility technology but it was a sharp social, political and economic (or we could just say “ecological”) discontinuity.

We then arrived at a transient and “unnatural” concept of what we live in and what is to be managed. The myopic view of auto-highway efficiency leads to the modal bias in right of way and indifference to access. But it is part of the larger change in ecology, our concept of what we live in that is reduced to a property connected to other places “most efficiently” by highway.

The false image of continuity as progress with technology—rather than a shrinking view of the ecology but enlargement of risk—makes us gullible to right of way and access loss. Those are not on the “progress” line.

Projects as Progress

The contention of a steady-state ecology with our extractive transient just excuses another contention: The self-organization of the ecology with the idea that the State can “improve it” with projects. That contention is covered throughout LTM and leads to the polarity between State functions. The State is logically and constitutionally for risk management and equity, but the fallacy of continuous “progress” has rather applied State power to eminent-domain projects (EDP). Highway projects are the primary example because of the discontinuity, risk and inequity of consuming the urban space that developed as the TOD.

The TOD with rail technology is itself deep into urban-industrial epoch so how can it be posed as any reference case? That is an issue that LTM answers by the discontinuity of unprecedented State activism in disrupting by “improvement” the urban form. I make the case that rail was at least financially accountable to urban-access form while “free” highways were neither financially accountable or consistent with the urban access form. If we overlook that bit of un-economic self-exploitation the rest of the ecology in the future is just fair game.

The footpath as modal access in the open-field village ecology is another step back in history from the TOD, but not so long ago over the Mumfordian sweep of Technics changing Civilization. We might try to see just what is continuous over time and that is in the Nomos of social interaction that we accept as ethical and just behavior.

The emergence of common law Nomos, roughly over the last millennium, is pre-industrial but the footpath also shows how different the right of way and access was over that time. In reviewing our own highway laws from colonial times into the early 20th century I find continuity in the law until we get to the construction of highways for automobiles through urban development, from about 1920 but substantially only after WW II.

The prior practice and law for both right of way and ROW [covered in LTM Part II] derives from colonial practice of laying out roads. As far as right of way goes, even on highways, I find at the very start of NY highway law citations [Thompson, Law of Highways, Albany, 1868]:

“A highway is a way over which the public at large have a right of passage, whether it be a carriage way, a horse way, a foot way or a navigable river. It was considered formerly that no way which did not lead to a market town was a highway; but it is now well settled that any way common to all people, without distinction is a highway.”

And ROWs would never be laid out to alter the form of access because they were to access places, not disrupt them. There is early law in Massachusetts [records of the Governor and Company of the Massachusetts Bay, Vol. I, pg. 440 for 1639]:

“…all high wayes shall be layd out before the next Generall Court, so as may bee wth most ease and safety for travellers…notwthstanding any mans propriety, or any corne ground, so as it occation not the puling down of any mans house or laying open any garden, or orchard;”

This prohibition against destroying any development for ROW survives into the NY law cited and is still there in the 1904 Highway Manual [Article 90, Limitations upon laying out highways].

The continuous-progress story for highway projects starts as far back as Persian post roads or the Roman roads, but after the “internal improvements” disputes of our early Republic we start EDP from the rural Good Roads. But they were not for autos, not for new ROW and rationalized the same as for the original laying out of the roads (if they did not just self-organize with original settlement). The road emerged with access to the land not to bulldoze and pave a new swath over it. Maintaining the road is a matter of formal preservation. There is a strict discontinuity in practice and law when we come to the Federal-aid projects after 1916, the functional hierarchy after 1921 and the Interstate freeway at the apex of that hierarchy after 1944. We do not have to go too far back to find the radical change when automobile efficiency encroached on right of way and on the access form by ROW.

A Paradox

More ROW for mobility leads to less access and loss of right of way.

Like more ROW for traffic capacity causing more traffic congestion, this seeming violation of efficient intent results from ignoring critical formal change. The highway policy of concentrating on bottlenecks chooses just those projects that will have extensive effects on traffic-route assignment and access form. Traffic keeps filling the capacity where the traffic demand concentrated itself and then was concentrated by highway-network changes. The policy is myopic even to network flow. The indifference to access form and right of way other than to the auto traffic in the LOS analysis was built into highway engineering at its discontinuity from historic access organization and the local laying-out of roads. And that only developed essentially over my lifetime.

LTM looks at this history to define the discontinuity in the 1893-1920 period. That is also when the form of the TOD was eradicated by State projects that inverted the historic, bottom-up accountability for development and projects. Just when our access form was developing greater complexity, the governance levels least competent to intervene in that development amplified their EDP. The State abandoned the formal regulation needed on behalf of the greater ecological risk and inequity. If there is any paradox it is in this inconsistency of what the State is for and what it does. The State comes to enlarge our own greed for efficient getting of wants indifferent to our social-ethical form. It will be a TOTC of many kinds, not least our political polarization. Everyone wants a more perfect Union and we get one cracked down the middle. Automobility does not bind because of how it was applied.

Increasing complexity meeting more myopic efficiency is our ecological inconsistency. With logical inconsistency all theorems follow and Truth is lost. “More ROW for mobility leads to less access and loss of right of way” is paradoxical because it violates formal truths of the constitutional State and social behavior. Those truths are from our entire span of ecological evolution. The last millennium of our urban ecology is short but of an exponential increase in complexity due to the extension and intensification of all our interactions. Mobility, and more recently bandwidth are the parameters of that. By adopting those parameters as efficient, rather than as measures of formal instability and violations of norms, we arrive at what seems paradoxical now. If we wanted a consistent eco-nomy we needed to preserve our most local, walking, right of way. We did not. And if we wanted to keep places to go to we needed to preserve the TOD form of places that fit with that right of way. And we did not. The paradox we created provides no path—certainly no footpath—to the future.