It is discouraging to see what dissention the issue of fireplace smoke has created on Kauai. It has pitted neighbor against neighbor and basically split many of our people into two bitterly opposing factions.
More troubling is to witness how these factions each plead their cases to the one entity that is, in large measure, the cause of the problem — government (the County Council, in Kauai’s case). These disputes could be easily settled, if private property rights were widely respected and protected by a judicial system that accepted cases based solely on these fundamental rights — not some specific, positivist law.
Unfortunately, that is not generally the case. Private property rights here on Kauai and across the country have been systematically decimated by local, state and federal governments, together with anti-private property NGOs. Moreover, few, if any, courts will accept a case based upon the violation of property rights per se, unless, of course, a specific law exists and has been broken. This has been the situation for so long that people have no choice but to beg politicians for a law, if one doesn’t exist. The fact is it never occurs to them that perhaps there is another way.
Of course, full property rights just don’t fit the agenda of the political class and its NGO idolaters. This is certainly what is occurring here on Kauai, and it is getting ugly.
Consider what might take place under a system where rights in private property were respected and protected — in other words, a system wherein we were left alone to do what we would with our property as long as we did not violate the rights of others. In the case of real property (land), Person A’s property lines would be considered an invisible “wall,” rising up from the parcel’s ground boundary lines to a height of, say, 500 feet. With a neighbor, Person B, there are one or more shared boundary lines. These lines are inviolable — by either A, B, or any other person or entity.
So, if B has a fireplace and his smoke particles cross property lines and fill A’s house, B has violated A’s property rights, period. Both A and B have a right to enjoy their property as long as they do not violate each other’s rights — that is, their actions do not cause the “wall” to be penetrated or otherwise violated.
Should B continue to fill A’s house with smoke, under a property rights-friendly system, the solution is quite simple. Person A would bring evidence to a court, not unlike a small claims court, and exert his/her right to enjoy the property undisturbed or interfered with by smoke or other nuisances. Assuming there’s valid evidence, B would be instructed by the judge to cease the activity in question. If B persisted, then the court would take some action to assure that the order was followed. End of problem for A or any of B’s other neighbors.
On Kauai, there is simply no need for a specific law banning wood-burning fireplaces, etc., only a resurrection of all-encompassing respect for private property rights and the enforcement of those rights by the judicial system. This way, any dispute would be limited to the parties involved and spare the community all of the angst we see today.
RS Weir is a resident of Kapaa