Excavated Parking Spaces

Prof. Fred McChesney on snowstorms, parking spaces and property rights (hat tips: Prof. Ilya Somin, Menachem Mendel):

Observing how parking spaces are allocated in Chicago provides a fundamental lesson in property rights economics.

Chicago is not New York: people here drive—a lot. So people need to park. That ordinarily is not a problem, as Chicago has many in-town neighborhoods off its main streets where parking usually can be found with just a little looking.

But things change when it snows. Plows hit the streets early and hard. A mayor who cannot get the streets cleared fast cannot be re-elected here. Most snow falls overnight, meaning that plowing a big snow entombs all cars parked on the street by the time their owners awake. With our own cars snug in our garage, my sons and I love to measure how high the plows pile snow against our neighbors’ cars parked on the street. Snow up to the top of the windows is not uncommon. Sometime just a radio aerial marks a car’s location.

The city’s job ends once the snow is plowed from the driving lanes, leaving car owners to their best devices in extricating their vehicles. Digging out creates a natural parking space, a rectangular black patch squeezed fore and aft by white mountains tossed up by plowing. These clear spots are valuable, for the mountains between the cars reduce considerably the overall amount of parking space at the curb.

Before snowfalls, a parking space belongs to the one who occupies it: you leave it, you lose it. In wintertime Chicago, however, excavating one’s car changes the system of property rights. Once car owners dig themselves out of their snow cocoon (Chicagoans carry snow shovels in their trunks for this), they claim the place they cleared as their own. How? Diggers routinely place lawn furniture, buckets, two-by-fours, bar stools, orange highway construction cones and other markers in the space they have just dug out. That means the space now belongs to the excavator. When he leaves, the markers dictate that the space must sit empty until the owner returns. “People do look at these spaces as their own property,” a local law professor comments.

The space belongs to the original snow-mining engineer until the snow melts along the curb. Woe betide anyone who would take that space while its owner is away. Others in the neighborhood—who have undertaken similar excavations and staked out their own spaces—will protect the space for its absent owner. Broken windows, scratched paint, deflated tires and other punishments often follow parking in a space designated by whatever debris marks the excavator’s property.

Perhaps surprisingly, this vigilante justice is of no concern to the forces of law and order. Mayor Richard Daley said last winter, “If someone spends all their time digging their car out, do not drive into that spot. This is Chicago. Fair warning.” Chicago writers, though, decry the “dibs system” regularly in the papers: Studs Terkel calls the system “a commentary on the growing oafishness in our lives.” Local columnist Eric Zorn gets national coverage in the Wall Street Journal for his repeated excoriation of those claiming dibs on spaces they excavated. In the Chicago Tribune, Zorn calls for “a bold leader, backed by a frustrated silent majority,” who can “toss this tradition onto the parkway of history.”

While a comprehensive discussion of the Halachic perspective is beyond the scope of this post, we shall briefly mention here several relevant Halachic principles, and provide references to some of the basic literature.

עני המנקף בראש הזית

The Mishneh states:

עני המנקף בראש הזית מה שתחתיו גזל מפני דרכי שלום ר’ יוסי אומר גזל גמור1

This has generally been understood to mean that the generator of a profitable opportunity is protected against interlopers who wish to seize the opportunity for themselves. We find, however, that many Poskim stipulate one or both of the following conditions for the application of this law:

  • The originator must have invested significant טירחא in generating the opportunity
  • He must have had a high degree of confidence (סמכה דעתיה עליה) in the successful realization of the anticipated benefit

The latter condition would seem to be met here, unless we argue that the excavator may not be confident of the space remaining available upon his return to it at a later point in time. The satisfaction of the former condition, however, is much less clear. There is a basic disagreement among the Poskim over the requisite level of טירחא; some require merely a substantial degree of effort, which may apply here, but others insist that the originator must have actually undertaken some level of risk to his life, such as climbing a tree, or traveling (since סתם דרכים בחזקת סכנה), which would not seem to be the case here, the risk of cardiac arrest notwithstanding.2

זה נהנה וזה חסר

Some Poskim rule that one who invests money to create an item or opportunity of value may charge others who wish to freeload off his investment, insofar as he suffers some loss, even indirectly, from their activity. Their rationale is that even though it is an established principle that

זה נהנה וזה לא חסר פטור

insofar is the freeloading involves any loss at all to the originator, the situation is now

זה נהנה וזה חסר

Applying this principle here would not prevent anyone from taking a space that someone else has excavated, but it would require him to compensate him for his efforts. This is a very tricky issue, however, and a careful study of the literature is called for.3

מנהג

Minhag, of course, is one of the most broad ranging and powerful concepts in Halachah in general, and Hoshen Mishpat in particular. Entire volumes have been written to delineate the parameters of Minhag, but we will merely note here that invoking Minhag to create an entirely new system of rights, binding arbitrary individuals independent of a contractual agreement, is a much more difficult thing then merely utilizing the prevailing custom for the purpose of explaining and fleshing out the parameters of a contract between consenting parties.

  1. גיטין נט: – קשר []
  2. The various opinions of the Poskim are discussed extensively in Nahlas Zvi, HM #237. []
  3. The two main proponents of this line of reasoning are Resp. Noda Be’Yehudah, HM Tinyana #24, partially cited in Pis’he Teshuvah, HM 170:1 and 363:3, and Resp. Divre Malkiel, 3:157. []
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