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Melms v. Pabst Brewing Co. may be the most important decision ever rendered by an American court concerning the law of waste. Unless your specialty is property law, that might not be enough to stir your interest. The doctrine of waste, after all, does not loom very large in public consciousness these days.

Nevertheless, waste has held a peculiar fascination for property theorists. The reason, I think, is that it touches directly on an important line of division in how we think about property. Does property exist primarily to protect the subjective expectations that particular owners have in particular things? Or is the central function of property to maximize the value that society ascribes to particular things? To put it somewhat dramatically, but I think not inaccurately: Is property an individual right or a social institution?

Melms was decided by the Wisconsin Supreme Court in 1899. It involved a mansion on the south side of Milwaukee that was demolished in the early 1890s by Captain Frederick Pabst, the brewer of Pabst Brewing Company fame. Pabst owned the surrounding property, and thought he owned the mansion, too. It turned out that Pabst did not own the mansion in fee simple. Rather, according to another decision of the Wisconsin Supreme Court — handed down four years after the mansion was destroyed — he held it only for the life of an elderly widow named Marie Melms. After Marie’s death, her children would have inherited the mansion, if it still stood. The Melms children sued Pabst, claiming he had committed waste by destroying the home that was rightfully theirs.

The Wisconsin Supreme Court’s 1899 decision rejected the claim that Pabst had committed waste in leveling the mansion. The decision contained path-breaking language seeming to say that waste disputes should be resolved by comparing economic values. In other words, the court appeared to adopt the view that property is a social institution, not an individual right. My central objective here is to ask whether this is the correct understanding of the case, or of the lessons that it holds for property law more generally.


Common Law | Law | Property Law and Real Estate