The Yale Law Journal

February 2019

The Forgotten History of Metes and Bounds

PropertyLegal HistoryLaw and Economics

abstract. Since long before the settling of the American colonies, property boundaries were described by the “metes and bounds” method, a system of demarcation dependent on localized knowledge of movable stones, impermanent trees, and transient neighbors. Metes and bounds systems have long been the subject of ridicule among scholars, and a recent wave of law-and-economics scholarship has argued that land boundaries must be easily standardized to facilitate market transactions and yield economic development. However, historians have not yet explored the social and legal context surrounding earlier metes and bounds systems—obscuring the important role that nonstandardized property can play in stimulating growth.

Using new archival research from the American colonial period, this Article reconstructs the forgotten history of metes and bounds within recording practice. Importantly, the benefits of metes and bounds were greater, and the associated costs lower, than an ahistorical examination of these records would indicate. The rich descriptions of the metes and bounds of colonial properties were customized to the preferences of American settlers and could be tailored to different types of property interests, permitting simple compliance with recording laws. While standardization is critical for enabling property to be understood by a larger and more distant set of buyers and creditors, customized property practices built upon localized knowledge serve other important social functions that likewise encourage development.

author. Associate Professor of Law, University of Virginia School of Law. This Article has benefitted from participants in the NYU Law and Economics Colloquium, North American Workshop in Private Law Theory at Yale Law School, William & Mary Law School Faculty Enrichment Series, Cardozo School of Law Faculty Workshop, Harvard Law School Private Law Workshop, Association of American Law Schools Annual Meeting, Property Works in Progress Conference at Northeastern University, American Society for Legal History Graduate Student Colloquium, Association for Law, Property and Society Annual Meeting, and Harvard University Center for History and Economics New Histories of Paperwork Conference. I am grateful for my research assistants—Tia Bassick, Rachel Gallagher, Wil Gould, Julia Jackson, Maya Rich, Katie Taylor, Olivia Vaden, and Darcy Whelan—who double-checked my readings of hundreds of seventeenth-century deeds and lawsuits with good humor and careful attention. Dan Listwa and the other editors of the Yale Law Journal provided outstanding substantive suggestions and invaluable editorial assistance, including the visuals, which were produced by Sarah Levine. I also owe thanks to Benito Arruñada, Rick Brooks, Chris Buccafusco, Dave Fagundes, John Goldberg, Patrick Goold, John Harrison, Debbie Hellman, Liz Papp Kamali, Greg Keating, Donald Kochan, Gary Libecap, Anna Lvovsky, Cynthia Nicoletti, Marc Poirier, Michael Pollack, Joe Singer, Henry Smith, Stew Sterk, David Waddilove, Katrina Wyman, and Ekow Yankah for helpful comments and conversations. I am especially indebted to Jack Brady, John Duffy, Bob Ellickson, Claire Priest, Carol Rose, Rich Schragger, and Jim Scott for their painstaking reads of earlier drafts and for their encouragement.