There is a temptation to categorize Texas and California under the two states’ traditional labels: Texas, the land of property rights; California, the land of regulation. But the truth is nearly the reverse. Texas does not actually hold that all property is sacred in the way property is commonly considered. It holds that the productive, extractive use of property outranks the passive holding of it. In California, a neighbor’s right to be heard can stop you from building on your own land; in Texas, a stranger’s right to use it can take it from you. As our legal academy is fond of pointing out, property is a bundle of rights, with none more impactful than possession and development. California has made the first sacred, Texas the second. But how did these two states develop such opposing systems of property rights? To answer that question requires winding back to the moment that both decided that they had had enough of that great American bogeyman, the railroad…

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