Document Type
Article
Publication Date
2026
Abstract
Presumptions matter in cases and controversies about private rights. A party who bears the burden of proof or persuasion and who cannot meet that burden will lose. But private law presumptions are not as well under-stood as the presumption of innocence in criminal prosecutions. This article explains a number of presumptions governing property, especially land use, by reference to the concept of vested private rights. A person may enjoy the presumption that his use of property is lawful when he has a right to make the use prior to a legal challenge or change in the law, and his right is vested in the sense that it cannot be terminated until someone proves that the use is unlawful. The right may be defeasible, but someone other than the right holder bears the burden of proving that it should be defeated. A survey of land use decisions from federal and state courts over the last century demon-strates that the existence or non-existence of a vested land use explains legal and factual presumptions better than more formal explanations, such as courts’ use of so-called “rational basis” review. This suggests the existence of a general, standing presumption that existing land use rights are vested as long as they are not contrary to fundamental law.
Recommended Citation
Adam J. MacLeod, 2 Tex. A&M J. L. & Civ. Governance 367 (2026).
