Private Property in the US

The sand hills of Alberta © Ken Ilgunas via NYTimes

We’d never given this issue much thought, but the idea of private property remaining accessible to others who will act responsibly as passersby is an interesting one. If nothing is damaged and the goal is simply to get from one place to the other, or enjoy nature without borders, then why not? Ken Ilgunas writes an opinion editorial for the Sunday edition of the New York Times:

A COUPLE of years ago, I trespassed across America. I’d set out to hike the proposed route of the Keystone XL pipeline, which had been planned to stretch over a thousand miles over the Great Plains, from Alberta, Canada, to the Gulf Coast. To walk the pipe’s route, roads wouldn’t do. I’d have to cross fields, hop barbed-wire fences and camp in cow pastures — much of it on private property.

I’d figured that walking across the heartland would probably be unlawful, unprecedented and a little bit crazy. We Americans, after all, are forbidden from entering most of our private lands. But in some European countries, walking almost wherever you want is not only ordinary but perfectly acceptable.

In Sweden, they call it “allemansrätt.” In Finland, it’s “jokamiehenoikeus.” In Scotland, it’s “the right to roam.” Germany allows walking through privately owned forests, unused meadows and fallow fields. In 2000, England and Wales passed the Countryside and Rights of Way Act, which gave people access to “mountain, moor, heath or down.”

Nordic and Scottish laws are even more generous. The 2003 Scottish Land Reform Act opened up the whole country for a number of pastimes, including mountain biking, horseback riding, canoeing, swimming, sledding, camping and most any activity that does not involve a motorized vehicle, so long as it’s carried out “responsibly.” In Sweden, landowners may be prohibited from putting up fences for the sole purpose of keeping people out. Walkers in many of these places do not have to pay money, ask for permission or obtain permits.

We’re not nearly as welcoming in America. Travel across rural America and you’ll spot “No Trespassing” and “Private Property” signs posted on trees and fence posts everywhere. And even where there aren’t signs, Americans know they don’t have the implicit permission to visit their town’s neighboring woods, fields and coastlines. Long gone are the days when we could, like Henry David Thoreau on the outskirts of his native Concord, Mass., freely saunter “through the woods and over the hills and fields, absolutely free from all worldly engagements.”

Might we be better off if we could, like a Scot or a Swede, legally amble over our rolling fields and through our shady woods, rather than have to walk alongside unscenic, noisy and dangerous roads? The organization Smart Growth America reported that from 2003 to 2012 over 47,000 pedestrians were killed and an estimated 676,000 were injured walking along roads. Our lack of safe and peaceful walking places may also contribute to the nation’s status as one of the more sedentary countries in the world. According to a 2012 study by The Lancet, over 40 percent of Americans don’t get the recommended amount of exercise per week.

If we want to create more safe and scenic walking spaces, we should look to Europe’s roaming laws for ideas on opening up our countryside. But would a European “right to roam” law work in the United States?

Jerry Anderson, a Drake University Law School professor who has studied American and British property law, says that emulating Britain’s right-to-roam laws would be difficult because of the takings clause of our Fifth Amendment, which declares that private property cannot “be taken for public use, without just compensation.”

“It’s not impossible,” said Mr. Anderson. “You would have to compensate the landowners, and then the question would be, ‘How much compensation is a public right of access worth?’ ”

The amount of compensation is difficult to determine because Britain and other countries with roaming laws don’t have anything like our takings clause. In Britain, landowners were not compensated when their exclusionary rights were compromised by roaming laws. Laws like those in England, Wales and Scotland would probably be declared unconstitutional here.

America, though, started off with an expansive set of roaming rights and traditions. Brian Sawers, a visiting scholar at Emory University School of Law, says that the right to roam — specifically the right to hunt on private, unenclosed land — was cherished by early Americans because it distinguished them from the English, whose aristocracy held exclusive hunting rights and owned the great majority of the country.

Continue reading the op-ed from Sunday the 24th here.

One thought on “Private Property in the US

  1. Pingback: Why doesn’t the US have right to roam laws? | Zero Waste Millennial

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