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Trespass and the right to roam

September 20th, 2009 by Joseph William Singer

We generally take for granted that owners have the power to exclude non-owners from their land. But at one time in the United States,unenclosed and undeveloped land was open to the public for the purpose of hunting, gathering kindling and berries, and walking. Eric Freyfogle, The Lost Right to Roam, in On Private Property: Finding Common Ground on the Ownership of Land 29 (2007). Today, about half the states still allow hunting on private land unless the owner has posted “no trespassing” signs. Mark R.Sigmon, Hunting and Posting on Private Land in America, 54 Duke L.J. 549(2004). Moreover, owners who wanted to protect their fields from wandering cattle originally had to fence them out; they had no right to complain that a trespass had occurred when cattle wandered onto their property. Nor could railroads insist that cattle owners prevent them from intruding on train tracks. See, e.g., Nashville & Chattanooga Railroad Co. v. Peacock, 25 Ala.229 (1854); Macon & Western Railroad Co. v. Lester, 30 Ga. 911 (1860). Over time, the rules changed to place liability on cattle owners for damage to crops on the neighbors’ property and denied cattle owners remedies if their cattle wandered onto railroad tracks, effectively changing to a fencing-in system by which owners had the duty to keep their cattle from invading neighboring property.

The right to roam has long been recognized in Finland, Norway, and Sweden where anyone is entitled to hike across or camp in the countryside on the property of another as long as one does not disturb the owner. For information on Sweden, see link.  In 2000, the United Kingdom adopted the Countryside and Rights of Way Act 2000, Acts of 2000, ch. 37, guaranteeing public rights of access for recreational purposes (mainly walking) to certain categories of uncultivated countryside in England and Wales, see link. The Ramblers Association “campaigns to increase and protect public access to the countryside,” see link. Scotland adopted a similar act in 2003, see linkSee also Jerry L. Anderson, Britain’s Right to Roam: Redefining the Landowner’s Bundle of Sticks, 19 Georgetown Int’l Envtl. L. Rev. 375 (2007).

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