We have no right to roam.
But there is a right to exclude.
- Click here for the article.
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 Americareported 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.”Continue reading the main story
“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.Photo
The right to roam “was something we had and lost,” said Mr. Sawers.
Roaming rights began to erode in the late 19th century, according to Mr. Sawers. In the South, states passed trespassing laws for racial reasons, seeking to keep blacks from hunting and fishing so as to starve them into submission. Elsewhere, wealthy landowners of the Gilded Era became concerned with game populations, and trespassing and hunting laws were passed to restrict immigrants, he said.
In 1922, the Supreme Court in McKee v. Gratz ruled that in areas where there is a “common understanding,” the public may be permitted to hunt, fish and travel unenclosed land. However, this right is revoked the second the landowner posts a “No Trespassing” sign, according to Mr. Anderson. This is referred to as a landowner’s “right to exclude,” which, over the years, has grown only more powerful and absolute in a series of Supreme Court decisions.
- Click here for the decision in McKee v. Gratz.
