8 ms·

Slightly off topic, but related: I'm always interested in the different approach to public "right of ways" in the US (and Canada) versus the UK. Given that the

by Alex63 3y ago

Slightly off topic, but related: I'm always interested in the different approach to public "right of ways" in the US (and Canada) versus the UK. Given that the concept of public right of way was well established in the UK before the colonial period, why didn't the colonies recognize rights of way based on well-established use? Based on my limited knowledge of the US and Canada, I'm not aware of any State or Province that recognizes the right of the public to cross private land on established paths/trails in the way that is recognized in the UK.

undersuit 3y ago
In Montana we employ corner hopping: https://www.onxmaps.com/onx-access-initiatives/corner-crossing-report https://www.onxmaps.com/onx-access-initiatives/corner-crossi...
mjh2539 3y ago
Well, for one, public rights of way do exist on, and adjacent to, every public road. But that's kind of besides the point. I think there's probably many reasons, but here's a few I can think of: 1. The trails and such that warrant these rights never existed in the first place. 2. The rights come from long-established customs, which again, never got the chance to get going in the United States. 3. The legal/juridical establishment in the United States tended to care more about protecting the rights of property owners than protecting the freedom to travel (in this limited respect).
- bombcar 3y ago
  Also the UK is more "historically dense" than much of the US was (and is!).
- Animats 3y ago
  There's a lot of legal history there. The US never had feudalism. The overthrow of feudalism resulted in reduced land rights for large landowners. There's another amusing historical accident - Blackstone.[1] Blackstone's Commentaries[2] are a self-contained four volume set on how the English legal system worked. They had a strong influence on the US legal system. Most of the drafters of the Constitution read them. There were few if any law libraries, but many copies of Blackstone. Blackstone was a property rights absolutist. He wrote: "So great moreover is the regard of the law for private property, that it will not authorize the least violation of it; no, not even for the general good of the whole community. If a new road, for instance, were to be made through the grounds of a private person, it might perhaps be extensively beneficial to the public; but the law permits no man, or set of men, to do this without consent of the owner of the land. In vain may it be urged, that the good of the individual ought to yield to that of the community; for it would be dangerous to allow any private man, or even any public tribunal, to be the judge of this common good, and to decide whether it be expedient or no."[3] This is further than English law goes. US law arose from that interpretation. That's the power of writing the most widely read book on the subject. [1] https://en.wikipedia.org/wiki/William_Blackstone https://en.wikipedia.org/wiki/William_Blackstone [2] https://en.wikipedia.org/wiki/Commentaries_on_the_Laws_of_England https://en.wikipedia.org/wiki/Commentaries_on_the_Laws_of_En... [3] https://press-pubs.uchicago.edu/founders/documents/v1ch16s5.html https://press-pubs.uchicago.edu/founders/documents/v1ch16s5....
  - zdragnar 3y ago
    This is an argument against eminent domain (which the US still has), not free access to private property.
    - Animats 3y ago
      That's the short version. Blackstone on trespass: "(Trespass) signifies no more than an entry on another man’s ground without a lawful authority, and doing some damage, however inconsiderable, to his real property. For the right of meum and tuum, or property, in lands being once established, it follows as a necessary consequence, that this right must be exclusive; that is, that the owner may retain to himself the sole use and occupation of his soil: every entry therefore thereon without the owner’s leave, and especially if contrary to his express order, is a trespass or transgression. The Roman law seem to have made a direct prohibition necessary, in order to constitute this injury: “qui alienum fundum ingreditur, potest a domino, si is praeviderit, prohiberi ne ingrediatur.” But the law of England, justly considering that much inconvenience may happen to the owner, before he has an opportunity to forbid the entry, has carried the point much farther, and has treated every entry upon another’s lands, (unless by the owner’s leave, or in some very particular cases) as an injury or wrong, for satisfaction of which an action of trespass will lie; but determines the quantum of that satisfaction, by considering how far the offense was willful or inadvertent, and by estimating the value of the actual damage sustained."[1] Except for the carve-out for fox-hunting: "In like manner the common law warrants the hunting of ravenous beasts of prey, as badgers and foxes, in another man’s land; because the destroying such creatures is profitable to the public." [1] https://lonang.com/library/reference/tucker-blackstone-notes-reference/tuck-412/ https://lonang.com/library/reference/tucker-blackstone-notes...
  - gottorf 3y ago
    > Blackstone was a property rights absolutist For good reason, one can suppose. Wealth flows downstream from the concept of private property whose rights are strongly guarded by law. An "ideal" amount of property rights, if one exists at all, is likely much closer to absolute than zero.
dylan604 3y ago
There is the concept of easements. Probably not as familiar to the suburban person, but out in the boonies, it is allowed for you to use another person's property to get to your property if there is no other access to your property. For example when your property doesn't have direct access to a road unless using your neighbor's access. Lots of country properties "share" a dirt road
- Alex63 3y ago
  Noted (I'm actually rural, and have an easement on my own property), but an easement is quite different from a public right of way in the UK. An easement does not create a public right, and (at least in WA state) must be negotiated between the landowners.
  - crtified 3y ago
    The fundamental difference between the private and public R'sOW is who the 'agreement' is between. With private, the agreement is by - or between - private landowner(s). With public, it's between every applicable private landowner, and the governing authority.
  - dylan604 3y ago
    There's also easements into greenbelts. There are some places around lakes where you can only access the publicly accessible areas by crossing private property. Usually, there is a designated path for that access, and the property owner cannot block it from public use.
    - myself248 3y ago
      Then you get into the peculiarity of "corner crossing", where four parcels meet at an infinitesimal point. Can you cross the corner and not be considered to have trespassed onto one of the other pieces? It's.... tricky.
      - dylan604 3y ago
wesleyd 3y ago
Maine has right to roam, kind of, in a very american way: you can assume you have permission, unless clearly indicated otherwise. This preserves property rights, but only if you want them. Also there is a strong presumption of zero liability for the landowner (AFAIK!), so landowners aren't particularly incentivized to close off their land. All thanks to the hunting lobby, I expect.
- ryandrake 3y ago
  Yea, I think the liability thing is key, at least in the USA. I have no problem in concept with allowing the public to roam on my property (as long as they're not taking or damaging things), but I wouldn't want to allow it if they could sue me and win because they tripped on a rock or something.
  - ghaff 3y ago
    Anyone can sue anyone for anything. I assume that if you trip on a rock or a tree root on a trail on someone's land, suing would be a man bites dog thing--but so could any number of events. Obviously if you deliberately put some hazard of a trail crossing your property, that could be different. (Though probably edge cases--tricky natural hazard on a well-established trail you didn't do anything about.)
- volkl48 3y ago
  Also the case in New Hampshire and Vermont. And at least in NH there's some tax incentives for leaving your land unposted/open to that kind of access.
  - nkurz 3y ago
    Do you know more about the tax incentives in New Hampshire? I'm in Vermont, and wondering if there are established patterns that would work for our town. Edit: I'd love to hear from anyone elsewhere that offers such incentives as to how they are structured.
lozenge 3y ago
It's in the name isn't it? Colonies. There were already people there who shouldn't have any rights to the land.
- strictnein 3y ago
  Which group of people who were in the Americas had the "right" to the land? The groups that were on the land when Columbus landed? Or the groups that were there when the Pilgrims landed? Or the groups that were there in 1776? For large swaths of the Americas, these are all different groups, many of which seized the land through violence. It's something people like to throw out as an argument, but it falls on its face under the most basic of scrutiny. The entire earth was "stolen" many, many times by this definition, making it nonsensical.
  - dghlsakjg 3y ago
    You could start with the ones who were forced to sign treaties under the current constitution under duress, or treaties they couldn't read, or treaties that weren't respected. https://www.history.com/news/native-american-broken-treaties https://www.history.com/news/native-american-broken-treaties
chimeracoder 3y ago
> why didn't the colonies recognize rights of way based on well-established use? Because that would have been at odds with colonists' goals of seizing the land from the people whom it previously belonged to, and who were using it.
b112 3y ago
In Canada, there are so many streams and rivers, lakes, that these are the 'right to roam' areas. There are all sorts of laws for access, and the country was explored by canoe. And in the winters of 200 years ago, the lakes became frozen roads. Yet part of it may also be, that land wss apportioned in large, organized chunks in many cases. Given to settlers, with spaces for roads as part of the plan. Europe had many places where there was no way to get around, for there were no roads!
- alistairSH 3y ago
  And in the US, access to waterways isn't guaranteed. I'll have to look up the details, but there are sections of the James River in Virginia which are private and the right to privacy was granted in the colonial era.

by Alex63 3y ago

undersuit 3y ago

In Montana we employ corner hopping: https://www.onxmaps.com/onx-access-initiatives/corner-crossing-report https://www.onxmaps.com/onx-access-initiatives/corner-crossi...

mjh2539 3y ago

Well, for one, public rights of way do exist on, and adjacent to, every public road. But that's kind of besides the point. I think there's probably many reasons, but here's a few I can think of: 1. The trails and such that warrant these rights never existed in the first place. 2. The rights come from long-established customs, which again, never got the chance to get going in the United States. 3. The legal/juridical establishment in the United States tended to care more about protecting the rights of property owners than protecting the freedom to travel (in this limited respect).

bombcar 3y ago
Also the UK is more "historically dense" than much of the US was (and is!).
Animats 3y ago
There's a lot of legal history there. The US never had feudalism. The overthrow of feudalism resulted in reduced land rights for large landowners. There's another amusing historical accident - Blackstone.[1] Blackstone's Commentaries[2] are a self-contained four volume set on how the English legal system worked. They had a strong influence on the US legal system. Most of the drafters of the Constitution read them. There were few if any law libraries, but many copies of Blackstone. Blackstone was a property rights absolutist. He wrote: "So great moreover is the regard of the law for private property, that it will not authorize the least violation of it; no, not even for the general good of the whole community. If a new road, for instance, were to be made through the grounds of a private person, it might perhaps be extensively beneficial to the public; but the law permits no man, or set of men, to do this without consent of the owner of the land. In vain may it be urged, that the good of the individual ought to yield to that of the community; for it would be dangerous to allow any private man, or even any public tribunal, to be the judge of this common good, and to decide whether it be expedient or no."[3] This is further than English law goes. US law arose from that interpretation. That's the power of writing the most widely read book on the subject. [1] https://en.wikipedia.org/wiki/William_Blackstone https://en.wikipedia.org/wiki/William_Blackstone [2] https://en.wikipedia.org/wiki/Commentaries_on_the_Laws_of_England https://en.wikipedia.org/wiki/Commentaries_on_the_Laws_of_En... [3] https://press-pubs.uchicago.edu/founders/documents/v1ch16s5.html https://press-pubs.uchicago.edu/founders/documents/v1ch16s5....
- zdragnar 3y ago
  This is an argument against eminent domain (which the US still has), not free access to private property.
  - Animats 3y ago
    That's the short version. Blackstone on trespass: "(Trespass) signifies no more than an entry on another man’s ground without a lawful authority, and doing some damage, however inconsiderable, to his real property. For the right of meum and tuum, or property, in lands being once established, it follows as a necessary consequence, that this right must be exclusive; that is, that the owner may retain to himself the sole use and occupation of his soil: every entry therefore thereon without the owner’s leave, and especially if contrary to his express order, is a trespass or transgression. The Roman law seem to have made a direct prohibition necessary, in order to constitute this injury: “qui alienum fundum ingreditur, potest a domino, si is praeviderit, prohiberi ne ingrediatur.” But the law of England, justly considering that much inconvenience may happen to the owner, before he has an opportunity to forbid the entry, has carried the point much farther, and has treated every entry upon another’s lands, (unless by the owner’s leave, or in some very particular cases) as an injury or wrong, for satisfaction of which an action of trespass will lie; but determines the quantum of that satisfaction, by considering how far the offense was willful or inadvertent, and by estimating the value of the actual damage sustained."[1] Except for the carve-out for fox-hunting: "In like manner the common law warrants the hunting of ravenous beasts of prey, as badgers and foxes, in another man’s land; because the destroying such creatures is profitable to the public." [1] https://lonang.com/library/reference/tucker-blackstone-notes-reference/tuck-412/ https://lonang.com/library/reference/tucker-blackstone-notes...
- gottorf 3y ago
  > Blackstone was a property rights absolutist For good reason, one can suppose. Wealth flows downstream from the concept of private property whose rights are strongly guarded by law. An "ideal" amount of property rights, if one exists at all, is likely much closer to absolute than zero.

dylan604 3y ago

There is the concept of easements. Probably not as familiar to the suburban person, but out in the boonies, it is allowed for you to use another person's property to get to your property if there is no other access to your property. For example when your property doesn't have direct access to a road unless using your neighbor's access. Lots of country properties "share" a dirt road

Alex63 3y ago
Noted (I'm actually rural, and have an easement on my own property), but an easement is quite different from a public right of way in the UK. An easement does not create a public right, and (at least in WA state) must be negotiated between the landowners.
- crtified 3y ago
  The fundamental difference between the private and public R'sOW is who the 'agreement' is between. With private, the agreement is by - or between - private landowner(s). With public, it's between every applicable private landowner, and the governing authority.
- dylan604 3y ago
  There's also easements into greenbelts. There are some places around lakes where you can only access the publicly accessible areas by crossing private property. Usually, there is a designated path for that access, and the property owner cannot block it from public use.
  - myself248 3y ago
    Then you get into the peculiarity of "corner crossing", where four parcels meet at an infinitesimal point. Can you cross the corner and not be considered to have trespassed onto one of the other pieces? It's.... tricky.
    - dylan604 3y ago

wesleyd 3y ago

Maine has right to roam, kind of, in a very american way: you can assume you have permission, unless clearly indicated otherwise. This preserves property rights, but only if you want them. Also there is a strong presumption of zero liability for the landowner (AFAIK!), so landowners aren't particularly incentivized to close off their land. All thanks to the hunting lobby, I expect.

ryandrake 3y ago
Yea, I think the liability thing is key, at least in the USA. I have no problem in concept with allowing the public to roam on my property (as long as they're not taking or damaging things), but I wouldn't want to allow it if they could sue me and win because they tripped on a rock or something.
- ghaff 3y ago
  Anyone can sue anyone for anything. I assume that if you trip on a rock or a tree root on a trail on someone's land, suing would be a man bites dog thing--but so could any number of events. Obviously if you deliberately put some hazard of a trail crossing your property, that could be different. (Though probably edge cases--tricky natural hazard on a well-established trail you didn't do anything about.)
volkl48 3y ago
Also the case in New Hampshire and Vermont. And at least in NH there's some tax incentives for leaving your land unposted/open to that kind of access.
- nkurz 3y ago
  Do you know more about the tax incentives in New Hampshire? I'm in Vermont, and wondering if there are established patterns that would work for our town. Edit: I'd love to hear from anyone elsewhere that offers such incentives as to how they are structured.

lozenge 3y ago

It's in the name isn't it? Colonies. There were already people there who shouldn't have any rights to the land.

strictnein 3y ago
Which group of people who were in the Americas had the "right" to the land? The groups that were on the land when Columbus landed? Or the groups that were there when the Pilgrims landed? Or the groups that were there in 1776? For large swaths of the Americas, these are all different groups, many of which seized the land through violence. It's something people like to throw out as an argument, but it falls on its face under the most basic of scrutiny. The entire earth was "stolen" many, many times by this definition, making it nonsensical.
- dghlsakjg 3y ago
  You could start with the ones who were forced to sign treaties under the current constitution under duress, or treaties they couldn't read, or treaties that weren't respected. https://www.history.com/news/native-american-broken-treaties https://www.history.com/news/native-american-broken-treaties

chimeracoder 3y ago

> why didn't the colonies recognize rights of way based on well-established use? Because that would have been at odds with colonists' goals of seizing the land from the people whom it previously belonged to, and who were using it.

b112 3y ago

In Canada, there are so many streams and rivers, lakes, that these are the 'right to roam' areas. There are all sorts of laws for access, and the country was explored by canoe. And in the winters of 200 years ago, the lakes became frozen roads. Yet part of it may also be, that land wss apportioned in large, organized chunks in many cases. Given to settlers, with spaces for roads as part of the plan. Europe had many places where there was no way to get around, for there were no roads!

alistairSH 3y ago
And in the US, access to waterways isn't guaranteed. I'll have to look up the details, but there are sections of the James River in Virginia which are private and the right to privacy was granted in the colonial era.