Rambling and Trespass

July 28, 2018

For a big chunk of my life I hung out with a lot of Dutch people (mainly in Africa.)   When traveling together in the USA, my former partner, a Dutchman, was always looking for the shortest way from A to B and often suggested cutting through yards or farms or such places to get somewhere.  I was aghast—explaining that we couldn’t possibly trespass across someone’s property.  He thought it was ridiculous to worry about taking a little shortcut. I stressed it wasn’t—thinking all the time about shotguns and keeping my eyes peeled for posted warnings.

 

My hyper-vigilance about trespass extended to a major problem of American cities—the lack of bathrooms.  He’d suggest just going into a shop or restaurant and I would suggest we could only use the facilities if we bought something or ate.  (Starbucks has by and large solved this problem, at least for this white, middle-aged lady who can get away with just about anything.)

 

My indoctrination on the sanctity of property values isn’t unusual for an American.  I was at a PLPR conference some years ago at which a law professor (she will remain unnamed) was crowing about her astonishment at ability to walk all over people’s private property in much of the UK and most certainly in Scotland.

 

Rambling, it is called.

 

 

I didn’t know much about this right.  I actually rather thought it existed all this time, just one of those more civilized elements of British society relative to our own.  I was wrong.  My current favorite podcast (and there are so many great podcasts) 99 Percent Invisible did a great segment on winning the “right to roam.”  It can be found through this link: https://99percentinvisible.org/episode/right-to-roam/.  The story is much more inspiring than you might think.  Essentially following the Enclosures (read privatization of the commons for the sheep of the wealthy) and subsequent to industrialization, factory workers had very little opportunity to get out to nature.  They were literally trapped in terribly polluted cities.  Early walking clubs existed, but they needed to evade the aggressive game keepers of the major estates.  Long story short, a united front of workers and the will to trespass won the right to roam that UK residents enjoy today.

 

(Where would Bill Bryson be without it.)

 

Our obsession with private property in US society is actually a fairly new development.  I learned this through a book that I have used in my land use law class for the last 6 or so years (named The Land We Share) by Eric Freyfogle, of UIUC’s law school.  He shows that notions of common property were very, very strong in the early republican period in the USA—embodied in conceptions of who owned wildlife, but also who had the right to glean from private lands.  It was only once we got to industrialization and the aligning of the courts with land users who are making much more aggressive use of the land that we see the concept of what constitutes nuisance change as well as the emergence of stronger embrace of individualization and the loss of communal rights.

 

 

 

The retreat from the commons—especially the questioning of the legitimacy and importance of the public realm—is worrisome.  We see it in attempts by ranchers to claim the public land and parks as “their” land.  We see it in discussions on public monuments and in the delisting/reduction of monuments like Bears Ears.  Rapacious industrialists have a friend at the White House, Interior and at the EPA (even without Scott Pruitt.)  See:  http://www.chicagotribune.com/news/nationworld/science/ct-trump-zinke-national-monuments-20180723-story,amp.html.

 

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Last Updated:  18 May 2020