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Comment by Alex63 | Hacker News Reader

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.

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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.

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.

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.)

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.

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.

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

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.

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.

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.

you must be a really really bad neighbor for anybody to get to "how many angels can dance on a pin head" levels your proposing.

or you can make it a national park and put a surveyor's mark for people to come and visit.

https://www.themeateater.com/conservation/public-lands-and-w...

TIL this is a real thing. I thought it was a HN thought experiment.

It only gets tricky when there are wealthy landowners seeking to monopolize public game lands they have surrounded by private property, otherwise it’s pretty clearly acceptable to cross.

Yeah. I live in at least exurban area and I have some specific easements I negotiated when I bought. And, in practice, I have more. But if the neighboring owner really wanted to put up some barbed wire fences or the one or two owners along the river walk I often take outside of conservation land really wanted to clamp down, I'm pretty sure I wouldn't have legal options.

Per another comment, some of it at least is that many people really don't want hunting (or destructive off-road vehicles) on their land but have no problem with the occasional person taking a walk on a more-or-less established path.

Even in the UK, I've had an issue with something basically identified as an item of interest on an OS map and getting yelled at for sticking my nose in a gate.

WA state has a private way of necessity [1] (edit: i had the wrong word here). If my land has no access except through your land, you may not deny me access. Although you're welcome to attempt to negotiate with me to get to something that works well for both of us, but if not, I can do something reasonable.

WA also has easements by traditional access, but it seemed pretty limited and easy for property owners to avoid, when I was looking into it.

[1] https://app.leg.wa.gov/rcw/default.aspx?cite=8.24&full=true

Most people I know in these situations that are neighborly will chip in to the neighbor that "owns" the access to help maintain that access.

Although my understanding (through some personal experience) is that e.g. in Maine it's OK to have only water access. May not still be true but seemed to be in a case I was familiar with.

It's a little more tricky than that. There are implicit public easements that get created merely by a path being open and commonly used. That's pretty close to the right in the UK.

If you can show that you've been using a specific path for years the owner of that path can lose rights to block access. This is why you see some land owners putting up no-trespassing signs and jealously guarding their land and access. They don't want to lose the ability to effectively control their paths. IIRC, this is a common law thing. It's a bit like trademarks in the sense that land owners need to guard their land otherwise they lose a chunk of it.

The squishiness here is I don't think there's a specified amount of time before the public easement is granted.

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.

Suburban resident here. We have easements for local hiking trails as they cross through private property :)

I suspect that most "real" hiking trails in the US that are not on public land have formal easements of some sort. I observe that around me the trails on conservation land are marked on digital maps and the informal trails on private land are not.

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).

Also the UK is more "historically dense" than much of the US was (and is!).

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

[2] https://en.wikipedia.org/wiki/Commentaries_on_the_Laws_of_En...

[3] https://press-pubs.uchicago.edu/founders/documents/v1ch16s5....

This is an argument against eminent domain (which the US still has), not free access to private property.

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...

> 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.

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!

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.

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

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.

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

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

> 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.

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