The Right to Exclude from Unimproved Land
Volume 83, No. 3, Spring 2011,
By Brian Sawers [PDF]

In Kaiser Aetna v. United States, the Supreme Court characterized the right to exclude as “one of the most essential” and as “universally held to be a fundamental element of the property right.” The Kaiser Aetna opinion has spawned a whole jurisprudence of exclusion. Scholars have accepted the notion that exclusion is inherent in a regime of private property; the only remaining question appears to be whether the right to exclude is the seminal property right. This Article argues that the current debate is incomplete because no distinction is made between the city and the countryside.

While state law distinguishes between improved and unimproved land, scholarly comment does not. Unimproved land is land without buildings or standing crops, even if fencing or clearing has changed it from its natural state. (A building’s curtilage is considered improved, even if a landscape architect could improve upon it.) Constitutional jurisprudence and scholarship should distinguish between the home and the field.

This Article argues that the states are free to expand or contract the scope of public access to unimproved land. In support, this Article makes three related claims: first, that a careful reading of precedent does not prevent the states from expanding public access to unimproved land; second, that public access is consistent with American history; and, third, that public access is consistent with private property in the modern world.

In many parts of Europe, the public’s right to roam is considered vital to a system of private property rights. Similarly, in the early United States, the right to roam was considered important; it was no mere license to roam lands unworthy of policing.

Part II of this Article addresses Kaiser Aetna and subsequent cases that discuss the landowner’s right to exclude. Part III shows that the right to exclude is a relatively recent development in American law. Part IV provides some comparative perspective, showing that a modern right to roam is consistent with private property. Part V argues why states should expand public access to unimproved land.

Legal scholarship is full of academic questions, but why does this one matter? Firstly, “no other [property] right has been singled out for such extravagant endorsement by the Court.” Secondly, the U.S. Supreme Court has treated the right to exclude as a core element of property, beyond any state’s power to regulate. States are deterred, therefore, from expanding public access out of fear that Kaiser Aetna and its progeny prevent them from doing so.

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