Freedom to Roam
- Thread starter Emily27
- Start date
I think the answer is "it depends." Negligence (another classic tort) requires proof of damages, but trespass does not require that (but look up "de minimis non curat lex"). I am a bit of nerd about this and once looked closely at whether pollen from trangenic corn drifting onto a neighboring organic corn field might be a trespass. The Martin v. Reynolds case (involves airborne deposition of flouride particles from an aluminum plant on a neighboring farm) is interesting and provides a good overview:
"In every case in which trespass is alleged the court is presented with a problem of deciding whether the defendant's intrusion has violated a legally protected interest of the plaintiff. In most cases the defendant's conduct so clearly invades the well established possessory interest of the plaintiff that no discussion of the point is called for. But where neither the defendant's conduct nor the plaintiff's use fall within the familiar trespass pattern of the past the courts are faced with a preliminary inquiry as to whether the plaintiff has a protectible interest under the law of trespass. This in turn calls for the inquiry as to whether the defendant's conduct was such as to constitute an invasion of that interest.
In some cases the solution can be based upon the ground that the defendant's conduct is not substantial enough to be regarded as a trespassory intrusion. Thus, the casting of a candle beam upon the screen of a drive-in theater would not constitute an actionable invasion, simply because the intrusion is so trifling that the law will not consider it and the principle de minimis non curat lex is applicable. In some cases the solution may be arrived at by admitting that the intrusion is substantial but refusing to recognize that plaintiff has a legally protected interest in the particular possessory use as against the particular conduct of the defendant."
Martin v. Reynolds Metals Co., 221 Or. 86, 95, 342 P.2d 790, 794 (1959)
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BINGO!!
Oh! I can't believe I forgot this recent thread too! This proposed bill (that thankfully did not pass) would have restored property rights to owners of bankside property on many Montana streams by restricting the freedom to roam, but I suspect that the vast majority of people in this thread/on the forum would have been disappointed/angry if it passed, even though by the views some have expressed it feels like they should have been in full support of its passage. I'm curious about what makes this different in people's minds than expanding the freedom to roam in other contexts? is it just because it is normalized/been around longer? Or Montana is a more rural state so much of the land this applies to is undeveloped so people are less concerned? If identical stream access laws to Montanas were proposed in Washington and Oregon would you support them?
In my book, they’re not the same.
Giving new, increased, or enhanced rights over what currently is in practice is very different from maintaining those rights currently in place. And being opposed to stripping existing rights does not require one to be in favor of those new, increased, or enhanced rights.
Personally, I’m ok with property owners keeping folks off of their land. It might suck that their doing so limits access to public waterways, but it’s their legal right. I think governments should restrict ownership to mean tide line or waterline, though, and create and enforce easements so that public waterways aren’t cut off by being surrounded by private land. If folks want to raise oysters on tideland leased from the state or DNR or whomever, that’s up to the government agencies involved. If I step into a river from an allowed access point, and the water covers where I’m walking or erases my boot prints, I don’t see that as affecting the property any more than my floating by it in a boat.
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That's really a really interesting perspective, why do you think time in place changes the level of support you have for a policy over your opinion of the policy itself? Are there other situations where you think historical precedent/weight can outweigh your personal support for policy change?
It's not so much time in place as it is other rationale.
If I buy a riverfront property, I’m buying it expecting to own the property as it exists when I buy it under the conditions it exists, and expecting to exercise the rights that said ownership grants. I evaluate the available properties and eventually select the one that best suits. I don't own any riverfront, but I generally believe people should get what they pay for.
If laws are proposed that seek to remove or limit some of those rights, then I stand to lose some of the value I place on that property and some of what I purchased. It may even be the case that I lose the very reason I bought such a property. I would be opposed to such legislation. Even if I don't own riverfront, I may very well oppose legislation that strips folks of what they owned. For example, I would very much have opposed the crap that happened at, and continues to happen in regards to, Celilo Falls--even though I would stand to personally benefit from the electricity and not directly lose much as I don't live near nor would I have fished there. On the other hand, when my childhood "next door" neighbor (15 acres away) wanted to continue burning dental waste and plastic (horrible stink and I'm sure fairly toxic, btw) and dumping used motor oil into his lawn 10' from a salmon stream, and the county instituted regulations limiting that shit, I'd be (and was) all for it.
If laws are proposed that seek to grant me more rights over my property, bully for me. If those rights are opposed by the public, that's up to the voters, lawmakers, and courts to work out. Pebble Mine comes to mind.
wetline dave
Steelhead
If public lands are surround by private property Then the appropriate government entity should create a means for public access. As it now stands land owners that surround public land essentially control the land as if they own it. That goes for stream access also and that is just wrong as is the usurping by private individuals and or corporations stealing public land for their own use, and theft is what it is.
As far as just allowing people to trapes on private property is another issue all together. To access a stream vis a proper access of public land by agreed egress and access points is fine and should be the norm. Just to wander around is not acceptable in my view of things.
Public land are public and belong to everyone.
Dave
As far as just allowing people to trapes on private property is another issue all together. To access a stream vis a proper access of public land by agreed egress and access points is fine and should be the norm. Just to wander around is not acceptable in my view of things.
Public land are public and belong to everyone.
Dave
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I grew up in a time in the western US in which a knock on a door would grant you access to hunt and fish on private property. Slowly over time, gates got left open, fences were damaged, trash was left behind, fields were driven through, and even cattle were shot. The abuses of the general public started a trend towards limiting access, and the wealthy fleeing the urban areas for their own piece of paradise finished it off. It saddens me to see this all happen in my lifetime, but I would not support forcing landowners to let people roam their property.
I owned some riverfront downstream from Frenchtown in MT. What you described above only took 10 years, not a lifetime, to happen to me. I fully supported access through the property. Sign said "Please park on the bench and walk to the river."
I also am pleased there is no Adverse Possession in MT. Just because there has been access for decades to lake/stream/river does not mean the public has a claim to access from then on. The landowner always has the right on determining access in MT.
Paths developed in the fields where a road/trail was available to use. Trash was increasing year by year. Fencing was torn down. Gates with posts were ripped out of the ground, literally. Cameras blasted by shotguns. Signs cut down with chainsaws. There must of been 4-wheeler races on the property. What topped it all off was someone parked their vehicle near the river and their exhaust set a fire that covered more than 5 acres.
I got lawyers involved. While trying to sell the property, neighbors would get on their 4-wheelers and were obnoxious when the property was being shown. I talked with my realtor and asked him to look into giving the property to the county or state. Found out it would cost more than what it was worth to do that. Finally sold it - best thing I ever did...
Westfly Refugee
Steelhead
Emily27,
Those laws, which I experienced in far NW Ireland are the result of millennia of culture regarding 'the commons.' You may pass through, but that's all.
(I never once saw a 'No Trespassing" sign in NW Ireland. When I asked for permission to see certain places or cross pastures the persons I asked thought I was being silly)
That culture of 'the commons' is in direct contrast to this nation's concept of private property. Never the two shall meet.
But they already do meet in some places, such as the Oregon Beach Bill or stream access laws, I'm wondering what it would take to expand it further.
DerekWhipple
Steelhead
It would have to be a culture shift. This country was founded with property ownership being a key part of the American concept of "freedom". Now add on to that every property owner in the US is a land speculator obsessed with their property value these days. The pendulum is currently swinging away from doing things for "the public good". There is no way any of those bills would pass today.
Yeah, It's not a great political climate to question which rights property owners have, makes me kind of sad though it seems like the majority of people recognize most current infringements as relatively good things such as restricting dumping like @Jake mentioned or stream and beach access laws, I feel like it would be cool if people could recognize property more from this perspective rather than as one inalienable right.
Maybe I'm just selfish though, my interest is really coming from all the really cool pools and runs I can see on google earth but can't access because some logging company has land there.
Would a similar opposition apply to dam removals? Would you oppose a dam removal because landowners bought lakeside property, and their property value will certainly fall post-removal? Is there a point where you think the potential public good outweighs the landowners potential loss?
When I lived in Utah and would fish the Weber R., I would use access granted the public from a unique State program. The Fish and Game would pay landowners and install fence steps to access the river. It seemed to keep everyone happy..
DanielOcean
Fart! : )
I have made the mistake of un intentionally stepping on some ones property and they pulled a gun on me. While that really sucked. I think it is important that property and its owners rights should be respected. If I spent my life working my ass off to have this beautiful river side property and some free loader wants to stomp on my hard earned property, I can understand the frustration. With all that said, if I ever do have such property I do not intend to go waving pistols like a dumb ass.
Yes but suburban, so not really applicable to this conversation, even so, I don't really mind when kids in my neighborhood run through my yard or workers for the city or utility companies come into the backyard without asking to check meters or do powerline maintenance. I recognize that some loss of rights on my part helps the public good as a whole, so it's just meh I don't really care.
if I lived on a more rural property I would be fine with people coming on it if I owned like a couple square miles of woods with a creek in it for instance and people came on to fish or hunt I wouldn't mind.
If I were to answer my own original question I would probably be cool with a bill that just said people are allowed to recreate on any undeveloped (excluding roads and paths) and uncultivated land without the permission of the landowner, as long as they remain "x" distance from obviously developed or cultivated land.