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19 Geo. Int'l Envtl. L. Rev. 375 (2006-2007)
Britain's Right to Roam: Redefining the Landowner's Bundle of Sticks

handle is hein.journals/gintenlr19 and id is 383 raw text is: Britain's Right to Roam: Redefining the Landowner's Bundle of Sticks JERRY L. ANDERSON* ABSTRACT Britain recently enacted a right to roam in the Countryside and Rights of Way Act (CRoW) 2000. At first glance, CRoW appears to be a dramatic curtailment of the landowner's traditional right to exclude; it opens up all private land classified as mountain, moor, heath, or down to the public for hiking and picnicking. Yet, when viewed in the light of history, CRoW may be seen as partially restoring to the commoner rights lost during the enclosure period, when the commons system ended. CRoW also represents a return to a functional rather than spatial form of land ownership, allowing more than one party to have rights in a particular piece of land. The new law highlights some important public values regarding freedom of access that have been all but forgotten in the United States. The law calls into question U.S. Supreme Court precedent that has enshrined the right to exclude as an essential stick in the bundle of property rights and serves as a powerful alternative to the Court's formalistic notion of property rights. Given the differences in its history, culture, and legal system, the United States is unlikely to follow Britain's lead in enacting a right to roam; nevertheless, the study of CRoW contains valuable lessons for Americans. CONTENTS I. Introduction ............................................. 376 II. Evolution of Public Access Rights in Britain ...................... 380 A. The British Footpath System ............................ 380 B. Impact of Enclosure on Access Rights ....................... 383 * RichardM. and Anita Calkins Professor of Law, Drake University Law School. © 2007, Jerry L.Anderson. The author wishes to thank the anonymous donor of the Drake International Research Stipend who generously enabled this research. This article benefited from the comments of Professors Bob Ellickson and Stuart Banner on an earlier draft. The author was also aided by suggestions from his faculty colleagues who participated in a Drake faculty colloquium, especially by Professor Neil Hamilton. In addition, the author acknowledges the research assistance of Terica Keaton and Aaron Brees. He would also like to thank Drake law library personnel, especially Susan Lerdal and Sherry VonBehren for their energetic, timely, and cheerful assistance in procuring hard-to-find sources. For clarifications of European law, the author thanks Dutch lawyers and friends Wouter Hertzberger and Jan Franken. For acquainting him with European land use issues, the author wishes to thank the Ostling brothers, Fred, Kent, and Paul-Erik, and the author's Swedish sister Marianne Levander. Finally, he offers warm thanks to Susan Anderson for her usual editing acumen. This article is dedicated to Del Knauer, who inspired hath in every holt and heeth.

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