State legislative property rights advocates, beware! Imagine your
state's landowners without any recourse against ordinary trespassers
such as hunters. First, peace officers would stop responding to
landowner complaints about trespassers. Second, trespassers, understanding
their new position vis-a-vis landowners, would begin entering more
and more private land. Soon, the ownership of private land would
no longer offer the peace and solitude it once did. So much for
the American dream.
This hypothetical scenario is well on its way to being realized
in Minnesota. The main culprit in bringing it about: state statutory
preemption of common law property rights. The Minnesota State Legislature
has codified the rights of landowners and trespassers; and the trespassers
Before we analyze the state trespassing statutes we should remind
ourselves of the virtually perfect common law rules relating to
trespass developed through hundreds of years of judging by American,
and their predecessor English, judges. First, a person who enters
private land without title or an interest entitling him to do so
is a trespasser. Second, a person is not a trespasser, even though
he otherwise would be, if it is necessary for him to enter the private
land out of necessity to save life or property.
The benefits of these rules are obvious. First, in almost all cases,
certainty exists for landowner and trespasser. Unless a necessity
exists, entry is a trespass. If a trespass occurs, the landowner
calls the peace officer. Case closed. Second, and most importantly,
private property is the foundation of liberty. Without laws and
governments enforcing private property rights, we cannot be free.
Minnesota statutes have changed all that. In Minnesota, the state
legislature permits entry onto non-agricultural private land without
prior permission unless the land is properly posted. Minn. State.
§97B.001 states in part that,
A person may not enter for outdoor recreational purposes any [non-agricultural]
land that is posted . . . without first obtaining permission of
the owner, occupant, or lessee. [Emphasis added]
The result of the statute is that the virtually perfect common
law rules of property rights are preempted. Now a person can enter
someone else's property without permission. In a true and realistic
sense, the statute violates this nation's common law property rights
tradition and the natural law by granting individuals the "right"
The problem with any attempt to codify common law property rights
is evident in Minnesota's example. A straightforward syllogism will
explain. First, landowners cannot possibly have a better set of
legal rules than traditional common law rules regarding trespass.
Second, any legislative reform relating to common law trespass will
preempt the common law by either reducing the initial property rights
landowners have or by modifying the necessity defense. The conclusion
of the syllogism is landowners will never be better off with any
statutory codification of their common law property rights.
The syllogism made is defensible. The two common law rules respect
private property in the right proportion, moderation. The necessity
defense offers the judge an opportunity to avoid an absurd result
by a straight application of the general common law rule of prohibiting
trespass. Examples would be an entry, that would otherwise be a
trespass, which saves a boy's life or a herd of cattle. No reasonable
landowner could object to this narrow exception to his otherwise
absolute right to exclude.
Codification of common law property rights invariably leads to
preemption of common law property rights. How can it be avoided?
The issue, all of a sudden, becomes one of statutory interpretation,
not common law precedent. Further, the statutes themselves may expressly,
as in Minnesota's example, attempt to take common law property rights
of landowners away.
The conclusions of this article are not obvious, particularly in
the context of the liberal judges that dominate many state court
systems like Minnesota's. The first reaction of a state legislator
and property rights advocate to a liberal judicial decision, for
example, expanding the necessity defense, will be "Let's pass
a statute and restrict the latitude of the state judge to expand
the necessity defense." So the statute is passed defining the
necessity defense and it may restrict the liberal judge next time
(but probably not), but it may also prevent a conservative judge
from obtaining a just result. The state legislator just can't do
any better than doing nothing and leaving the common law alone,
even if the court system is dominated by liberal judges.
Of course, the discussion here must be distinguished from state
legislative initiatives to interpret the Constitutional principle
of just compensation for takings by physical appropriation and by
regulation. Those efforts are different than the ones discussed
here. Any statute which assists landowners in realizing his Constitutional
rights to just compensation for a government taking is a noble effort;
whereas codifying common law property rights is a mistake.
So what is left to do in this area of common law property rights
for our state legislative and property rights advocating friends?
First, consider running for Governor so you can appoint good common
law judges. Alternatively, enlist someone else of our persuasion
to run. The judges to appoint are ones who would perform well according
to the 19th century American common law tradition without any additional
Second, if being Governor is not in the cards, you should attempt
to initiate, by legislation, mandatory remedial property rights
training for your state's judges. If some judges are by law required
to take diversity training, why not a course in private property
rights - the foundation of our liberty? Ensure that the instructors
cover the basic common law.
Third, develop a strategy to assist wronged landowners in bringing
their cases to court so your state can develop a sophisticated body
of case law concerning property rights.
Fourth, join the Federalist Society Environmental Law and Property
Rights Practice Group and network with others interested in property
* Erick Kaardal is an attorney in the Minnesota firm of Trimble
& Associates. He is Vice Chairman of Publications for the Environmental