Erick Kaardal*

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 won!

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" to trespass.

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 training.

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 rights.

* Erick Kaardal is an attorney in the Minnesota firm of Trimble & Associates. He is Vice Chairman of Publications for the Environmental Practice Group.