The Right to Exclude as a Property Right

Jerry L. Anderson (Drake University Law School) has posted Comparative Perspectives on Property Rights: The Right to Exclude on SSRN. I found it fascinating article on a comparison of the right to exclude others from your property as a very American property right that has its limitations here and is not as true world-wide.

I was familiar with the Loretto v. Teleprompter Manhattan CATV Corp. It was one of the few Supreme Court Takings cases that is straight-forward in its rule and application. If the government forces you to allow someone to place something on your property, no matter how minor, this is a taking and requires compensation.

Professor Anderson compares this to Britain’s Countryside and Rights of Way Act of 2000, which declares private land that contains mountain, moor, heath or down to be “open country” on which the public is free to enter. Madonna had an issue with the public entering her 1000 acre estate in South Wiltshire. It seems her American sensibility of the keeping people off your land does carry across the Atlantic when she adopted her British accent.

The one part of the article that threw me off was Professor Anderson’s attempt to link American obesity to the lack of access. “Perhaps the right to exclude also plays a role, by increasing the difficulty of walking from one place to another and by placing some of the most inviting territory for a hike off limits. Would it make a difference if you could start a hike by simply hiking across the fields near your house, rather than having to drive to a park or nature preserve many miles away?”

Thanks to Ben Barros at the Property Prof Blog for pointing out this article.