Back in the day, my wife and I used to hike Colorado’s “14ers” — mountains with summits 14,000 feet or higher. We got to a trailhead brutally early one morning to find a gate and a mining company’s sign warning us off.
Seriously — how can somebody own a mountain?! Or put up a sign telling you kids to stay off my lawn?
Another car was parked nearby, empty. They’d obviously ducked the gate. We met them at the summit.
We’d heard rumors of this. Not long after, it made the headlines. A couple years later the sign and gate were gone. Chalk up a win for Mother Nature and wide open spaces, for a change.
At the time, I’d been in law school long enough to spot a handful of legal issues. One was the notion of “the general welfare,” expressed in the Preamble to the U.S. Constitution:
“We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.”
Hiking up to the view from the top of a 14er promotes the general welfare, no doubt. On the other hand, the mining company’s lawyers were afraid of compromising its private right to buy, sell, own, rent, and otherwise use and profit from land. Which raised a second legal issue: the doctrine of “adverse possession”:
“Adverse possession is a legal theory under which someone who is in possession of land owned by another can actually become the owner if certain requirements are met for a period of time defined in the statutes of that particular jurisdiction. Adverse possession was historically used as a means of encouraging people to bring unused or uninhabited land into productive use.
“In past centuries in England, a person who farmed otherwise unused land for a long period of time could be rewarded with title to that land for helping to provide food to the hungry nation. In America, the adverse possession theory was often used to encourage settlers to move onto frontier properties and occupy and improve them in exchange for ownership of the land. This has evolved into the modern day theory requiring a set of common conditions to be met for a period of time, which is defined in the law of a particular jurisdiction.”
Tilling fallow ground to feed the hungry benefits the general welfare, but nobody was going to till a 14,000’ mountaintop. Still, the mining company didn’t want hikers tapping its gold and silver veins. Which raises a third legal issue: the “freedom to roam.”
“The freedom to roam, or “everyman’s right”, is the general public’s right to access certain public or privately owned land, lakes, and rivers for recreation and exercise. The right is sometimes called the right of public access to the wilderness or the “right to roam.”
“In Scotland, Finland, Iceland, Norway, Sweden, Estonia, Latvia, Lithuania, Austria, Czech Republic and Switzerland, the freedom to roam takes the form of general public rights which are sometimes codified in law. The access is ancient in parts of Northern Europe and has been regarded as sufficiently basic that it was not formalised in law until modern times. However, the right usually does not include any substantial economic exploitation, such as hunting or logging, or disruptive activities, such as making fires and driving offroad vehicles.
“In England and Wales public access rights apply only to certain categories of mainly uncultivated land.”
I wanted my “freedom to roam” that morning, and ducking the gate was a crude way to balance public benefit and private rights: the mining company could have all the gold and silver it wanted (their mine was hundreds of feet downslope — my brother-in-law worked there), it was safe from anybody trying to turn its claim into food for the hungry, and I was in it for the “recreation and exercise” — and the vast, stark, unforgiving beauty, and (if the wind ever stopped blowing) the immense solitude and silence that makes you feel about the size of a microbe. (Roaming in the wilderness will do that to you. No wonder it’s a public right.)
Economic and legal analyses make finding that balance much more complicated, of course, and whoever wrote this Wikipedia article did a nice job of distinguishing among terms of art like the general public good, specific public goods, general societal welfare, common goods, the public interest, etc. For our purposes, we’ll just note that some things about life on this planet benefit everybody, and for them we need to balance private and public benefit (ownership, use, enjoyment, access, rent, etc.) and cost (development, maintenance, preservation). Finding that balance has also become the basis of a wide and widening economic generation gap.
More on that next time