The Fight for the Right to Trespass

The CROW Act was also time-limited; there is likely less than a decade left during which new access paths can be certified. But the process for adding them is byzantine. To certify a right of way, you have to prove that you’ve never asked a landowner for permission to walk there (which turns a right into a retractable handout); that you have used it for at least 20 years (an accepted stand-in for proof that a right has been earned by virtue of being exercised since “time immemorial,” a period which, because of quirks of English law, officially ended with the death of Henry II in 1189); and that you and others have used the path openly without your right to do so being challenged. Open-access land cannot have been “improved” by agriculture, proof of which often requires expensive certifications by botanists. This can lead to absurdity, says Ashbrook, who likes to walk up a hill near her house in the Chilterns. It looks the same all over, but because of what Ashbrook described as “botanical issues of great detail,” only one side qualified as access land, open for rambling. The other is closed.

To Hayes, it seemed as if all these technicalities undercut the rights that the CROW Act was supposed to enshrine. They made clear that the rules about who owned what and who could go where were cultural and historical artifacts, not laws of nature. They were just choices.

Another approach was visible just across the border. In 2003, the Scottish Parliament passed a land-reform bill that recognized the uncontested right to walk, camp, cycle, swim, canoe and perform any other form of nonmotorized exploration throughout the country. Known as the “right to roam,” it came with a code of responsibilities: Access didn’t apply to private gardens immediately around houses or to fields in active cultivation, and people were expected to clean up their litter and dog poop, to cook on stoves instead of open fires, to avoid rock climbing near nesting birds, to close gates behind them and so on. But it was clear and direct and not even unique to Scotland. Similar systems had long been in place in other European countries, including Finland, Norway, Iceland, Austria, Latvia, Estonia, Lithuania, the Czech Republic and Switzerland. In some cases, the right was considered so old and so fundamental, so obvious, that for a long time no one bothered to codify it. In Sweden, the tourism board developed an ad campaign around the allure of what the country calls allemansrätten, or everyman’s right. “It’s a right protected by the law that allows me to sleep and eat and walk pretty much wherever I want,” the voice-over explains. “Now you can, too.”

As Hayes began researching land ownership, he came across the work of Guy Shrubsole, an environmental campaigner who, in an effort to find out who owned the land whose management practices he was worried about, had spent years filing records requests and poring over maps, writing a blog and later a book called “Who Owns England?” In answering the question, Shrubsole painted a stark picture of inequality and secrecy: Only 5 percent of the country was owned by ordinary householders. Large chunks were held by corporations and by the aristocracy and gentry, often following boundaries that were relics of the land divisions and gifts made after the Norman Conquest in 1066. (The Land Registry does not track land using these categories.) “A few thousand dukes, baronets and country squires own far more land than all of middle England put together,” Shrubsole wrote. He cited a remark by the late Duke of Westminster, who advised aspiring entrepreneurs in Britain to “make sure they have an ancestor who was a very close friend of William the Conqueror.” If you wanted to know how much of England’s land offered no right of access, even to ramblers, even after the CROW Act, the answer was 92 percent.

“Property,” Shrubsole told me, “isn’t really a thing. It’s a bundle of rights,” a series of possible actions that are associated with tracts of land but that can be severed, bought, sold and expanded or curtailed by the specific legal codes that govern that land. This was why you hear people speak of mineral rights or surface rights or water rights or commoners’ rights or treaty rights, which in the United States often include ongoing rights to fish, hunt and gather on land that tribes no longer control. “Part of that bundle of rights in England for the last several hundred years has been the right to exclude other people from your land,” Shrubsole says. “The thing is, that’s not always the case in every country, and even in other liberal, capitalist democracies.”