‘Any friend of mine walks where he likes in this country, or I’ll want to know the reason why.’
– Mr Badger in The Wind in the Willows[1]
The assumption of the right to exclusively own property is fundamental to our lives. But a model where private land is the overwhelmingly predominant form of ownership neglects the desire and need in most people for a relationship with the land now lacking in England. Common land was standard in England until the introduction of the 18th century enclosure acts[2] which granted landowners the right to exclude the public from common land. ‘Land today is classified according to one main characteristic: ownership.’[3] Open access land makes up 8% of all land in England[4] and a small portion of this land is in fact encircled by private land with no public right of way and hence not exactly ‘open access’.[5]
In the west of the US, this problem of access is far more prevalent. ‘Checkerboarding’ of land is widespread where squares of land owned by private landholders combine with squares of public land to form a strange checkerboard pattern. It is an unintended legacy of a 19th century solution the American government came up with to finance railways without monetary payment. Land recently taken from indigenous tribes and therefore unpopulated was given to railway companies to build railway lines, helping to settle the west, but it was given in checkerboarded squares so railway companies could not sell this land to rich landholders in large parcels.[6] The government assumed these squares would dissolve into settlements. But today, the checkerboard still remains, starkly visible on satellite images.
However, ‘checkerboarding’ is not merely an odd feature of the landscape. In national forests for instance, environmental management is made at best difficult and at worst dysfunctional by the break-up of forest by inholdings owned by commercial forestry industries. Access of public land has also become problematic. Cases have been filed over ‘corner crossings’ which debate whether crossing at intersections of public and private land squares constitutes trespass over someone else’s airspace. Approximately 13,000 square miles of land in the USA are considered to be ‘corner-locked’ and inaccessible,[7] far more of an issue than in England. Ironically, just shy of half of this corner-locked land is one square away from being perfectly accessible.[8]
Our understanding of what land ownership is can lead to harmful effects. In ownership rights, ius abutendi, the right to exercise total dominion over property[9] without being accountable to anyone,[10] or in other words the right to abuse it, forms a central part of the rights of a landholder. However, with regard to land, this right conflicts with the notion of sustainably governing resources and also of integrating environmental limits in policy-making.[11] Environmental destruction by landowners is also not just hypothetical: for environmental devastation of some Sites of Special Scientific Interest and other parts of the River Lugg in Herefordshire in trying to straighten its course, a landowner was jailed.[12] The UK is already one of the most nature-depleted countries in the world largely owing to the denuding of the countryside by landowners, the supposed custodians of the land, whether by: getting rid of hedgerows or aggressive farming practices destroying the soil; sustaining grouse moors in Scotland and sheep farming in Wales; or mere obsession with the suppression of anything wild on the UK’s numerous verges. I would strongly encourage you to read both Benedict Macdonald’s Rebirding and Guy Shrubsole’s The Lost Rainforests of Britain before coming to an opinion on why exactly the UK suffers so much from nature-depletion. But it is certain that some landowners are acutely damaging the environment and cannot be expected to want to halt their behaviour.
The idea of having swathes of ‘common land’ appears to have fallen into disuse. What has resulted from the decline of common land has been the eradication of a way of ‘seeing and understanding land defined by features and processes’.[13] Land has been disconnected from its geography. The decay of common land has left society as ‘a sick culture’.[14] Roughly 3.5% of the land area of England and Wales is officially designated as ‘common land’, but 88% of all commons in England and Wales have a special national or even international designation for landscape, wildlife or archaeology.[15] It seems that ‘landless people [are] doing a far better job of stewardship.’[16]
Once again, the desire for common land is not a mere hypothesis. Examples of community-purchases of land is happening more frequently. But of course, land is used not solely for the protection of wildlife: 8.8% of land is built on while 10% of land in England is used for forestry and 73% of land is farmland.[17] However, owing to poor conditions, it is estimated that 21% of this farmland could stop being farmed with only a 3% drop in production.[18] Having large chunks of community-bought land need not be harmful to our food security. Moreover, trespassing – ‘any unjustifiable intrusion by a person upon the land in the possession of another’[19] – is widely being encouraged by environmentalists and nature writers, which goes against the very reason why people want to own private property. The issue of the disappearance of common land is really an issue, with manifest effects for those without land and for those who have to tediously deal with trespassers.
Private land is foundational to modern society. The first laws over real estate in England, replacing the feudal system as the primary bond which ordered society, developed as early as between the 1150s and 1215.[20][21] There is no doubt that private ownership of land has merit. A ‘de-territorialised world’[22] is by no means desirable or really possible. However, common land is similarly desperately desired and needed. Ius abutendi regarding land ownership needs to be disposed of if the UK is to not continue to be one of the most nature-depleted countries in the world.[23] At heart, there is an innate desire in humans to reconnect with the countryside and enjoy it which is severely hampered by both its size in the UK and also, as shown by the American example of ‘chequerboarding’, its distribution.
Bibliography
[1] Taken from the start of: Nick Hayes, The Book of Trespass: Crossing the Lines that Divide Us (London: Bloomsbury, 2020)
[2] Numerous enclosure acts were introduced over a stretch of over three centuries from 1604 in England, but the 18th century, especially in the latter half marked by the act of 1773, I would argue is when these laws came into large-scale effect.
[3] Amanda Byer, Placing Property: A Legal Geography of Property Rights in Land (Cham, Switzerland: Palgrave Macmillan, 2023). An online copy can be found here: https://link.springer.com/content/pdf/10.1007/978-3-031-31994-5.pdf#page13
[4] https://www.theguardian.com/commentisfree/2022/aug/17/england-public-trespassing-reclaim-our-countryside#:~:text=Although%20only%20about%208%25%20of,are%20accessible%20to%20the%20public.
[5] https://www.bbc.co.uk/news/science-environment-68278444#:~:text=In%20England%2C%208%25%20of%20land,access%20islands%22%20is%20to%20trespass
[6] https://www.zocalopublicsquare.org/2023/08/08/american-west-checkerboard-land-ownership-problem/ideas/essay/
[7] https://www.onxmaps.com/onx-access-initiatives/corner-crossing-report#:~:text=Corner%2DLocked%3A%20By%20The%20Numbers,-Corner%2DLocked%20Acres&text=Beyond%20these%20corners%20lie%208.3,of%20corner%2Dcrossing%20remains%20unclear gives some very good figures. I took their estimate of acres and converted it to square miles.
[8] Ibid
[9] https://www.oxfordreference.com/display/10.1093/acref/9780195369380.001.0001/acref-9780195369380-e-1094
[10] Guy Shrubsole, The Lie of the Land: Who Really Cares for the Countryside? (Glasgow: Haper Collins UK, 2024)
[11] Amanda Byer, Placing Property: A Legal Geography of Property Rights in Land (Cham, Switzerland: Palgrave Macmillan, 2023)
[12] Guy Shrubsole, The Lie of the Land: Who Really Cares for the Countryside? (Glasgow: Haper Collins UK, 2024)
[13] Amanda Byer, Placing Property: A Legal Geography of Property Rights in Land (Cham, Switzerland: Palgrave Macmillan, 2023)
[14] https://www.theguardian.com/commentisfree/2022/aug/17/england-public-trespassing-reclaim-our-countryside#:~:text=Although%20only%20about%208%25%20of,are%20accessible%20to%20the%20public
[15] https://assets.publishing.service.gov.uk/media/5a80828aed915d74e33fad78/common-land-consents-policy.pdf coupled with: Guy Shrubsole, Who Owns England? How we Lost our Land and How to Take it Back (Glasgow: William Collins, 2020) produces a rough estimate of 3.5%. The rest of the phrase can also be sourced to the former.
[16] Guy Shrubsole, The Lie of the Land: Who Really Cares for the Countryside? (Glasgow: Haper Collins UK, 2024)
[17] Ibid
[18] Ibid
[19] Nick Hayes, The Book of Trespass: Crossing the Lines that Divide Us (London: Bloomsbury, 2020)
[20] S.F.C. Milsom, A Natural History of the Common Law (New York: Columbia University Press, 2003)
[21] Robert C. Palmer, ‘The Origins of Property in England’, Law and History Review Vol.3 No.1, Cambridge University Press, 2011
[22] Ibid pg 2
[23] https://researchbriefings.files.parliament.uk/documents/CDP-2024-0101/CDP-2024-0101.pdf
