ABSTRACT
American property law venerates the right to exclude. Courts routinely describe it as the essential core of ownership, and scholars treat it as the ‘sine qua non’ of property rights. From the first day of law school, students learn that to own property is, fundamentally, to have the power to keep others out. And yet, American law is rife with doctrines and provisions that authorize or even encourage entry onto private land. This Article examines the legal terrain that lies between the ideal of absolute exclusion and the practical reality of sanctioned access. It argues that American law, while rooted in exclusion, has also developed a countervailing right of access and passage.
Examples are manifest. Several states expressly allow hunters to retrieve dogs or wounded game from private land without permission. Others impose affirmative obligations on landowners to fence or post their land to exclude the public, thereby reversing the presumption against unauthorized entry. Every state has some form of a recreational use statute to encourage landowners to open their land for public recreational use. And common law doctrines like the public trust doctrine, custom, dedication, and prescriptive easements all provide avenues by which private property may become open to public use. Collectively, these provisions and doctrines constitute a distinct – if fragmented and unevenly distributed – strand of American property law. This Article stitches them together to name and analyze what it calls the (limited) American right to roam.
This Article tells the story of the American right to roam in four parts. Part I explores the (near) primacy of the right to exclude in American property law, examining its conceptual underpinnings, historical development, and modern expression. It concludes that even as the legal system consistently reinforces the centrality of exclusion, that principle is often undefined and less than absolute in practice. Part II identifies the sources of the (limited) American right to roam, cataloging permissive trespass provisions, recreational use statutes, and relevant common law doctrines. Part III then constructs a (limited) American right to roam from these disparate components, emphasizing how these doctrines collectively form a modest but recognizable access right. Finally, Part IV outlines the (preliminary) implications of this doctrinal patchwork for courts, legislatures, and the public.
Lyness, Sean, The (Limited) American Right to Roam (February 8, 2026).
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