Property Rights

Maine Lawmaker Targets Foragers on Private Property

Should advanced permission be required, or should land owners post signs?

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foraging
Tamara Kulikova / Dreamstime.com

When I was a young kid, and I'd hop my neighbor's fence to pluck a handful of Concord grapes that grew on a vine in their yard, I knew three things to be true.

First, the grapes tasted fantastic. They were much more plump and earthy than what passes for grapes at the grocery—and their seeds made for the perfect projectile to spit at friends. Second, I wasn't doing any harm at all to the neighbor's grapevine by picking a few ripe grapes. Third, I was trespassing—and in a manner that differed markedly from the occasional going to retrieve a foul ball sort of trespass. I was trespassing and—because I never asked my neighbor's permission, at least until I was older—I was also stealing their grapes.

I don't think I was a particularly perceptive child, but what a kid who spat grape seeds at his friends knew in the early 1980s still seems like a pretty good rule. Taking food from other people's property—just like taking their lawn gnome, ladder, or chainsaw—is theft.

As I later learned, the right to exclude others from one's property is a fundamental feature of property ownership and a central concept within property law. You'd think the law would embrace this common-sense thinking. But it doesn't always. And the issue isn't as cut-and-dried as my 7-year-old mind made it out to be, as a current controversy makes clear.

In Maine, a proposed law would require foragers—those looking to harvest blueberries, mushrooms, and other wild foods—to obtain permission from the property owner before collecting the food.

The bill, An Act To Prohibit Foraging on Private Land without Permission, would amend an existing law that serves primarily to prohibit people from going onto private property to chop down and transport Christmas trees. Under the proposed law, three convictions in a 10-year period would brand the violator a felon.

One camp—the one that proposed the bill—echoes my own younger beliefs about foraging on private property.

"This, to me, is a no-brainer," State Sen. Thomas Saviello told the Bangor Daily News. "If you own the land, it's not my right to go onto your property and take something that belongs to you." State Sen. Saviello proposed the bill after a pair of constituents complained to him that they'd gone to harvest wild foods on their property but found they'd been beaten to the punch.

Opponents of the bill argue the rules are overreaching, and would put an end to a Maine way of life. In 2013, when Maine lawmakers floated a similar bill to require hunters and foragers to obtain permission to hunt and forage on private land, the outrage was palpable.

"All of the untouched, seemingly forgotten woods of Maine will instantly become off limits until all private landowners are identified, contacted, and hassled for their permission on a slip of paper," wrote Sam Hill, in an op-ed. "Seeking unposted land will no longer be enough for the law-abiding hunter; the local sportsman will have to do pre-season office work, collecting and consolidating the dozens of documents he will have to have in his possession in order to avoid becoming a criminal in the upcoming season. Does this sound like Maine?"

Hill argues instead for continuing the status quo: giving property owners the option to post conspicuous signs on their property boundaries warning that they do not permit foraging or hunting. Posting allows people to "easily access unposted private property with the informal permission of the landowner. Among the beneficiaries of this tradition—not always adhered to in other parts of the country—are snowmobilers, hunters, canoers, fishermen, cross-country skiers and hikers."

Posting places an affirmative burden on landowners to exclude hunters and foragers from their land, rather than on the latter. Ultimately, the question Maine seeks to answer is who should bear the burden.

Notably, while I could find no similar survey of state foraging laws, just 22 states require hunters to obtain affirmative permission of property owners before hunting on private property. The general rules for seeking permission to hunt on private land aren't complicated.

But hunting isn't foraging. It differs greatly in its potential danger to the property owner. A person picking mushrooms on a property seems far less likely to accidentally shoot a homeowner than is a hunter. And the wild animals that may wander onto a property owner's land aren't his property. The mushrooms or berries growing on a landowners property? Like my neighbor's grapes, I'd say they are his property.

I'm a forager, and have written about laws targeting foraging on public land here and, at length, in my book, Biting the Hands that Feed Us: How Fewer, Smarter Laws Would Make Our Food System More Sustainable.

Michael Girard, a friend, outdoorsman, hunter, and homeowner in Maine, told me by email this week that he found the proposed Maine law to be "absurd."

"We're the only state in the union that gets more wild every year," Girard tells me, also referencing the state's embrace of "permissive trespass" for hunters. "People should just be proper stewards of the land—both private and public. I'm happy to share what's on mine and there's been only one exception where I have had an issue and that had nothing to do with foragers."

At last check, State Sen. Saviello's bill seems in trouble.

"Saviello is working on walking back his bill," the Associated Press reported last week.

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  1. Lock ‘n’ load, boys — there’s hippies on our land!

    1. A thundering explosion of diarrhea, consisting mostly of digested McDoubles and Mountain Dew, splashes violently against your chest.

  2. So are bears forbidden, also, from coming onto my property and stealing my wild berries?

    If the bears are NOT forbidden to do this, and the people ARE forbidden, I predict a large outbreak of people in bear disguises, coming out to steal my berries! I will be calling the cops to come out and ascertain whether or not the bears are real! Regularly!

    Will the cops be able to bear with their new duty here?

    1. That’s a grizzly thought.

      1. I can’t bear any more puns.

        1. I like puns, but I see why they’re polarizing.

          1. Now you are just pandaring.

            1. Damn, I thought I was the only one who’d think of that particular word play. Now I’m left w slim pickings like 4 Beats to the b’ar.

              1. Way to bruin the thread.

                1. Just no koalaty puns left.

    2. But is it legal to shoot bears on your property?

      1. Shooting bears is a hate crime, the same as shooting twinks.

        1. Watch out for the power bottoms.

    3. Hey y’all… On HOW do we tell the REAL bears, from the un-real bears… Pepples in bear suits… Bear with me now…

      An offspring of mine says, “Those who shit in the woods, THOSE are the REAL bears!”

      1. Is is legal to shoot trans-bears on your property?

  3. We’s gonna need some bigger hounds, yessuh.

  4. other people’s property?just like taking their lawn gnome, ladder, or chainsaw?is theft

    What about their symphonies, their novels, their paintings? Not theft? Because “sharing”?

    1. Coming onto my property and stealing my $700 giant stepladder… Yes, I did recently spend that much on one… Is a damned HUGE sight different, than you coming onto my property to take notes for PREPARING TO COPY THE DESIGN OF my home-built ladder, whether I patented it or not…

      Hey, I have noticed a LOT of folks in Reason comments, COPYING SNIPPETS OF OTHER PEOPLE’S POSTS!!! Hang ’em high time?

      1. For theft. Got it.

        1. Just trolling, stupid, or a little of both? Yeah, I think it’s the last one.

      2. Your example is a nice reductio ad absurdum that seems to work because the idea of copying a ladder design seems ridiculous. It is ridiculous exactly because ladders have been around forever and ladder innovations are few and far between. But what about the idea of someone stealing a design for a quantum computer that could revolutionize computers, and that you spent ten years developing? Does that sound like theft? It sure sounds like theft to me.

        1. Libertarians are often befuddled by deeper philosophical concepts. I’ll just leave this here:

          What the patent and copyright laws acknowledge is the paramount role of mental effort in the production of material values; these laws protect the mind’s contribution in its purest form: the origination of an idea. The subject of patents and copyrights is intellectual property.
          An idea as such cannot be protected until it has been given a material form. An invention has to be embodied in a physical model before it can be patented; a story has to be written or printed. But what the patent or copyright protects is not the physical object as such, but the idea which it embodies. By forbidding an unauthorized reproduction of the object, the law declares, in effect, that the physical labor of copying is not the source of the object’s value, that that value is created by the originator of the idea and may not be used without his consent; thus the law establishes the property right of a mind to that which it has brought into existence.

          1. It is important to note, in this connection, that a discovery cannot be patented, only an invention. A scientific or philosophical discovery, which identifies a law of nature, a principle or a fact of reality not previously known, cannot be the exclusive property of the discoverer because: (a) he did not create it, and (b) if he cares to make his discovery public, claiming it to be true, he cannot demand that men continue to pursue or practice falsehoods except by his permission. He can copyright the book in which he presents his discovery and he can demand that his authorship of the discovery be acknowledged, that no other man appropriate or plagiarize the credit for it?but he cannot copyright theoretical knowledge. Patents and copyrights pertain only to the practical application of knowledge, to the creation of a specific object which did not exist in nature?an object which, in the case of patents, may never have existed without its particular originator; and in the case of copyrights, would never have existed.
            The government does not “grant” a patent or copyright, in the sense of a gift, privilege, or favor; the government merely secures it?i.e., the government certifies the origination of an idea and protects its owner’s exclusive right of use and disposal.

            http://aynrandlexicon.com/lexi…..ights.html

            1. Concerning patents, I like this… Please check it out …

              http://www.rocketslinger.com/N…..blication/

        2. It is both theft and not-theft at the same time, until you measure it and the wave function collapses.

          1. But are “measure” and “observe” the exact same thing? How intelligent or advanced a being does one have to be, to measure / observe it, to cause the wave function to collapse? We humans know that WE fart smellers (ooops, I mean, smart fellers) can cause wave-function collapse, but, can chimps? Monkeys? Tree shrews? Fish? Bacteria? Slime molds? Viruses? WHO counts, here?

            Before there is ANY life at ALL on a given planet, does ANY wave function EVER collapse?

            Other folks say that the collapse happens when the state is “registered” (interacts with other particles or fields), not “measured” or “observed”. My eye-ball-rolling-function collapsed a LOT when I first heard the better word choice.

            How is THAT for today’s geeking-out festival?

            -A Real Geek!

        3. What we really need is to design a ladder that no sticker will adhere to.

      3. Why is it so hard for for people to leave other epole’s shit alone?

        1. Because “sharing.”

  5. If’n we do NOT have Government Almighty spell all these things out, we will have shoot-outs between rival rural gangs, who run berry-stealing raids on each others’ properties! We are talking about?

    Fiddlin’ Around with the Hatfields & the McCoys?

    Y’all ever hear of the Hatfields or McCoys? There in down-home Appalachia?
    You’ve read your “alternate history” books, yes? HarryTurtledove, etc.? I’ve been thinking of writing fiction like that? But I need a history expert to help me out! Anyone out there game to co-authoring a work of such fiction with Yours Truly?

    1. So here, check this out: The Hatfields and the McCoys get in a spat, just like in our timeline? Except they don’t shoot and kill each other, they challenge each other to a down-home, ol’-time country hoe-down, fiddle contest. Each family puts up their finest 8 or 10 fiddlers, to go at it, spelling one another (per each family team) through vacations, eating, sleeping, and potty breaks, so that the fiddling contest can go on and on and on? This is the song that never ends, my friends, and it goes on and on? Till the losing side gives up, or it goes on? FOREVER!
      So I’m first-off, looking for a good working title?
      I’m thinking?
      I’m a-thinkin’?
      ?
      ?
      ?
      “The Endless Cycle of Violins” might work!

      1. or “Will the Circus Be Unbroken”

      2. “Atlas Fiddled.”
        “For Whom the Belle Tolls”
        “A Room with a Feud”

        1. ^^^+++!!!

          “A Room with a Feud”, I love it!!! A hoot!

        2. “Atlas Plucked”
          “The Mountainhead”
          “We The Fiddling”

      3. Your aiming at the unlimited sequel market, one guesses ….

      4. “A Good Enough Excuse for a Musical Play”

  6. Pretty easy to reconcile all camps if you start from the premise that crime involves harm, and that only victims (or their guardians, etc) can determine that harm and prosecute it.

    If a tree falls in the woods and no one hears it, does the owner care? Has the owner been harmed?

    If someone trespasses to pick wild mushrooms or berries or deer, and the owner never learns about it, has anyone been harmed? If the owner does learn about it and thinks he’s been harmed, then the owner should do something about it, such as install trail cameras, No Trespassing signs, etc. If the owner can’t be bothered to take such rudimentary steps, maybe the loss isn’t too small to be worth worrying about.

    Consider trespassing into a house to forage for jewels, TVs, computers, cash, guns, whatnot; usually known as burglary. If the owner never notices, well, I guess the owner would be dead and have no friends or relatives to notice either. Usually fences, gates, doors, windows, and such all are the equivalent of posting No Trespassing signs, and understood by all.

    Another contretemps caused by government thinking it has to pass laws to set the world aright.

    1. Your ruminations have given me an idea. What about different kinds of “no trespassing” signs, perhaps different colors for different levels of trespassing? For owners who don’t mind hikers on their property, a green sign. For owners who wouldn’t mind hikers also picking a few blueberries, a yellow sign, etc.

      1. That can easily be done, and I’m pretty sure I’ve seen custom signs for particular situations like that. But not a color code; this is the sort of thing where those newfangled things called “words” are best; icons might work too, but tend to be hard to figure out.

        1. The problem is with the near evaporation of the doctrine of assumption of risk in American liability law. If you explicitly (or implicitly by conspicuously leaving out words that’d say otherwise) invite people onto your land, you’re inviting a lawsuit.

    2. You can be harmed even if you don’t know it at the time.

      Otherwise your premise allows things like ‘people’s privacy hasn’t been invaded until they know they’ve been spied upon’.

      http://tinyurl.com/kg5xxv7

      1. Hey, if someone breaks into your house but doesn’t take anything or cause any damage, then what’s the big deal?

        One of the reasons we have laws against trespass in the first place is because the people who willingly trespass also are the ones who break into cabins or steal machinery. Prohibiting trespass allows us to “nip the problem in the bud”, as the great Criminologist Barney Fife once noted.

      2. No, that’s not what I meant, but I can see how I miswrote that.

        The primary point is that without harm, there is no crime. One of the reasons for fences, walls, etc, is to be left alone. One of the reasons for gates and doors is to show that some invasions of privacy are warranted, such as package delivery. Communities, societies, whatever groups people organzie into, come up with “standards”, so to speak, such as if you don’t want pamphleteers, door-to-door peddlers, etc, you put up a sign saying so.

        If a community has a standard, like these Mainers claim, that food foraging is the norm, and maybe in some areas hunters are the norm, then you’d have to put up a sign to warn otherwise.

        But there’s also the matter of detecting crime. If you only visit your land once every ten years to harvest truffles, and find them gone, then yes, a crime has been committed, assuming you followed whatever community standards. But being the victim, it behooves you to find said thieves, and if you aren’t going to help yourself with trail cameras or something similar, or if you aren’t going to put in the effort to track down truffle sales over the past year, then don’t expect anyone else to help.

        It’s like going away on vacation and leaving the doors wide open. Yes, anyone who robs you is the criminal, but you got to help yourself. And if that means your once-a-decade truffles need special attention, then so be it. Your choice to balance deterrence and detection.

        1. Well, package delivery is not an invasion of my privacy.

          And as for ‘local norms’ – that’s not an excuse for eliminating property rights. If the local norm is that anyone can do anything they want with anything they find that’s not nailed down, is it going to be ok when they raid your blueberry bushes because ‘that’s what the community does’?

          What about when they take your ipad?

          1. You just admitted that YOUR norm is that package delivery is not an invasion of YOUR privacy.

            Some people feel otherwise and want packages left for pickup.

            Some people don’t mind religious pamphleteers showing up at all odd hours, some do.

            Some people don’t mind food foragers but do object to hunters with guns, but arrows are ok.

            And having local norms is not abrogating property rights. Your example is exaggerated tosh and worthless. If someone moves into an area where the norm is to allow food foragers, he better put up with local norms and post signs, otherwise he’s going to have a long long battle and end up on the short side of it, regardless of property rights. It’s no different from religious nuts sneaking into North Korea. Maybe in a nice theoretically perfect world, they have the right, but in reality, life will be hard on them. There are all sorts of norms to put up with, such as who goes first at all-way stop sign intersections.

          2. If land has regularly been used by foragers, the homesteading principle suggests they have an easement to continue doing just that.

        2. Used to be that community norms said that certain races could not live in those communities.
          Used to be that community norms said that certain religions could not live in those communities.
          Turns out some community norms are unconstitutional.

          On another note, is you position really that a property owner is supposed to buy, install and maintain trail cameras over a property measured in the hundreds of acres? That would be like saying unless a homeowner hires physical, human, guards for each door and window, then a thief is really not a thief.

          Private property is private property (unless it is within 100 miles of the border,or at an airport, or at a sobriety checkpoint, or at a school, or etc) and if you do not own it, don’t go onto it unless invited.

      3. All value is subjective, so, yeah. Can you rightly be said to have been harmed by an outcome you never find out about? What you don’t know can’t hurt you.

        1. What does subjectivity of value have to do with anything? You can value something and not notice that it’s been taken. Value does not imply thorough inventory.

          If a restaurant employee takes food without permission and without paying for it, and the owner doesn’t track food inventory thoroughly enough to catch this, the owner has still been harmed — he’s having to spend money on food to replace the stuff the employee took.

          You can say “he should have kept better inventory and installed cameras etc.” but that’s beside the point. Harm occurred whether the person harmed could have avoided it or not.

          1. How can the restaurateur possibly be said to have been harmed if he never realized what had gone on? Harm consists entirely in feeling worse about something; if you don’t feel worse, how can you be said to have been harmed, unless you have some theory of non-subjectivity of value?& if you do, that poses great problems for libertarian theory generally. If you think value exists independently of valuation, then you should applaud aggressive measures to improve people’s behavior & choices even against their will, because their own choices would result in inferior objective values for their lives.

            1. He is harmed. The theft will negatively impact his bottom line. That he is not cognizant of the theft makes it no less costly.

              1. It doesn’t make it less costly to a bookkeeper who has perfect knowledge. But since non-cognizance means the person has nothing to compare to, the person just sees one figure. Since all feelings relate to knowledge, the person doesn’t feel any the worse.

                What would make the person feel worse would be knowledge that thefts were going on, either in society or in that vicinity or in that type of business. That would set the person on edge, even w/o knowledge of this particular theft, because the suspicion would be there. But if there were not even suspicion?if it were believed that thefts never occur in such businesses?then no reason for the person being stolen from to feel bad.

                1. He still has damage to his bottom line. ‘Feeling bad’ about it is not the definition of harm here.

          2. I agree financial harm has been done, possibly beyond the mere food cost if diners have to be told some meal is not available. But if the restaurant owner can’t be bothered tracking inventory, then his only chance of knowing about the crime if to catch the criminal red-handed. That’s the owner’s choice — maybe he doesn’t think the trouble and expense of tracking inventory is worth the small possibility of losing food. Maybe he’d prefer cameras.

            It’s his choice.

            And again, if the owner doesn’t want to track inventory, doesn’t want cameras, and relies on catching thieves in the act, then he can’t blame anybody else when he doesn’t know he’s being robbed. It’s not society’s problem.

            1. In the case that sparked the legislation, the property owner did know something was stolen. They just did not know by whom.

              The problem with your theory is that there’s no way for the taker to know that the owner knows or not. If you are on property that is t yours and you take something it is reasonable to expect you are taking something that doesn’t belong to you, colloquially know as “theft”.

              Also imagine a situation where the property is very large. Does the property owner have the burden of making sure every point of ingress is marked with a no trespassing sign?

            2. Tracking inventory costs time and money, and more of both the more thoroughly it’s done.

              Let’s say it costs $100 a month to do a more thorough inventory — does that mean an employee stealing $90 a month is not causing harm?

              Your argument seems to be that if you burglarize, embezzle, or otherwise steal less than it would cost your victim to catch you, then no harm has been done. Which is bupkus.

        2. Then you’re absolutely on board with Mike Roger’s support of warrantless surveillance and punishment of whistleblowers – because what you don’t know can’t hurt you.

          1. Exactly, as long as it never comes to light. But how’s a whistleblower going to be punished w/o ever knowing it? & w/o it becoming known that one might be subject to it?

          2. This is also the reason I’m for legal abortions: because if you never find out you were killed, or were subject to being killed, you’re never disappointed.

    3. If the owner does learn about it and thinks he’s been harmed, then the owner should do something about it, such as install trail cameras, No Trespassing signs, etc. If the owner can’t be bothered to take such rudimentary steps, maybe the loss isn’t too small to be worth worrying about.

      The guy who owned this house could have bought a reinforced door that couldn’t be smashed open with a sledgehammer blow to the bolt. Since he couldn’t be bothered to take such rudimentary steps, he was clearly okay with me taking his TV.

      1. Sure, and people who get hit by falling airliner ice have only themselves to blame for not walking around under a six inch thick armored roof.

        Not sure what you’re getting at. Nowhere did I say not taking preventive steps means you have no recourse when someone steals from you.

        Maybe you’re just being a dick. Bored much?

        1. What I’m getting at is disputing the argument that a victim’s failure to successfully defend themselves from the perpetrator of a crime constitutes a justification for the crime.

          1. I didn’t say that.

            1. Yes, you did say that.

              If someone trespasses to pick wild mushrooms or berries or deer, and the owner never learns about it, has anyone been harmed? If the owner does learn about it and thinks he’s been harmed, then the owner should do something about it, such as install trail cameras, No Trespassing signs, etc. If the owner can’t be bothered to take such rudimentary steps, maybe the loss isn’t too small to be worth worrying about.

              You’re implying that no crime has been committed if the owner never finds out, or even if he finds out and doesn’t take steps (including expensive ones like trail cameras, wtf?) to catch future criminals.

              1. I stand by that — if the owner never learns about the harvesting, then he never intended any use of them himself, whether for food, composting, or anything. He has no financial loss. He has no restitution coming because he has not been harmed.

                Maybe he values pristine woodland, and the foragers trampled leaves. In that case, yes he’s been harmed. But if his only purpose in buying the land was to keep it private, then he needs to face reality and post signs, build fences, install trail cameras, or do something, otherwise he will live in ignorance, and never know he’s been harmed.

                As for being his responsibility to install trail cameras, I mean that as the victim, it’s his responsibility to take steps to recover from harm, or to prevent it. If he won’t take those steps, he’s still been harmed, but he’s a fool who refuses to face reality.

                If that reality is that locals have considered food foraging acceptable for hundreds of years, then he’s a fool for thinking a mere change of title is sufficient to protect him. Crime requires intent, mens rea, and if all locals think it perfectly ok to trespass to forage for food, then there is no criminal intent. He has to post signs, put up a fence, or somehow make it known that he does not want food foragers on his property.

                1. if the owner never learns about the harvesting, then he never intended any use of them himself, whether for food, composting, or anything.

                  That’s a complete non sequitur. The owner may intend to use the berries the plant produces, without knowing exactly how many there will be until he goes to harvest them. Say it produces 100 berries, and trespassers take 20 of them before he arrives to harvest the berries. He arrives and finds 80 berries and, unless he inspects every stem for evidence of a berry being picked, he assumes that the plant only produced 80 berries. But if the other berries had not been taken, he would have harvested them himself.

                  That amounts to little more than “get while the gettin’s good” theory of property rights.

          2. The closest I came is that if the society or community treats food foraging as the default acceptable condition, then property owners who don’t want to allow that have to make it obvious, with No Trespassing signs, fences, or whatnot. Just as a fence around a house says No Trespassing”, but an unlocked gate says “Deliveries accepted”, in most communities, so would a ten foot tall fence make it obvious that even the most innocent of trespassers are not wanted.

            1. Da fuck?

              So if I siphon a quart of gasoline from your car, once a week, every week; I’ll have gotten 13 gallons over the course of a year. Which means you’re out ~$40. But if you don’t notice it (and you’re not going to notice a quart of missing fuel), there’s no crime?

              Or if you go on vacation, and whilst your away I run an extension cord from your outdoor outlets to run my electric chipper, there’s no crime if you don’t notice it?

              Are you really that much of an idiot?

    4. So if the police are driving by and see someone breaking into your house when you’re not home, they should just ignore it because they’re not the victims and you don’t know about the break-in anyway.

  7. And the wild animals that may wander onto a property owner’s land aren’t his property.

    I’m not sure the law agrees with you entirely. Under English Common Law, the gentry owned all of the game animals on their property. I know this because of my years of watching movies and reading fiction. Period pieces always have stuff about some guy poaching a buck on the Lord’s land.

    So not exactly supreme court doctrine. But still… I’d say the precedent is there, that taking an animal on your land is at least akin to theft.

    It seems that the current convention that the state gets to decide what animals you can take on your own land is the break with tradition. So I’d guess that the law would come down somewhere in the middle – where wild animals on your land are not entirely yours, but not entirely not yours either. Some sort of regulatory middle ground like water moving through your property.

    1. Before 1217, forest land was explicitly outside (foris = outside/foreign) common law since the land was considered by the Normans to be the exclusive hunting preserve of the king and his chosen minions and offenses were judged by a separate forest court. The first struggle to end that prob created the great folk myth – The shire reeve (Sheriff of Nottingham) enforced the laws re the shire wood (Sherwood Forest) thru the reign of the evil King John opposed by the heroic common man (Robin Hood) (and unmentioned the barons who were in civil war against John). Until the Magna Carta (for the nobles) and Charter of the Forest (for the peasants) was accepted as a limitation on royal power.

      The current kerfuffle is a modern version of enclosure. What existing natural rights get taken away from those who don’t benefit from enclosure – since forestland is the only remaining land where ‘nature’ can still be seen as the original owner.

    2. This is one of the main differences between England and the US. In England, traditionally the landowner owned wildlife. In the US, that was never the case, going back to colonial times.

      “The exclusion of the many in pursuing and possessing wildlife by dispensing of privileges to the few was a primary ingredient in what distinguished England from the United States. In the U.S., all had, and still have, an equal right, as opposed to a privilege as it was under English law, to take game. Wildlife in England belonged to the King, though after the Glorious Revolution of 1688 it belonged to the landowner – ratione soli. However, therafter the aristocracy, through Parliament, attached conditions to one’s access to hunting – certain qualifications had to be met which excluded the common man. Americans viewed all the English restrictions with contempt, and our courts reflected this in the language of their decisions.” NAF, 9th Ed., pp. 705-706.

      1. What is NAF?

        I’d argue that Americans simply adopted English law re land. Whatever differences exist are solely because, back then, we HAD extensive wilderness and frontier so the notion that land/nature was a limited resource appeared a bit nonsensical. It was a perceptual difference not a legal one. Once the frontier disappeared, so did the perceptual difference – but what remained was simply English land law with its relatively unique notion of absolute property in land.

        1. That notion of absolute land property in the UK/US is what underlies the different mortgage systems and the way they are financed. In the US, the land title itself is transferred to the mortgage lender and they can then do anything they want with that title (including pledging it as collateral for their own borrowing). That requires that everything (from wildlife to the right to destroy/change the land) be associated with the land title. Continental Europe generally has more of a title-escrow/registration system

          1. I don’t know how your mortgage works, but the bank holding my mortgage does not hold title on my land, they have a lien on my title.

  8. The notion of entering someones property to forage without getting permission seems to be quite disrespectful to the property owner.

    The notion of doing the same with regard to hunting seems even more egregious.

    This being true whether or not the landowner has the land posted.

    1. The article does bring up some interesting points about certain remote areas of the country. There are large swaths of land that are lying fallow – perhaps for their timber, perhaps merely as a future investment, perhaps just as a getaway from everything. Some areas have limited or no road access and still have multiple property owners.

      Under this scenario it would be difficult to even know when you passed from one person’s property to another, let alone who the individual property owners are.

      I used to go hiking in the Appalachian mountains in areas like this. You’d take an old logging road up into the mountains and then follow creeks and other landmarks up into the middle of nowhere. None of the land was posted because nobody was going to use it for anything for a couple of decades while the hardwood forest regrew.

      1. Its still the difference between ‘no harm’ and ‘getting away with it’.

        But *that* sort of distinction – between large areas left fallow and rummaging through the bushes a hundred yards from a guys house is something that the courts could rule on on a case-by-case basis.

        Still, you’re running into an effective ‘tragedy of the commons’ situation – its all fine and dandy when its one or two guys per acre per week. Its not so harmless when its 20 guys per acre per week even if each of those guys only takes ‘a few grapes’.

      2. If you’re hiking in a national wilderness and accidentally wander onto private property, and nobody notices it, there shouldn’t be a problem. How would anyone prove that you illegally foraged?

        If foraging becomes a “thing”. I would be concerned about people tresspassing on private land because the public lands are picked through. (Not that that is ever likely to happen).

    2. If the land isn’t posted, how would you even know you were on someone’s property?

      1. Places where I have lived (Iowa and Illinois), virtually all land is privately owned so its pretty much a given that if you aren’t on your own land, you are on someone else’s.

        1. It also could be abandoned property… but you probably should assume it isn’t.

        2. I live in Illinois and across the road from my house are hundreds of acres of government owned forest preserve adjacent to privately owned farms and forests. There is no signage on the government land prohibiting entry or taking of food (mushrooms being the big deal around here). To the extent that private property owners post signage warning intruders of their rights, at logical points of ingress (deer trails mostly) the situation is pretty obvious. If they don’t, as a practical matter, the forager would have no way of knowing whose land he was on. Seems to me there is a mens rea issue here. I for one don’t want the power of the state aimed at mushroom foragers and if you own mushrooms post a sign. I don’t see a problem requiring a shiny new statute for cops and prosecutors to fuck around with.

          1. Well, either way, the property owner has to report it in order for the cops to get involved. I don’t think we’re talking about posting cops along hiking trails and asking for permission papers.

      2. Unless in a defined federal of state park/recreation area/public road etc, you are on private property.

      3. If you’re not on your property, you’re on someone else’s.

        Just because the car was unlocked doesn’t mean that the stuff inside might have been yours.

  9. AM I FREE TO GAMBOL!

      1. forgot the Officer! part

    1. Came for this. Leaving satisfied.

  10. Second, I wasn’t doing any harm at all to the neighbor’s grapevine by picking a few ripe grapes.

    Really? This is exactly the sort of thinking that leads to a multitude of small taxes, tariffs, and fees imposed by myriad government agencies. Its also the sort of thinking that prevents any government program, no matter how small, from being eliminated. Oh, its only a couple of cents, why are you so opposed to such a small tax?

    Get 50 strangers to come by every day and take ‘a few grapes’ and see how much harm is done.

    In any case, this situation is not complicated;

    1. I do not have an affirmative duty to prevent you from entering my property – you have an affirmative duty to seek permission. Period.

    2. Animals are not people. Animals are just one of many natural dangers that I must protect my property from. *You* know better. Just because mold might get my leftovers before I get to them doesn’t mean you can come round and raid my fridge when you want to.

    3. There’s no need for a law to sort anything out. Precedent pretty clear – trespassing is trespassing.

    You want to forage – freaking ask for permission and respect the decision of those who choose to not let you. For one day it’ll be *your* property that someone thinks should be available for communal uses with no compensation.

    1. There’s no need for a law to sort anything out. Precedent pretty clear – trespassing is trespassing.

      There needs to be a mutual understanding though. Otherwise it’s just might making right. Property rights are a form of “social contract” and just like The Social Contract, assuming its existence requires circular logic, especially when it comes to open, un-homesteaded land. People may be born with some concept of possession (mine!), but that doesn’t necessarily mean they’re also born with your particular concept of property rights.

      Say someone finds a big meadow and decides to set up a campsite there. The next day some stranger comes up out of nowhere and claims that you’re trespassing on his land. What’s that supposed to mean to the camper? Should the camper require some sort of proof or evidence of ownership? What if the stranger is lying or mistaken? And the claim of ownership is at best the result of some agreement between the alleged owner and the person who allegedly owned it before him. So now what? Do they duke it out? Somehow they’re going to have to come to an understanding or force will be used by one of them and then it becomes might makes right.

      1. Well, even if the camper doesn’t know if this person is the owner, the camper does know HE is not the owner. Which means HE should move his camp until he finds out he is permitted to be there.

      2. Property rights are not a ‘social contract’ – that way lies the ‘that’s the government’s money, not yours’/’you didn’t build that’ line of thinking where the majority can do what they want because they’re the majority.

        1. As for the camper situation – yes, demand proof of ownership. But be ready to jump if it turns out you’re not welcome. If the situation is genuinely ambiguous as to who owns what, that’s what the courts can work out.

          But posting signs is not proof of ownership either.

    2. It is interesting that many countries in Europe have freedom to roam laws that have a long history.

      I think libertarian philosophy is weak on this issue. Trespassing of cultivated land is a clear issue. But what about wilderness? To what extent can wilderness be considered to be homesteaded from a libertarian perspective? Don’t you have to homestead land to clearly own it? Getting a grant from the king or even putting a fence around a huge tract of land does not seem to qualify as homesteading in my eyes.

      1. You do not have to homestead purchased land. Homestead was required when “given” federal land to settle.
        Owned wilderness is owned land. If I paid for the land, and I want it to remain wilderness, you cannot come in and make it “not wilderness”.
        Libertarian philosophy is quite clear; if you don’t own it, it is not for you to do anything with unless invited.

      2. I don’t think ‘homesteading’ is a libertarian issue. You either own a piece of property – and so can allow it to lay fallow without having to worry about someone taking it from you – or you don’t.

        There’s no obligation in libertarianism to *develop* your property. Hell, you may simply want a wild-life preserve and don’t want other people wandering around scaring the bunnies. Its your property.

        1. Exactly — this is what The Nature Conservancy does. One man’s improvement mixing labor with the land is another man’s ruination of pristine nature.

          A major problem is that the concept of property rights in natural law is underpinned by the idea of mixing labor with the land, which makes it difficult to justify giving property rights to someone who just wants to leave the land as it is and prevent others from developing it. One of many reasons why natural law philosophy sucks.

          If you’re a utilitarian there’s no issue — private property with exclusion rights is very useful societally, so you don’t need to bring in the Lockean bullshit about mixing labor with the land.

        2. There’s no obligation in libertarianism to *develop* your property.

          How does a particular piece of land come to be my property? If it’s just “when the government says I own it”, that doesn’t seem very libertarian.

          1. Presumably there’s a chain of ownership ending with you and starting with whoever killed the Indians and took it from them.

    3. Have enough people pick a few.grapes tgen it becomes a regular tragedy of the commons. The owner had the final say on how much of that is enough, otherwise private property cannot protect resources.

  11. Am I free to forage ears of corn from the guy with 4000 acres planted in corn? Pecans from the 60 acre pecan grove? Am I free to forage gold from the mine on his property?

    Not sure why this is an issue.

    CB

    1. 4000 acres of corn is probably going to be feed not sweet corn not good eatin’.

      1. What about 4 acres of strawberries that are ready to harvest? Allowing people to “forage” there is a situation that is, ahem, ripe for abuse.

        A few years ago the company where I used to work, in a fit of PC silliness, decided to tear out part of their lawn and plant a “community garden” in order to be more “sustainable” (Baylen probably would have approved).

        What happened next was completely predictable: The garden ended up as a patch of weeds, because most people didn’t want to do their gardening assignments, and the good stuff like strawberries and peaches and melons got pilfered by the surrounding “community” before we even had a chance to harvest it.

        The only vegetables that worked were the potatoes and the kale; the potatoes because most people were too dumb to realize you had to dig them or were too lazy to bother to do it, and the kale because no one, not even trespassers, want to eat that crap.

        Private property is the main reason we have an abundant food supply. And that food supply makes it to our stores because farmers can prevent people from “foraging” on their property in the first place.

        1. Private property is also however the reason that humans no longer have the freedom (aka natural right) to feed themselves without also engaging in a cash economy that depends on monopoly. And without the freedom to exit the market, there is no free market.

          Not saying that it is not beneficial. Just saying that the act of enclosing land by its very nature diminishes a natural right of others (and who is supposed to do the compensating for that here), requires govtl action to enforce either the now-monopolized property or to create the ‘free’ of free market, and is ultimately a utilitarian justification anyway not an absolutist/natural rights one.

          1. Private property is also however the reason that humans no longer have the freedom (aka natural right) to feed themselves without also engaging in a cash economy that depends on monopoly. And without the freedom to exit the market, there is no free market.

            So you’re saying you’re upset that people are no longer free to gambol?

            (If you get this, congrats, you’re an old school commenter)

          2. No one lives a hunter-gatherer lifestyle anymore, and allowing community ownership of property in the name of “freedom” and “natural rights” pretty much guarantees misery and mass starvation by all but a few powerful/privileged persons.

            Hasn’t anyone here heard of communism?

            1. Pretty much every society up to last century recognized that what you are occupying and using is yours. The only conflict is the limit of what you can claim as individual property in land. Exactly what Benjamin Tucker (more libertarian than most ‘libertarians’ today) said – This [land] monopoly consists in the enforcement by government of land titles which do not rest upon personal occupancy and cultivation. It is precisely that over-and-above claim that creates government with sufficient powers to coerce.

              Obviously no one lives a hunter-gatherer lifestyle anymore. It is illegal. If a smallholder veggie/rabbit raiser who hunts and gathers during the off-season decides to smoke pot, modern libertarians will defend his right to smoke pot as long as he gives up everything else. Because let’s face it – it ain’t drugs that’s the real threat to the established libertarian order dependent on govt coercion.

              1. The hunter-gatherer life-style also can’t support large populations. Even most Native American tribes farmed as well as hunting and gathering, and the US population is now probably at least ten times the peak native population. Worldwide, something like 99% of the population would have to die to make surviving from hunting and gathering possible.

              2. The hunter-gatherer life-style also can’t support large populations. Even most Native American tribes farmed as well as hunting and gathering, and the US population is now probably at least ten times the peak native population. Worldwide, something like 99% of the population would have to die to make surviving from hunting and gathering possible.

          3. You absolutely still have the freedom to feed yourself. What you do not have is the freedom to force someone else to provide for you.

          4. You DO have the freedom to feed yourself outside a cash economy. YOU could grow the food and cultivate the land as a use of your labor rather than any of the various other things you could specialize in. Since you are probably better at something else than farming, It is precisely the idea of his protected property that allows him to maximize what he can grow so that he can trade it for what you can do. He trades less time spent growing food for something that would have taken him much more time/resources to do. You provided the inverse. And you are both free to exit this system. Cash is not the issue and your phrasing of it implies you find something inherently wrong with the idea of free exchange in which two parties would rather carry around light weight coins or paper rather than baskets of corn and whole cars for trade (this last scenario would be a farmer and a car builder trading rather than using the “dreaded cash!!”).

    2. Am I free to forage ears of corn from the guy with 4000 acres planted in corn?

      I thought the article was pretty clear they were talking about wild berries, not crops.

      1. Wild blueberries are a significant business here in Maine. So, this is the same premise as with planted crops.

        1. Wild roots and plants like goldenseal and ginseng also have a bigger than you’d expect market.

          A dedicated forager can make a pretty fair amount selling wild ginseng.

    3. Crusty, the corn was planted by someone (mixing of labor with land). Wild blueberries were not.

      1. Oops, not Crusty. My apologies to Crackers Boy.

  12. Another subterfuge to make everyone believe that Maine actually exists. Who lives there? Who has ever visited there? Does anyone know anyone who does or has? What’s even the capital supposed to be? Do we even know where its borders are supposed to even be? “Maine.” Even the name sounds made up.

    It doesn’t sound like there’s a need for this law. I admit that I’m ambivalent about people coming on my land. I don’t have a ton of acreage but it’s enough that I don’t know what’s going on on most of it. I know hunters use it sometimes. I’d be more interested in a law that removes the liability of landowners for accidents that happened to the uninvited.

    1. I have. Both Maine and North Dakota, another state that, even more than Maine, is widely believed to be a modern day equivalent of “Here be Dragons” 🙂

      1. Because of Creepy Joe Biden I still don’t believe Delaware exists.

        Saying he’s from Delaware makes it sound as if he is some registered sex offender from another state who is just making up the name of some fictional place in order to throw his parole officer off the trail.

        1. I have been to Maine many times, and there is a definite identity to that state. I have also been to Delaware many times, but was never able to convince myself that I wasn’t in Maryland. North Dakota doesn’t exist.

          1. Yeah. Would a real state share a turnpike with Maryland (JFK Memorial Hwy.)? Md. just didn’t want you to know they were collecting another toll. You just knew something fishy was up when they couldn’t get their story straight about where in New Castle the circle was supposed to be centered for their border claim. And could a senator with such obviously phony teeth come from a real state?

            Even Henry Hudson has plausible deniability. There’s the Hudson R., Hudson’s Bay; why wasn’t this one Hudson’s Bay if he sailed there first? Yeah, like there’d be a Canadian one if he’s actually been to the bay where this supposed “Delaware River” drains. He just dropped the Swedes off somewhere in NJ or PA, took some time off, & said there was this big bay there, then went to find a real one in Canada. Log it together with his sailors’ reports of sea monsters, mermaids, & little people who could call down lightning by dancing.

            1. Delaware is part of the conspiracy by the Dupont family to disguise the actual origin of their fortune behind the fictional story of the Eleutherian Mills.

        2. I’ve been to North Dakota and Delaware, and worked with a guy from Maine when I was in the Air Force. But maybe you won’t believe I exist.

      2. You’re thinking of Wyoming, which is actually Italian for “No Land Here”.

    2. Maine exists. But you cain’t get theyah from heyah.

      1. Actually, you can, but it’s a long, long way in that direction, and some “mighty wet wheelin’ “, as they say.

    3. “Maine.” Even the name sounds made up.

      It’s that “e” at the end that’s the dead giveaway. No authentic place would do that, like Ye Olde Whatevere.

  13. As an owner of forest property myself, I fully support laws which place the burden of permission squarely on the shoulders of the trespasser. On private property with no written permission? Automatic trespass citation.

    Posting signs on one’s property sounds like an effective solution, but in reality what happens is the trespasser claims he “didn’t see them” and if the sheriff or game officer does bother to even show up he usually says he can’t do anything unless he can show the guy knew he was on posted property.

    Trespass signs only stop the people you want on your property, the ones who are respectful and responsible enough to ask for permission in the first place.

    If find it bizarre that a libertarian publication would advocate what is essentially petty theft, but Reason has been on a weird Left-wing bender ever since Trump was elected.

    1. On private property with no written permission? Automatic trespass citation.

      Fuck off, slaver.

      1. Fuck off, communist.

        Fucking PRIVATE PROPERTY is anti-Reason? Libertarianism is dead.

        1. One thing for sure.

          A trespasser knows for certain xe is not on xe’s own property (unless adjacent border mistake) and anything xe espies definately does not belong to xe.

          Dont pick my fruits motherfucker because I was just waiting for them to get ripe.p

    2. I bet if you traced the title of your forest property all the way back, you would find out that it was a land grant from some slaver that never even visited the piece of land. Unless you homesteaded the land, or bought it from someone that did, your ownership of that forested property is illegitimate from a libertarian perspective based on Locke’s theory or property. There are, of course, other theories of property, and this is not a settled issue in libertarian literature. Nevertheless, most libertarians are with Locke.

      1. Well, then I’m in “Locke”, so to speak, because my uncle settled on the property and he passed it down to me when he died.

      2. And if you traced it a little further back you’d find that the title was covered in the blood of multiple mass genocides.

        So yes, since the concept of private property is so irrevocably tainted, lets get rid of it an make everything communal. If you’re connected enough then you can get special dispensation to manage select portions of the communal property yourself.

      3. Locke’s theory of property was already unworkable question-begging bullshit when he wrote it 300 years ago, and even more unworkable now.

        Private property regimes produce good outcomes by preventing tragedy of the commons and encouraging people to develop their land. Utilitarianism is your friend if you care about private property rights, not natural law bullshit.

        1. Utilitiarianism by itself can lead to all kinds of horrible results, such as the Holocaust. You can’t rely on utilitarianism by itself. You need a balance of natural law, utilitarianism, and ethical subjectivism.

          1. Utilitiarianism by itself can lead to all kinds of horrible results, such as the Holocaust.

            The Holocaust didn’t work out well for anybody, including the perpetrators, so I don’t see how that can be.

            Those three are completely incompatible. Unless you’re trying to pick your conclusion first and then figure out which philosophy justifies your decision.

            1. Utilitarianism seeks to maximize the desires of the largest number of people. Therefore, if the majority wants to oppress the minority, according to utilitarianism, that is completely justified. Thankfully, most people are horrified by such conclusions, which means something else is at work. I don’t see how natural law is incompatible with utilitarianism, since you are not going to find a single person that is a pure utilitarian to the exclusion of natural law or vice versa.

    3. Posting signs on one’s property sounds like an effective solution, but in reality what happens is the trespasser claims he “didn’t see them” and if the sheriff or game officer does bother to even show up he usually says he can’t do anything unless he can show the guy knew he was on posted property.

      Oh it’s worse than that. They’ll just destroy the sign on their way in and then claim it wasn’t posted. And unless you have video of them doing it, it was obviously someone else who destroyed the sign.

    4. If find it bizarre that a libertarian publication would advocate what is essentially petty theft, but Reason has been on a weird Left-wing bender ever since Trump was elected.

      I don’t see where you got that; the article as saying the opposite. The commenters on the other hand…

  14. What if the tresspasser gets hurt? Are there protections in Maine law for the owners?

    1. I my experience I have observed there is a strong correlation between the persons who demand to be able to trespass with impunity, and the persons who demand the right to sue the owner when they break their leg jumping over his fence.

      Not familiar with Maine law, but it wouldn’t surprise me to find out property owners there can be held liable for whatever happens on their property. From what I understand during the past 30 years Maine has been overrun by liberal New York carpetbaggers fleeing the Socialist Hell their political beliefs created, and they have sought to re-create the same conditions in the Pine Tree State.

      1. From what I understand during the past 30 years Maine has been overrun by liberal New York carpetbaggers fleeing the Socialist Hell their political beliefs created, and they have sought to re-create the same conditions in the Pine Tree State.

        Based on extensive research of the writings covering Maine, they’re probably just eldritch horrors who look like liberal New York carpetbaggers because that is the only form our mind is capable of comprehending.

      2. I my experience I have observed there is a strong correlation between the persons who demand to be able to trespass with impunity, and the persons who demand the right to sue the owner when they break their leg jumping over his fence.

        More seriously, this is a straightforward application of common law, now some New York Liberal conspiracy. If an absence of signage is an implied invitation, as this law claims, then anyone coming onto the property is now an invitee, which imposes a number of duties on the landowner, such as duty to warn and duty to rescue.

  15. Maine – It’s there, it’s a large blob of mountain forest with a road going to the coast so you can get lobster.

    As wildlife (in most states) is held in trust for the people until lawfully taken it differs than the products of the land. What differs between you taking my blueberries growing “wild” and the bushes I planted? What if I planted them as wildlife food (I like the birdies) or just manage my land so the wild ones grow better for them? What about people who take my stuff and then sell it? Big market for wild ginseng, they can take that from my land?

    In NYS Hunting, trapping, hiking, etc. are treated different than taking something off of the property (other than the wildlife – which is not owned by the property owner). Persons hunting, hiking, etc. can be restricted from persons on their open fields and woods by posting at the property lines (each 600 feet and every corner) and it can be posted to all (No Trespassing) or posted for an activity (Posted – no hunting), but it doesn’t have to be posted against people taking things (although a smart person just posts and then ask permission to those they know or who ask).

    Ask Permission, it’s the polite thing to do anyway, posted or not.

  16. I agree with the premise of the bill. The landowner shouldn’t be the one burdened by a requirement to post. This would seem especially true in this age of smartphone apps for everything. How hard would it be to make a foraging app that shows which properties permit foraging?

    That said, taking an atv around the property with a bucket of purple paint and painting stripes on trees doesn’t seem too burdensome.

    1. Its not – and its a good idea to take actions to protect your property.

      What’s wrong here is the burden being placed on the property owner rather than the forager. Its like saying ‘you didn’t lock your front door well enough so its perfectly ok for someone to wander in to your house and take your less valuable goods’.

  17. The burden to protect their own private property should be born primarily by property owners.

    If you can’t be bothered to post signs and fence your property, don’t come running to the law or taxpayers to try to keep people off your land.

    1. Can you run two thousand feet per second?

    2. Accepting for the moment your strange ideas about govt not protecting people’s rights, under the current Maine law, you can’t even keep people off your land yourself unless you post signage (and can prove that the trespasser saw it).

      1. Accepting for the moment your strange ideas about govt not protecting people’s rights,

        The government should “protect people’s rights” to the extent that it should handle legal cases brought before it impartially and with a view towards protecting property rights.

        The idea that government goons should patrol your property for free and/or enforce your property rights without you initiating a lawsuit is neither libertarian nor American/English.

  18. Opponents of the bill argue the rules are overreaching, and would put an end to a Maine way of life. In 2013, when Maine lawmakers floated a similar bill to require hunters and foragers to obtain permission to hunt and forage on private land, the outrage was palpable.

    Being from Pennsylvania, this is really about the hunters. Not surprisingly, most land owners don’t like the idea of a bunch of half-drunk strangers running about their property shooting anything that moves. Most of the people I know who own large tracts of rural land have multiple stories about their house getting hit by stray bullets from poachers.

    But a lot of hunters seem convinced they have a right to go wherever they like and do whatever they like.

    1. If you want to claim the moose as yous, then you gotta scoop the poop too.

      1. I have a friend who’s horse got shot in a fenced off pasture by some hunter who was apparently too drunk to tell a horse from a deer. He did scoop its poop.

        1. Of course the horse is yours not ours. But doe a deer in the clear cohere with beer?

          1. But doe a deer in the clear cohere with beer?

            That sentence certainly didn’t cohere with beer.

    2. yea….if that happened when i used to live on a farm…there would be a few dead hunters…..

  19. There’s a common law doctrine called “innocent use” that covers situations like this. Of course ownership of property entails the right to exclude (although even then not in all cases, as we’ve discussed in freedom-of-movement issues related to eminent domain & easements for transport of goods, animals, & persons), but because of information costs, there shouldn’t always be a presumption of exclusion; that issue comes up when it comes to copying out-of-print material whose copyright owners may be difficult to find.

    In the Bronx every June for 20 yrs. I foraged for mulberries. The mulberry trees were planted deliberately as surely as your neighbor’s grapes were, but the difference is that the mulberries themselves a nuisances to most owners of such trees. They stain like crazy & they have no commercial value, so as long as you don’t do damage getting to them, you’re doing the owners a favor by picking them.

    Now consider the more severe case of being out for a walk in the country & seeing something you want to harvest. The information costs would be insuperable in most cases. Try & find out whose property that is while you’re walking or biking along, huh? (However, it might be a little easier with mobile Internet-capable devices now.) So simple Baumolian economics says the presumption should be in favor of foraging.

    1. I think “innocent use” related to the trespasser being unaware of the fact the land they’re on is privately owned (and thus lacking mens rea). It’s an affirmative defense to a charge of trespass, not an actual right that one has with regard to something you’re aware is private property.

    2. I think you’re confusing eminent domain with a common right to travel.

      Eminent domain and easements are not you allowing people to use your property, its your property *being taken* and compensation paid (supposedly) for a ‘public purpose’.

      But you don’t get to keep the property in these situations – even easements take away part of your property (that’s what an easement is) by removing your rights to use that piece in certain ways.

      That’s how important property ownership is – traditionally, we recognize that property owners have an absolute right to exclude and so, to deal with things like freedom of travel, we openly force the transfer of property rights.

      And its not a good libertarian position.

    3. that issue comes up when it comes to copying out-of-print material whose copyright owners may be difficult to find.

      Copyright is not remotely comparable to real property rights, so this analogy is terrible.

      They stain like crazy & they have no commercial value, so as long as you don’t do damage getting to them, you’re doing the owners a favor by picking them.

      Weren’t you trying to make the “value is subjective” argument above? Maybe the owner likes the mulberry trees unpicked. It’s not for you to decide for them.

      Now consider the more severe case of being out for a walk in the country & seeing something you want to harvest. The information costs would be insuperable in most cases.

      Oh my, the horror of not being able to take something you want for free. We have to drive a knife into the heart of property rights to prevent such a malady.

      1. Much economic theory is about being able to take something you want for free, hence making the most efficient use of whatever. The arrangement to be sought is that in which the packages of rights make the most free stuff available after subtracting all costs including those of information. This is not driving a knife into the heart of property rights, this is determining the most efficient set of property rights. It comes up a lot in issues of pollution, for one.

        The owner might like mulberry trees unpicked, but it would cost all involved more to determine that than is worthwhile.

        1. If everyone felt free to go pick mulberries off of tree on private property, the private property owners might soon find it a nuisance.

          I’m assuming laws like this are being proposed because foraging is becoming a “thing” in some places and there are enough trespassers that some people are bothered by it. Plus the cost of posting signage might be more than some can easily afford.

    4. I would never walk into someone’s yard and pick mulberries. Branches hanging over the fence into an alley, sure. But not their front yard, and certainly not their back yard.

    5. If you’re out walking or biking in the country and there is a trail, you can bet there is some sort of margin or right of way. Anything IN the margin is fair game. if it’s on the other side of a fence, or way off on one side in the direction of a farm house, you darn well better know that’s on private property, no matter who owns it. It’s off limits. Just stay on the damn trail, within the right of way.

      Also, my bet is that the people who own land abutting popular hiking and biking trails probably don’t appreciate the frequency of visitors who feel like it’s ok to tresspass to pick their berry bush or take a piss in their back yard, or let their dog take a dump there either. it’s not like you’d be the ONLY PERSON ever to walk down that trail and think “yum, Blueberries!”

  20. Basically the contemplated legisl’n is an anti-hippie or anti-bum measure, seeking to persecute those with a certain kind of lifestyle; plus it’d be one of those laws aimed only indirectly at people who actually harm society, criminalizing not the actual act of harm (such as cutting hedges or whatnot to enter, leaving trash around, etc.) because it’s too hard to catch them in the act, but instead harmless actions preliminary or ancillary to the harmful ones.

    1. The trespass *is* a harmful act. Just because its less harmful than what may come later doesn’t change that.

      1. What is the harm? Or are you just arguing circularly, assuming that the right to exclude in all cases is of value, and therefore that a case of non-exclusion is a loss of value?

        1. Its not circularity. Property rights include the right to exclude. Violating that is a harm.

          1. But how did you determine/decide that? If you assume it, you can’t use it to argue for itself.

            1. For a utilitarian it’s simple. Because giving property owners the right to exclude is the only way to prevent the tragedy of the commons and to encourage people to develop their property.

              The natural law aficianados have to pull out Locke’s question begging nonsense, but I’m not bound by that.

          2. Property rights include the right to exclude.

            Yes, and “excluding” requires doing things like posting signs and putting up fences.

            If you just let your land sit around, you are not exercising your “right to exclude”.

  21. “?the right to exclude others from one’s property is a fundamental feature of property ownership and a central concept within property law.”

    Well?no. The absolute right to exclude of property owners is a rather recent and peculiarly American concept. For hundreds of years, in Europe and America, exceptions to exclusion, such as the right to pass, the right to “wander”, the right to navigate rivers, and rights to hunt, fish, and, yes, forage, have been recognized either in the law or in common practice.

    “And the wild animals that may wander onto a property owner’s land aren’t his property. The mushrooms or berries growing on a landowners property? ?they are his property.”

    Why is that? Neither statement is self-evident to me.

    1. Re: Vernon Depner,

      Neither statement is self-evident to me.

      Except when it happens in your property… Correct?

      1. Hey, that’s different. Totally.

        Other people posting their property: “So I climbed on his fence and I yelled at the house “HEY, WHAT GIVES YOU THE RIGHT?!?!?”

        Vernon Depner posting his property: “Long-haired freaky people, need not apply.”

    2. You’re describing easements, which are defined very restrictively by the common law. It’s not anything goes. You’re trying to swallow the rule with the exception.

    3. Vernon Depner|4.8.17 @ 3:17PM|#
      “?the right to exclude others from one’s property is a fundamental feature of property ownership and a central concept within property law.”

      Well?no. The absolute right to exclude of property owners is a rather recent and peculiarly American concept. For hundreds of years, in Europe and America, exceptions to exclusion, such as the right to pass, the right to “wander”, the right to navigate rivers, and rights to hunt, fish, and, yes, forage, have been recognized either in the law or in common practice.

      Cite missing and I’m guessing it will continue to go missing.
      To be clear, VD, you just made that up.
      Oh, and rivers were never ‘private property’ but I’m sure you knew that and hoped those reading were dumb enough to buy you line of crap.

  22. What about in the suburbs? Must I put up a do not pick sign to protect my avocado tree?

  23. Wonder if property owners feel the same about – say – a wandering Johnny Appleseed? Planting trees rather than harvesting them.

    1. The Nature Conservancy certainly does.

      One man’s improvement is another’s ruination.

    2. I’d be horribly pissed if someone when around planting olive trees on my property. Those things are nigh unkillable if they get set in.

      1. Or even worse, Johnny Dandelionseed.

  24. Damn, I need to plant a muscadine in my side yard.

  25. A posting requirement sounds great at first, but devil’s in the details. What is the burden of proof regarding whether warning signs were posted?

    If the burden of proof is on the owner, then the owner would have to prove in court that the signs were conspicuously posted when the trespass occurred. Trespassers could pretty much gain immunity by ripping down the signs before trespassing, then claiming that the signs were not there when they passed the property line. Good luck disproving that, owner.

    If the burden of proof is on the trespasser, then they’re equally screwed — the owner could do a shitty job putting up the signs and never check whether they’ve been ripped down or blown away in a storm for years. When the trespassers argue that there were no signs, and produce pictures of the property line showing that there are no signs, the owner can claim they must have ripped them down.

    Having the law require explicit permission is the only way both parties can be protected from dishonesty by the other.

    1. But the opp’ty costs are substantial.

      1. Whose opportunity costs? You’re not making any sense.

        It costs the property owner nothing to not have his property trespassed upon.

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  27. why do such simple matters require so much bullshit? If you do not know who owns he property, stay the fuck off it. Wow, that was so hard.

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  29. Reason writers arguing against private property.

    Can we stop pretending this is a libertarian site yet?

  30. I am somewhat conflicted about this as well, but I lean towards Agamemmnon’s position.

    I hike, and I have foraged. I would never, EVER think of hiking and foraging on someone else’s private property. The vast majority of hiking trails are in state parks and private property is clearly marked. Every once in a while you might accidentally wander onto private land, and I’ll give that a pass. But general, In order to wind up foraging on private land, you have to be hiking off trail or in an area that you know is private land. So the public parks are all picked through? Tough tities.

    Also 5 year olds might be exempt from rules against hopping someone’s backyard fence and stealing grapes (or picking crab apples in my case), but a grown adult ? Um, no. As an adult, you’re expect to know that other people’s backyard gardens are their food and are not there for public consumption. If some branches stick through the fence, that’s fair game. You do not walk into someone’s yard and pick berries off their mulberry tree.

    1. State or national parks or in designated wildlife, wilderness areas. (IMO, it’s cool to forage on public land, rules about taking only pictures be damned)

  31. Hmmm, the filer represents mostly Franklin county – not exactly the center of the big government crowd. Seems to me that there may be a bit more here than we think – or at least a different take. Maybe some abuse of the old ways by people coming in and taking a bit too much?

  32. Ya best keep off my land that I worked so hard to own or I will shoot you and they will never find the body….

  33. There are two levels of trespass. At least here in California.

    There is the simple trespass as in anyone entering your property without your express permission. This includes door-to-door salespeople that so many seem accepting of. But, good luck with any enforcement.

    Then there is criminal trespass. In order for it to be considered criminal, you have to be able to show that the trespasser intended to do you or your property harm. You can get a police response on this one.

    To me, it’s all the same. Stay the hell off my property and away from my home and family, unless you are known to me as a friend.

    But hey, that’s just me.

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