Amicus Curiae Brief — Cedar Point Nursery, et al., Petitioners v. Victoria Hassid, et al.

NO. 20-107

In the Supreme Court of the United States

CEDAR POINT NURSERY AND FOWLER PACKING

COMPANY, INC., Petitioners,

v.

VICTORIA HASSID, IN HER OFFICIAL CAPACITY AS CHAIR

OF THE CALIFORNIA AGRICULTURAL LABOR RELATIONS

BOARD, ET AL., Respondents.

On Writ of Certiorari to the United States Court of

Appeals for the Ninth Circuit

BRIEF OF LEGAL HISTORIANS AS AMICI

CURIAE IN SUPPORT OF RESPONDENTS

BETHANY R. BERGER

University of Connecticut

School of Law

65 Elizabeth Street

Hartford, CT 06105

Bethany.Berger@uconn.edu

February 12, 2021

KATHARINE M. MAPES *

GWENDOLYN A. HICKS

*Counsel of Record

Spiegel & McDiarmid LLP

1875 Eye Street., NW,

Suite 700

Washington, DC 20006

(202) 879-4000

Katharine.Mapes@spiegelmcd.com

TABLE OF CONTENTS

TABLE OF AUTHORITIES ................................ iii

INTEREST OF AMICI CURIAE ......................... 1

SUMMARY OF THE ARGUMENT ...................... 1

ARGUMENT ......................................................... 5

I. ENGLISH COMMON LAW RECOGNIZED

MANY RIGHTS TO ENTER PRIVATE

LANDS; AMERICAN COMMON AND

STATUTORY LAW EMBRACED THESE

RIGHTS. .......................................................... 5

A. English Law Recognized Many “Rights of

Commons” in Villagers and Long-Users. ... 6

B. English Law Often Recognized “Ways” to

Cross Over Private Lands. ......................... 7

C. English and American Law Recognized

Robust Public Rights to Enter Submerged

Private Lands. ............................................ 7

D. English and American Law Forbade

Innkeepers and Other Public Callings from

Excluding Customers without Reasonable

Cause. ....................................................... 11

II. AMERICAN LAW HAS FREQUENTLY

RECOGNIZED RIGHTS TO ENTER THAT

WENT BEYOND SUCH RIGHTS IN

ENGLISH COMMON LAW........................... 13

A. State and Colonial Law Did Not Authorize

a Broad Action for Trespass Against

Unconsented Entries to Land. ................. 13

B. The Public Had Free Rights to Hunt and

Graze on Unfenced Land. ......................... 17

C. Early Statutes Often Authorized Entry for

Those Engaged in Public Purposes. ......... 22

ii

D. The Airspace Servitude is a Modern

Modification of the Right to Exclude to

Serve Societal Needs. ............................... 24

III.LATER LIMITATIONS ON THE RIGHT TO

ENTER WERE OFTEN NOT TRIUMPHS OF

INDIVIDUAL RIGHTS. ................................ 26

CONCLUSION .................................................... 31

LIST OF AMICI CURIAE ................................. A-1

iii

TABLE OF AUTHORITIES

FEDERAL CASES

Page(s)

Bell v. Maryland,

378 U.S. 226 (1964) ................................ 12

Block v. Hirsh,

256 U.S. 135 (1921) .................................. 4

Bonaparte v. Camden & A.R. Co.,

3 F. Cas. 821 (C.C.N.J. 1830) ................ 23

Brown v. Board of Education,

347 U.S. 483 (1954) ................................ 27

Buford v. Houtz,

133 U.S. 320 (1890) ................................ 20

Folgueras v. Hassle,

331 F. Supp. 615 (W.D. Mich. 1971) ...... 30

Heart of Atlanta Motel, Inc. v. United States,

379 U.S. 241 (1964) .......................... 12, 28

Home Bldg. & Loan Ass’n v. Blaisdell,

290 U.S. 398 (1934) .................................. 5

Klemic v. Dominion Transmission, Inc.,

138 F. Supp. 3d 673

(W.D. Va. 2015) ................................. 23-24

Leffingwell v. Warren,

67 U.S. 599 (1862) .................................. 16

Martin v. Waddell’s Lessee,

41 U.S. 367 (1842) .................................. 10

McKee v. Gratz,

260 U.S. 127 (1922) .....................18, 19, 22

iv

Pa. Coal Co. v. Mahon,

260 U.S. 393 (1922) ................................ 18

Penn. Cent. Transp. Co. v. City of New York,

438 U.S. 104 (1978) .................................. 4

Percy Summer Club v. Astle,

145 F. 53 (C.C.D.N.H. 1906) ............ 10, 11

Pruneyard Shopping Ctr. v. Robbins,

447 U.S. 74 (1980) .................................... 1

Pumpelly v. Green Bay Co.,

80 U.S. 166(1871)..................................... 5

United States v. Causby,

328 U.S. 256 (1946) ................... 3, 4, 13, 25

Yee v. City of Escondido,

503 U.S. 519 (1992) .................................. 4

STATE CASES

Bowlin v. Lyon,

25 N.W. 766 (Iowa 1885) ....................... 27

Cabot v. Thomas,

514 A.2d 1034 (Vt. 1986) ....................... 18

Campbell v. Race,

61 Mass. 408 (1851) ................................. 6

Carson v. Blazer,

2 Binn. 475 (Pa. 1810) ........................... 10

Cushman v. Smith,

34 Me. 247 (1852)................................... 23

In re Catalano,

623 P.2d 228 (Cal. 1981) ........................ 30

v

Kerwhaker v. Cleveland, Columbus & Cincinnati

R.R. Co.,

3 Ohio St. 172 (1854) ............................. 20

Lay v. King,

5 Day 72 (Conn. 1811) ........................... 10

Macon & W. R.R. Co. v. Lester,

30 Ga. 911 (1860) ................................... 21

Markham v. Brown,

8 N.H. 523 (1837) ................................... 12

McConico v. Singleton,

9 S.C.L. (2 Mill) 244 (1818) .................... 18

McCrea v. Marsh,

78 Mass. (12 Gray) 211 (1858) ............... 27

Nashville & Chattanooga R.R. Co. v. Peacock,

25 Ala. 229 (1854) .................................. 21

Proctor v. Adams,

113 Mass. 376 (1873) ............................... 6

State v. DeCoster,

653 A.2d 891 (Me. 1995) ........................ 30

State v. Shack,

277 A.2d 369 (N.J. 1971) ....................... 30

Studwell v. Ritch,

14 Conn. 292 (1841) ......................... 15, 19

Vicksburg & Jackson R.R. Co. v. Patton,

31 Miss. 156 (1856) ................................ 21

Wills v. Walters,

68 Ky. 351 (1869) ................................... 20

Winslow v. Gifford,

60 Mass. (6 Cush) 327 (1850) ................ 23

vi

STATE CONSTITUTIONS

Pa. Const. § 43 (1776) ....................................... 17

Vt. Const. ch. 2,

§ 39 (1777) .......................................... 9, 17

§ 67 ..................................................... 9, 18

FEDERAL STATUTES

42 U.S.C. § 2000a ............................................. 28

49 U.S.C. § 40102(32) ....................................... 25

Air Commerce Act of 1926, ch. 341, § 10, 44

Stat. 568, 574 (1926) .............................. 25

Civil Rights Act of 1875, ch. 114, 18

Stat. 335 (1875) ...................................... 26

STATE STATUTES

15 Del. Laws 322 (1975) ................................... 27

1815 N.H. Laws 428 ......................................... 23

1850 Cal. Stat. 344 ........................................... 16

1956 Miss. Laws 307-08 .................................. 28

2005 Ark. Acts 423 ........................................... 28

Act of Apr. 15, 1782, ch. 481, § 5 (§ 7 P.L.), reprinted

in 10 Statutes at Large of Pennsylvania from

1682 to 1801

(Mitchell & Flanders 1904) ................... 23

Ariz. Code ch. 35, §§ 4-10 (Howell 1865) ......... 16

Ark. Code Ann. § 4-70-101 ............................... 28

Conn. Rev. Stat. § 139 (1849) ........................... 23

Del. Code Ann. tit. 24, § 1501 .......................... 27

Mass. Gen. Laws ch. 8, § 4 (1823) ............... 22-23

Miss. Code Ann. § 97-23-17 .............................. 28

Mont. Rev. Stats. div. 1, ch. 2, §§ 29-36

(Boos 1881) ............................................. 16

vii

N.Y. Rev. Stat. ch. 17, art. 10, § 185(6)

(Duer 1846) ............................................ 23

Tenn. Code §§ 62-7-109, 62-7-110 .................... 27

OTHER AUTHORITIES

Acts and Laws of His Majesty’s Province of New

Hampshire, with Sundry Acts of Parliament

(1771) ..................................................... 19

Acts of Assembly, Now in Force, in the Colony of

Virginia (1752) ....................................... 20

Acts of the Second General Assembly of the

Northwest Territory, ch. 144, § 4 (1802),

reprinted in 1 The Statutes of Ohio and of the

Northwestern Territory, Adopted or Enacted

from 1788 to 1833 Inclusive

(Chase 1833) .......................................... 22

Anderson Hutchinson, Code of Mississippi: Being an

Analytical Compilation of the Public and

General Statutes of the Territory and State,

with Tabular References to the Local and

Private Acts, from 1798-1848

(1848) ..................................................... 16

Bethany R. Berger, It’s Not About the Fox: The

Untold History of Pierson v. Post,

55 Duke L. J. 1089 (2006) ........................ 6

Brian Sawers, Original Misunderstandings: The

Implications of Misreading History in Jones,

31 Ga. St. U. L. Rev. 471 (2015) ...... 14, 15

Brian Sawers, Property Law As Labor Control in the

Postbellum South, 33 Law & His. Rev. 351

(2015) ............................................... 17, 29

Carol M. Rose, Canons of Property Talk, or

Blackstone’s Anxiety, 108 Yale L.J. 601

viii

(1998) ....................................................... 5

Carol M. Rose, The Comedy of the Commons:

Custom, Commerce, and Inherently Public

Property, 53 U. Chi. L. Rev. 711

(1986) ................................................... 7, 8

Civil Aeronautics: Legislative History of the Air

Commerce Act of 1926 Approved May 20, 1926

Together with Miscellaneous Legal Materials

Relating to Civil Air Navigation

(1941) ..................................................... 24

David B. Schorr, How Blackstone Became a

Blackstonian, 10 Theoretical Inquiries in L.

103 (2009)............................................... 14

David Thomas Konig, Law and Society in Puritan

Massachusetts: Essex County, 1629-1692

(1979) ..................................................... 26

Eric T. Freyfogle, On Private Property: Finding

Common Ground on Ownership of Land

(2007) ..........................................17, 19, 29

Harold J. Brouilette & Charles A. Reynard, Index

Digest of Acts of the 1954 Louisiana

Legislature, 15 La. L. Rev. 103

(1954) ..................................................... 28

Henry W. Ballantine, Title by Adverse Possession,

32 Harv. L Rev. 135 (1918) .................... 16

James Davis, Complete Revisal of All the Acts of

Assembly, of the Province of North-Carolina,

Now in Force and Use (1773) ................. 20

James Kent, Commentaries on American Law

(1827) ..................................................... 12

John A. Lovett, Progressive Property in Action: The

Land Reform (Scotland) Act 2003,

89 Neb. L. Rev. 739 (2011)....................... 7

ix

John Haywood, Statutes Laws of the State of

Tennessee of a Public and General Nature;

Revised and Digested (1831) .................. 16

Joseph Chitty, Treatise on the Game Laws and of

Fisheries (1812) ........................................ 8

Joseph William Singer, No Right to Exclude: Public

Accommodations and Private Property,

90 Nw. U. L. Rev. 1283 (1996) ............... 26

Kenneth M. Mack, Law, Society, Identity, and the

Making of the Jim Crow South: Travel and

Segregation of Tennessee Railroads, 1875

1905, 24 L. of Soc. Inquiry 377

(1999) ..................................................... 27

Lane v. Cotton [1701],

88 Eng. Rep. 1458 (PC) .......................... 11

Laws of Connecticut: An Exact Reprint of the

Original Edition of 1673 (1865)............. 19

Marc Galanter, Reading the Landscape of Disputes:

What We Don’t Know (and Think We Know)

About Our Allegedly Litigious Society,

31 UCLA L. Rev. 4 (1983) ...................... 15

Mark R. Signon, Hunting and Posting on Private

Land in America,

54 Duke L.J. 549 (2004) ......................... 18

Matthew Hale, A Treatise de Juris Maris et

Brachorium Ejusdem, reprinted in Stuart

Moore, A History of the Foreshore and the

Law Relating Thereto (1888) Moore, A

History of the Foreshore and the Law

Relating Thereto (1888) ........................... 8

Restatement (Second) of Torts, ch. 8, topic 2

intro. note & §§ 191-211

(Am. L. Inst. 1965) .................................. 4

x

Samuel Neville, Acts of the General Assembly of the

Province of New-Jersey, from the Time of the

Surrender of the Government in the Second

Year o the Reign of Queen Anne, to This

Present Time (1752) ............................... 19

Stuart Banner, Who Owns the Sky: The Struggle to

Control Airspace from the Wright Brothers On

(2008) ..................................................... 24

The Book of the General Lavves and Libertyes

Concerning the Inhabitants of the

Massachusets Collected out of the Records of

the General Court, for the Several Years

Wherin They Were Made and Established, and

Now Revised by the Same Court, and Disposed

into an Alphabetical Order, and Published by

the Same Authority in the General Court

Holden at Boston, in May 1649, reprinted in

The Colonial Laws of Massachusetts,

Reprinted from the Edition of 1660, with the

Supplements to 1672, Containing Also, the

Body of Liberties of 1641 (William H.

Whitmore ed. 1889) (1660) ................. 9, 17

The Code of Tennessee: Being a Compilation of the

Statute Laws of the State of Tennessee, of a

General Nature, in Force June 1, 1884

(1884) ..................................................... 27

The Dispossall of the Vessell (1639), reprinted in First

Book of Records of the Town of Southampton

(John H. Hunt ed. 1874) .......................... 9

Thomas W. Merrill, Property and the Right to

Exclude, 77 Neb. L. Rev. 730 (1998) .... 4, 5

William Blackstone, Commentaries on the Laws of

England in Four Books

xi

(Liberty Fund, Inc. 2011)

(1753) ........................ 5, 6, 7, 12, 16, 18, 24

INTEREST OF AMICI CURIAE 1

The undersigned are law professors who

research and write in legal history.

We are

concerned that advocates in the past have presented

this Court with a misleading account of early English

and American property law. We write to provide the

Court with a more complete history of the rights to

exclude and enter private land.

SUMMARY OF THE ARGUMENT

An absolute right to exclude has never existed

in Anglo-American law. Early American law and its

English precedents authorized the public and

governmental officials to enter private property for

multiple purposes. These non-trespassory entries

are not limited to those that might incur public

harms but reflect a general sense of societal

interests. When owners challenged these measures,

courts repeatedly held that they were neither

trespasses

nor

violations

of

constitutional

guarantees.

To hold that California’s narrowly

tailored statute to protect farmworker rights is a

taking would both violate this Court’s precedent and

“freeze the common law” of trespass in violation of

the Anglo-American tradition. Pruneyard Shopping

Ctr. v. Robbins, 447 U.S. 74, 93 (1980) (Marshall, J.,

concurring).

English common law recognized a wide variety

of situations in which individuals, the public, or local

1 A list of amici curiae is provided in the Appendix. No counsel

for a party authored this brief in whole or in part, and no

person other than amici and their counsel made a monetary

contribution to this brief’s preparation and submission. The

parties have consented in writing to the filing of this brief.

2

communities, could enter private property without

the consent of the landowner. Rights to graze

livestock existed in villagers as a matter of

“universal right” and in others by long use. Ways—

public or community rights to cross private land—

were customary, and England and Scotland have

protected and extended them by statute in the

twentieth century.

English common law also

guaranteed public rights to enter private lands under

navigable waters up to the high tide line to fish and

to boat. The right of the public to enter property of

inns and other common carriers was so strong that

individuals could bring an action of trespass against

owners who unreasonably excluded them. All of

these rights were recognized, enforced, and

sometimes expanded by early American common and

statutory law.

From the beginning, moreover, American

common and statutory law created a strong tradition

of rights to enter that did not exist under English

common law. See also Resp’ts’ Br. at 31-32. Courts

recognized that these rights went beyond English

common law, but affirmed them as protections of

American interests and American freedom.

Eighteenth century American statutes provided a

cause of action for trespass to land only against those

who committed a particular injury to property, and

state statutes of limitations for trespass were also

often far shorter than those in England. Until well

into the nineteenth century, the public could enter

unenclosed lands to hunt and graze their animals.

The right to graze was so strong in many southern

states that landowners were liable for injuries to

livestock who wandered onto their unfenced land.

3

Early statutes also authorized entry to land for

inspections, surveys, and other public purposes. In

the early twentieth century, American law

recognized an entirely new right to enter,

authorizing planes to fly over private owners’ lands

despite the common law maxim that landowners’

rights existed ad coelom et ad infernos. This Court

approved this change in United States v. Causby,

holding that such entries “are not a taking, unless

they are so low and so frequent as to be a direct and

immediate interference with the enjoyment and use

of the land.” 328 U.S. 256, 266 (1946).

More recent limitations on the right to enter

were rarely triumphs for individual freedom. Some

nineteenth century limitations simply reflected a

changing sense of societal and economic interests.

But others deliberately increased rights of the more

powerful over the less powerful. Famously, the

enclosure of the commons in England displaced the

common people in favor of wealthy landowners,

leading to great poverty and political resistance. In

the United States, many states granted businesses

rights to deny service to anyone to allow them to

exclude African Americans. In a strand of this

history particularly relevant to a case involving

workers’ rights, several southern states prevented

hunting and grazing on unfenced land after the Civil

War to prevent free African Americans from

supporting themselves, thereby giving plantation

owners more power to control their labor.

Although some of the history presented in this

brief is not well known outside the academy, modern

law reflects this tradition of temporary entries to

private property in the public interest.

The

4

Restatement (Second) on Torts, for example,

recognizes twenty different “Privileges [to enter land]

Arising Irrespective of Any Transaction between the

Parties,” noting that these were only “the more usual

privileges to enter land in the possession of another,”

and “not intended to be exclusive.” Restatement

(Second) of Torts, ch. 8, topic 2, intro. note & §§ 191211 (Am. L. Inst. 1965). Indeed, Professor Thomas

Merrill, much cited for his thesis that the right to

exclude is the “sine qua non” of property, emphasizes

that he does not argue that the right to exclude must

be “unqualified,” recognizing instead that all

property is characterized by “different types and

degrees of exclusion rights.” Thomas W. Merrill,

Property and the Right to Exclude, 77 Neb. L. Rev.

730, 753 (1998).

This Court’s precedents do the same. They

acknowledge that a taking “may more readily be

found when the interference with property can be

characterized as a physical invasion by government,”

Penn. Cent. Transp. Co. v. City of New York, 438 U.S.

104, 124 (1978), and that invasions are takings if

they cause “substantial” harm, Causby, 328 U.S. at

266, or “serious interruption to the common and

necessary use of property,” Pumpelly v. Green Bay

Co., 80 U.S. 166, 179 (1871).

But temporary

invasions to protect the interests of those whom

owners have invited onto land are not takings so long

as the owners retain a reasonable return on their

investment. Yee v. City of Escondido, 503 U.S. 519,

528-29 (1992) (upholding rent control statute

although renters of mobile home lots could transfer

right to occupy to strangers); Block v. Hirsh, 256 U.S.

135, 157-58 (1921) (upholding a temporary

5

restriction on the landlord’s power to evict); Home

Bldg. & Loan Ass’n v. Blaisdell, 290 U.S. 398 (1934)

(holding a Minnesota statute delaying eviction of

foreclosed borrowers constitutional).

The arguments of Petitioners and their amici,

in other words, are contrary to the American legal

tradition. They ignore the traditions of the common

law both historically and today, which make limited

rights to enter and exclude in the public interest part

of the definition of property itself. Accepting their

claims would enshrine in the Constitution an

understanding of property that would have been

wholly foreign to its drafters. If Petitioners seek an

absolute right to exclude, they must look for it

somewhere other than our common legal heritage.

ARGUMENT

I. ENGLISH COMMON LAW RECOGNIZED

MANY RIGHTS TO ENTER PRIVATE

LANDS; AMERICAN COMMON AND

STATUTORY LAW EMBRACED THESE

RIGHTS.

English common law recognized many rights

to enter private lands without permission. Scholars

agree that those believing that Blackstonian

property is about “sole and despotic dominion” and

“total

exclusion,”

1

William

Blackstone,

Commentaries on the Laws of England in Four Books

304 (Liberty Fund, Inc. 2011) (1753), “have not read

much Blackstone.”

Carol M. Rose, Canons of

Property Talk, or Blackstone’s Anxiety, 108 Yale L.J.

602, 601 (1998); see also Merrill, supra, at 753

(agreeing that “there is no question but that

[Blackstone’s] statement is hyperbolic”). Readers

6

who continue past Blackstone’s introductory

rhetorical flourish will find hundreds of pages of

rights to enter the lands of others. These include

rights to enter land to graze animals, fish, or simply

crossover, and obligations by public callings to serve

all customers.

Early American law adopted many of these

rights, often extending them past their English

origins. While some rights emerged from immediate

necessity, see, e.g., Proctor v. Adams, 113 Mass. 376

(1873); Campbell v. Race, 61 Mass. 408, 412 (1851),

most did not. Rather, the law at the time of the

Founders recognized multiple rights to enter when it

served the public interest.

A. English Law Recognized Many “Rights of

Commons” in Villagers and Long-Users.

Rights of commons were a key feature of early

English property law. 1 Blackstone, supra, at 32223. Farmers could graze livestock on private waste or

fallow lands in a village as “a matter of most

universal right.” Id. at 322. The right did not arise

from grant, but existed “for the encouragement of

agriculture” and the “necessity of the thing.” Id. The

same public interest might lead to commons of

piscary (fishing), turbary (digging peats), and estover

(collecting wood). Id. at 322-23. Such commons

might also arise from “immemorial usage and

prescription.” Id. at 322. New England colonists

continued this tradition, planning their communities

around commons with rights in all proprietors of the

town. See Bethany R. Berger, It’s Not About the Fox:

The Untold History of Pierson v. Post, 55 Duke L.J.

1089, 1110-15 (2006). As discussed in section II,

American law also extended these rights far beyond

7

their English common law origins, recognizing a

wealth of use rights in the entire public.

B. English Law Often Recognized “Ways” to

Cross Over Private Lands.

Blackstone also recognized the long English

tradition of rights to cross over private lands.

1 Blackstone, supra, at 323. These “ways” included

not only familiar rights on government highways and

private easements by grant, but also “common ways,

leading from a village into the fields,” and broad

ways by prescription based “immemorial []us[e].”

Id. at 323-24. American law was more grudging

toward public rights of way, but still provided several

means by which use of roads over private land might

ripen into public ownership. Carol M. Rose, The

Comedy of the Commons: Custom, Commerce, and

Inherently Public Property, 53 U. Chi. L. Rev. 711,

724-26 (1986). The United Kingdom has retained a

robust tradition of public ways over private land,

expanding them by statute in recent decades. See

John A. Lovett, Progressive Property in Action: The

Land Reform (Scotland) Act 2003, 89 Neb. L. Rev.

739, 769-77 (2011) (discussing the National Parks

and Access to the Countryside Act of 1949 and

Countryside and Rights of Way Act of 2000 in

England, and the Land Reform (Scotland) Act of

2000).

C. English and American Law Recognized

Robust Public Rights to Enter

Submerged Private Lands.

English common law recognized even broader

public rights to enter private submerged and tidal

lands. In the 1660s, Sir Matthew Hale declared in

his celebrated De Jure Maris that “the common

8

people of England have regularly a liberty of fishing

in the seas or creeks or arms thereof, as a publick

common of piscary, and may not without injury to

their right be restrained of it.” Matthew Hale, A

Treatise de Juris Maris et Brachorium Ejusdem,

reprinted in Stuart Moore, A History of the Foreshore

and the Law Relating Thereto 377 (1888). Although

submerged and tidal lands “may be a private man’s

freehold,

yet it is charged with a publick interest of the

people which may not be prejudiced or damnified.”

Id. at 404-05. A leading English treatise declared

that these rights were “of such great national

importance,” they inspired “numerous statutes for

the regulation and preservation of them” beginning

with the Magna Carta. 1 Joseph Chitty, Treatise on

the Game Laws and of Fisheries 245-46 (1812). Fish

weirs on private lands could be torn down as public

nuisances, and the public had a right to fish and dry

nets on the seashore. Id. at 244, 247. Although

English law occasionally permitted grants of an

exclusive fishery, landowners had the burden of

proving the grant, and even then could not deny

boats the right to dock on one’s banks without

evidence of abuse of the right. Id. at 269-75.

American law enthusiastically embraced and

even extended these rights. See Rose, The Comedy of

the Commons, supra, at 727. Massachusetts’

Liberties Common (1641-1647) provided that “no

town shall appropriate to any particular person or

persons, any great pond containing more than ten

acres of land, and . . . in all creeks, coves, and other

places, about and upon salt-water, where the sea

ebbs and flowes, the proprietor of the land adjoyning

9

shall have propriety to the low-water-mark . . .

Provided that such proprietor shall not by this

liberty, have power to stop or hinder the passage of

boates or other vessels, in or through any sea, creeks

or coves to other men’s houses or lands.” The Book of

the General Lavves and Libertyes Concerning the

Inhabitants of the Massachusets Collected out of the

Records of the General Court, for the Several Years

Wherin They Were Made and Established, and Now

Revised by the Same Court, and Disposed into an

Alphabetical Order, and Published by the Same

Authority in the General Court Holden at Boston, in

May 1649, at 50 (1660) (“Massachusetts’ Liberties

Common”), reprinted in The Colonial Laws of

Massachusetts, Reprinted from the Edition of 1660,

with the Supplements to 1672, Containing Also, the

Body of Liberties of 1641, at 170 (William H.

Whitmore ed. 1889). The founding documents of

Southampton, New York, similarly guaranteed that

“noe person . . . whatsoeuer shall challenge or claime

any proper Interest in seas, rivers, creekes, or brooks

howsoeuer bounding or passing through his grouude

but ffreedom of fishing, fowling and nauigation shall

be common to all within the bankes of the said

waters whatsoeuer.” The Dispossall of the Vessell 4

(1639), reprinted in First Book of Records of the Town

of Southampton (John H. Hunt ed. 1874). Vermont

even enshrined in its original constitution the right

“to fish in all boatable and other waters (not private

property) under proper regulations.” Vt. Const. ch.

2, § 39 (1777) (now codified at Vt. Const. ch. 2, § 67).

With or without positive law on the issue,

early American courts also recognized these rights.

The Connecticut Supreme Court, for example,

10

declared these “public and common rights” were a

“title paramount to the title of the” landowner. Lay v.

King, 5 Day 72, 77 (Conn. 1811).

This Court

thoroughly examined the issue in Martin v.

Waddell’s

Lessee,

41 U.S. 367 (1842), holding that a grant of lands

under navigable waters from the Duke of York could

not prevent New Jersey from authorizing another’s

oyster bed there. “It would require very plain

language in these letters-patent,” the Court declared,

“to persuade us that the public and common right of

fishery in navigable waters, which has been so long

and so carefully guarded in England, and which was

preserved in every other colony founded on the

Atlantic borders, was intended, in this one instance,

to be taken away.” Id. at 414.

Some states went further than the English

common law, rejecting the principle that the

sovereign could grant an exclusive fishery, or even

the navigability limitation. In 1810, for example, the

Pennsylvania Supreme Court rejected the English

common law principle that riparian owners had an

exclusive fishery from the banks of freshwater rivers

unaffected by the tide. Carson v. Blazer, 2 Binn. 475,

477-78 (Pa. 1810). Declaring that “the uniform idea

has ever been, that only such parts of the common

law as were applicable to our local situation have

been received in this government,” the court denied a

landowner’s trespass claim against defendants

fishing from an island in the middle of the

Susquehanna River. Id. at 477-78, 483-84. New

Hampshire adopted a particularly expansive version

of fishing rights, as described in Percy Summer Club

v. Astle, 145 F. 53 (C.C.D.N.H. 1906). The court

11

declared that English laws permitting exclusive

fisheries in landowners “were regarded here as

oppressive,” and “contrary to the fundamental rules

of law, because, as the proprietor of the soil has only

the

usufruct

of

water . . . there would seem to be no reason for

excluding the rest of the community therefrom so

long as it can share without trespassing, whether by

passage through the forests or by canoes or boats up

the rivers and streams.” Id. at 63. This distinctly

American history protected “the interest of the public

at large,” creating a “natural presumption . . . in

favor of free fishing and free fowling in the

nonnavigable rivers, ponds, and lakes in New

Hampshire, and in the forests so long as they remain

forests.” Id. at 64.

D. English and American Law Forbade

Innkeepers and Other Public Callings

from Excluding Customers without

Reasonable Cause.

If a business held itself out to serve the public,

individuals not only had a right to enter the

property, but could seek damages if the owner

excluded them. In 1701, Sir John Holt, Lord Chief

Justice of the King’s Bench opined that “where-ever

any subject takes upon himself a public trust for the

benefit of the rest of his fellow-subjects, he is eo ipso

bound to serve the subject . . . . If an inn-keeper

refuse to entertain a guest where his house is not

full, an action will lie against him . . . .” Lane v.

Cotton [1701], 88 Eng. Rep. 1458, 1464-65 (PC).

Blackstone adopted this view, writing that “if an innkeeper, or other victualler, hangs out a sign and

opens his house for travelers, it is an implied

12

engagement to entertain all persons who travel that

way; and . . . an action on the case will lie against

him for damages if he, without good reason refuses to

admit

a

traveler.”

2

Blackstone,

supra,

at 100.

Early American Law fully adopted this

principle. Chancellor James Kent explained that

common carriers “are bound to do what is required of

them in the course of their employment . . . and if

they refuse without some just ground, they are liable

to an action.” 2 James Kent, Commentaries on

American Law 464-65 (1827); see also id. at 445, 499

(including common carriers, innkeepers, farriers,

porters, and ferrymen in this rule). In an 1837 case,

moreover, the New Hampshire Supreme Court held

that an innkeeper could not exclude a stagecoach

driver for soliciting passengers in the public rooms.

Markham v. Brown, 8 N.H. 523 (1837). The court

declared “[t]here seems to be no good reason why the

landlord should have the power to discriminate in

such cases . . . any more than he has the right to

admit one traveller [sic] and exclude another, merely

because it is his pleasure.” Id. at 529-30. This Court

has also recognized this principle, noting that public

accommodations statutes “but codify the commonlaw innkeeper rule which long predated the

Thirteenth Amendment.” Heart of Atlanta Motel, Inc.

v. United States, 379 U.S. 241, 261 (1964); Bell v.

Maryland,

378 U.S. 226, 255 (1964) (Douglas, J., concurring)

(opining that “the good old common law” enshrined

in the Fourteenth Amendment, included “[t]he duty

of common carriers to carry all, regardless of race,

creed, or color.”).

13

II. AMERICAN LAW HAS FREQUENTLY

RECOGNIZED RIGHTS TO ENTER THAT

WENT BEYOND SUCH RIGHTS IN

ENGLISH COMMON LAW.

Although Americans adopted much of English

common law, they insisted on their right to depart

from it to serve the needs of their new country.

Early trespass statutes provided no general right to

exclude, creating actions for trespass only for those

who committed specific harms on other’s land.

Statutes of limitations for trespass were often far

shorter than they were in England, allowing entries

of dubious legality to quickly ripen into full title. The

colonies and states, moreover, almost uniformly

recognized the rights of the public to enter unfenced

land to hunt and graze livestock. Statutes also

frequently authorized officials and others to enter

private property to carry out public purposes. The

advent of airflight led the United States to again

shape the common law to suit evolving societal

needs, creating a new concept of “navigable

airspace.” When the question came before the

Supreme Court in United States v. Causby, 328 U.S.

256 (1946), this Court followed the traditional path

of allowing temporary entry so long as it did not

cause substantial damage to use and enjoyment of

land. Id. at 266.

A. State and Colonial Law Did Not

Authorize a Broad Action for Trespass

Against Unconsented Entries to Land.

Although

most

states

today

broadly

criminalize unprivileged intentional entry to land by

statute, early American law reflects no such general

prohibition. Instead eighteenth-century American

14

law appears to have authorized trespass actions

only for activities believed particularly harmful to

the interests of the landowner or the public. See

Brian Sawers, Original Misunderstandings: The

Implications of Misreading History in Jones, 31 Ga.

St. U. L. Rev. 471 (2015). Although early cases and

treatises frequently invoke Blackstone to support

multiple rights to enter and use land owned by

others, American cases did not even quote

Blackstone’s “absolute dominion” language before

1837 and did so only three more times before 1900;

the classic treatises by Chancellor Kent and Justice

Story did not do so at all. David B. Schorr, How

Blackstone Became a Blackstonian, 10 Theoretical

Inquiries in L. 103, 120-22 (2009).

A study of the 409 reported cases using the

word “trespass” between 1701 and 1800 revealed

none arising from simple entry to land. Sawers,

Original Misunderstandings, supra, at 491-92. Most

reflect the old sense of trespass on the case as a

broad writ for torts, while others were disputes over

ownership of land. Id. The three cases that arose

from temporary entries all involved not only entering

land but also taking something of value, whether

mussels, timber, or honey. Id. Although one might

assume that these cases reflect only the tip of the

legal claims iceberg, individuals were far more

litigious in colonial America, with between eleven

and twenty-four percent of the population involved in

a lawsuit in any given year. Marc Galanter, Reading

the Landscape of Disputes: What We Don’t Know (and

Think We Know) About Our Allegedly Litigious

Society,

31

UCLA

L. Rev. 4, 41 (1983).

15

Eighteenth century trespass statutes also

reveal no general prohibitions on entering another’s

land. Early statutes only sanctioned those who stole

the owner’s property or otherwise caused a

particular harm after entry.

Sawers, Original

Misunderstandings, supra, at 499. Between 1723

and 1806, Connecticut, New Hampshire, Vermont,

Pennsylvania, and New York all enacted laws

declaring it a trespass to log on another’s land

without permission. Id. at 499-501. Other statutes

reflect more distinctive harms. New Hampshire, for

example, sought to restrain ‘“sundry evil minded

persons”’ by declaring it a trespass to settle on

unclaimed state lands in 1778, and made it a

trespass to enter a saltmarsh and remove flattsweed

without the landowner’s permission in 1794. Id. at

499-500 (quoting Act of Feb. 15, 1791, 1792 N.H.

Laws 261, 261). As discussed below, moreover, all

early American states enacted statutes providing

that it was a trespass for cattle to enter land with a

“good and sufficient fence.” See infra Section II.b.

These statutes declaring specific activities were

trespasses suggest that other entries were not. The

Connecticut Supreme Court, for example, adopted

this interpretation in Studwell v. Ritch, 14 Conn. 292

(1841), holding that its statutes providing that entry

by livestock into fenced lands was a trespass meant

that entry into unfenced land was not. Id. at 295.

A number of American states also enacted

statutes of limitations for trespass far shorter than

those provided in English law.

Statutes of

limitations for trespass are significant because

occupying land openly, exclusively, and without

permission for the limitations period gives rise to

16

ownership by adverse possession. See Leffingwell v.

Warren, 67 U.S. 599, 605 (1862) (“The lapse of the

time limited by such statutes not only bars the

remedy, but it extinguishes the right, and vests a

perfect title in the adverse holder”; creating remedies

beyond a state statute of limitations would “usurp

the function of another and a distinct governmental

department.”). Blackstone stated that fifty years

was the time limit for actions to recover possession of

land, 2 Blackstone, supra, at 113-14, although a

twenty-year limitation soon became the norm in

England. Henry W. Ballantine, Title by Adverse

Possession, 32 Harv. L Rev. 135, 138-39 (1918).

While some states adopted twenty-year limits, many

states, particularly on the frontier, adopted shorter

ones to facilitate resolution of claims. Tennessee and

Mississippi, for example, both prohibited suits for

recovery of land more than seven years after a cause

accrued. John Haywood, Statutes Laws of the State of

Tennessee of a Public and General Nature; Revised

and Digested 215-16 (1831); Anderson Hutchinson,

Code of Mississippi: Being an Analytical Compilation

of the Public and General Statutes of the Territory

and State, with Tabular References to the Local and

Private Acts, from 1798-1848, at 829 (1848).

California, Arizona, and Montana allowed only five

years to sue for trespass. 1850 Cal. Stat. 344, Ariz.

Code ch. 35, §§ 4-10 (Howell 1865), Mont. Rev. Stats.

div. 1, ch. 2, §§ 29-36 (Boos 1881). All of these

statutes radically alter the moment at which

trespass turns into title.

17

B. The Public Had Free Rights to Hunt and

Graze on Unfenced Land.

A striking example of a distinctly American

property right is the public right to hunt and graze

on private unfenced land in most parts of the country

until the mid-nineteenth century. Eric T. Freyfogle,

On Private Property: Finding Common Ground on

Ownership of Land 30-31 (2007) (“A full right to

exclude was thus the exception for private lands, not

the norm.”). In 1788, when the Founders drafted

and adopted the U.S. Constitution, “the entire

country was open range.” Brian Sawers, Property

Law As Labor Control in the Postbellum South, 33

Law & His. Rev. 351, 352 (2015). Far from a

violation of rights, these entries were considered part

of the fundamental rights of Americans.

See

Freyfogle, supra, at 46-47.

The right to enter property to hunt was

enshrined in the earliest American laws.

Massachusetts’ Liberties Common (1641-1647)

insisted that any man might “pass and repass on foot

through any mans propriety” to fish at the great

ponds within the colony so long as they “trespass not

on any mans corn or meddow.” Massachusetts’

Liberties Common at 50. The right to hunt on

unenclosed lands was so important that Vermont

and Pennsylvania included it in their original

constitutions. See Vt. Const. ch. 2, § 39 (1777)

(guaranteeing inhabitants the right to hunt in

season “on the lands they hold, and on other lands

(not enclosed)”); Pa. Const. § 43 (1776) (guaranteeing

inhabitants the right to hunt in season “on the lands

they hold, and on all other lands therein not

18

inclosed”). Vermont’s constitution still guarantees

this right. Vt. Const. ch. 2, § 67.

Even states without such constitutional

provisions recognized the right. In 1818, for example,

the Constitutional Court of Appeals of South

Carolina dismissed a trespass claim against a

hunter, opining that it “never yet entered the mind of

any man” that the right could “be defeated at the

mere will and caprice of an individual.” McConico v.

Singleton, 9 S.C.L. (2 Mill) 244, 352-53 (1818). This

tradition remains with us in limited form today. A

2004 survey found that twenty-nine states permitted

hunting on private unenclosed lands unless the

owner had posted a written prohibition, twentyseven by statute. Mark R. Signon, Hunting and

Posting on Private Land in America, 54 Duke L.J.

549, 560-61 (2004).

American courts knew that their hunting

rights departed from the common law and celebrated

this fact. Blackstone believed that English law

initially restricted the right of hunting to the king,

extending it only grudgingly to those who hunted on

their own lands. 1 Blackstone, supra, at 263-65. The

Vermont Supreme Court, however, has repeatedly

rejected landowners’ trespass claims against hunters

even as it acknowledged that the provision altered

the common law baseline. See Cabot v. Thomas, 514

A.2d 1034, 1037-38 (Vt. 1986).

Justice Oliver

Wendell Holmes wrote an opinion for this Court

reaching the same conclusion in McKee v. Gratz, 260

U.S. 127, 136 (1922). McKee, written the same term

the Court decided Pennsylvania Coal Co. v. Mahon,

260 U.S. 393 (1922), refused to hold it was trespass

“as [a] matter of law” to enter private land, harvest

19

mussels from a marked bed, and take the shells to

make buttons, because American practice had

mitigated the “strict rule of the English common law”

prohibiting hunting on private property. McKee, 260

U.S. at 136.

Well into the nineteenth century, American

law also recognized broad public rights to enter

unfenced land to graze livestock. Freyfogle, supra, at

33. Most of the original colonies and states had laws

providing that entry by livestock only gave rise to an

action for trespass if the landowner had a “good and

sufficient” fence to keep them out, excepting only

those considered particularly destructive, like swine

and “unruly” cattle and horses. See, e.g., Laws of

Connecticut: An Exact Reprint of the Original Edition

of 1673, at 24 (1865); Acts and Laws of His Majesty’s

Province of New Hampshire, with Sundry Acts of

Parliament 122 (1771); Samuel Neville, Acts of the

General Assembly of the Province of New-Jersey, from

the Time of the Surrender of the Government in the

Second Year of the Reign of Queen Anne, to This

Present Time 209 (1752).

Courts recognized that these laws departed

from the English common law. The Connecticut

Supreme Court dismissed a trespass case involving a

cow that entered and damaged unfenced land,

declaring, “[i]t is very clear, that according to the

English common law [it is] the duty of every man to

take care of his cattle; and if he suffers them to

trespass upon the lands of others, he is generally

liable for the damages, whether those lands were, or

were not, enclosed by a sufficient fence,” but “such is

not the law of Connecticut,” and the plaintiff could

not recover. Studwell v. Ritch, 14 Conn. 292, 295

20

(1841); see also Kerwhaker v. Cleveland, Columbus &

Cincinnati R.R. Co., 3 Ohio St. 172 (1854) (holding

stock owner not liable for allowing his livestock to

run upon railroad tracks).

When a Kentucky

landowner challenged the constitutionality of

statutes preventing suits to recover for damages by

livestock on unfenced land, the Kentucky Supreme

Court summarily held “we entertain no doubt of the

constitutionality of the statutes referred to,” which

were intended “to provide a just and reasonable

protection for the rights of owners of inclosed land

and of stock” Wills v. Walters, 68 Ky. 351, 352 (1869).

This Court affirmed this departure from the

common law in 1890, rejecting an action for damages

from sheep herds grazing on private unfenced lands

interspersed with lands in the public domain.

Buford v. Houtz, 133 U.S. 320 (1890). This Court

declared that applying “principle of law derived from

England” would violate the “custom of nearly a

hundred years, that the public lands of the United

States . . . shall be free to the people who seek to use

them, where they are left open and uninclosed.” Id.

at 326.

The statutes of southern states, went even

further, making landowners liable for damages to

livestock that wandered onto their unfenced land.

See, e.g., James Davis, Complete Revisal of All the

Acts of Assembly, of the Province of North-Carolina,

Now in Force and Use 500 (1773); Acts of Assembly,

Now in Force, in the Colony of Virginia 308-09

(1752). In 1854, when a railroad argued the common

law of trespass as a defense to an action for killing a

cow on its tracks, the Alabama Supreme Court

declared that Alabama laws adopted “contain

21

provisions in direct repugnance to the common law

on this subject, and to the extent of this repugnance

repealed it.” Nashville & Chattanooga R.R. Co. v.

Peacock, 25 Ala. 229, 232 (1854). These laws, the

court continued, “show conclusively that the

unenclosed lands of this State are to be treated as

common pasture for the cattle and stock of every

citizen.” Id. In Vicksburg & Jackson Railroad Co.

v. Patton, 31 Miss. 156 (1856), the Mississippi

Supreme Court similarly rejected the English

common law rule as “inapplicable to the condition

and circumstances of the people of those States, and

repugnant to the custom and understanding of the

people, from their first settlement down to the

present time.” Id. at 184-85. In a policy “sanctioned

by strong reason of public convenience,” it declared,

unfenced lands “have been understood, from the

early settlement of the State, to be a common of

pasture.” Id. at 185. The Georgia Supreme Court

rejected a trespass defense to liability with equal

vehemence: “Such Law as this would require a

revolution in our people’s habits of thought and

action. A man could not walk across his neighbor’s

unenclosed land, nor allow his horse, or his hog, or

his cow, to range in the woods nor to graze on the old

fields, or the ‘wire grass,’ without subjecting himself

to damages for a trespass. Our whole people, with

their present habits, would be converted into a set of

trespassers. We do not think that such is the Law.”

Macon & W. R.R. Co. v. Lester, 30 Ga. 911, 914

(1860).

These comprehensive rights to enter were not

designed to abate public harm; instead, they

conferred a benefit on the public. Contra Br. of the

22

Cato Inst. et al. at i, Dec. 31, 2020 (suggesting that

temporary rights to enter are takings unless they

prevent a public harm). Nor, as McKee v. Gratz’s,

260 U.S. 127, treatment of the defendants’ buttonmaking reveals, did this right turn on necessity.

While hunting and grazing were once more

important for subsistence than they are today,

neither colonial nor modern law ever limited entry

rights to those who needed to hunt or graze on

private lands to eat. Instead, the centuries-old

American right to hunt and graze on unenclosed

lands, like the California statute at issue here,

reflects an American tradition of limited access to

private property to protect the public interest.

C. Early Statutes Often Authorized Entry

for Those Engaged in Public Purposes.

Early American statutes frequently authorized

public officials and others carrying out public

purposes to enter private property. In 1801, for

example, the Northwest Territory authorized officers

to “demand admittance, in the day time, into any

house or chamber” upon oath or affirmation by any

credible person that goods subject to civil attachment

were in there. Acts of the Second General Assembly of

the Northwest Territory, ch. 144, § 4 (1802), reprinted

in 1 The Statutes of Ohio and of the Northwestern

Territory, Adopted or Enacted from 1788 to 1833

Inclusive 311 (Chase 1833).

States regularly authorized officials tasked

with inspecting goods to enter property to search for

such goods. Such officials could, for example, “enter

on board any ship or vessel whatsoever, lying and

being in the harbor where such inspector is

authorized to inspect.” See, e.g., Mass. Gen. Laws ch.

23

8, § 4 (1823) (concerning the quality of “pot and pearl

ashes”); 1815 N.H. Laws 428 (same); see also N.Y.

Rev. Stat. ch. 17, art. 10, § 185(6) (Duer 1846)

(allowing inspectors to enter the vessels to search for

hops). More idiosyncratically, Connecticut law gave

towns “authority, at all times, to enter and inspect”

all schools and medical institutions using cadavers.

Conn. Rev. Stat. § 139 (1849).

Government officials and private persons

acting under official authority could also enter land

to survey it in preparation for exercise of eminent

domain. E.g., Act of Apr. 15, 1782, ch. 481, § 5

(§ 7 P.L.), reprinted in 10 Statutes at Large of

Pennsylvania from 1682 to 1801, at 480 (Mitchell &

Flanders 1904). Courts repeatedly found that such

entries were not takings unless the surveyors

damaged the land. As Justice Baldwin wrote in

riding circuit in New Jersey, “[a]n entry on private

property for the sole purpose of making the

necessary explorations for location, is not taking it . .

. nothing is taken from him, nothing is given to the

company.” Bonaparte v. Camden & A.R. Co., 3 F.

Cas. 821, 831 (C.C.N.J. 1830), see also Cushman v.

Smith, 34 Me. 247, 260-62 (1852).

The

Massachusetts Supreme Court similarly clarified

that in takings, the property was “permanently

subjected

to

a

servitude,” but

temporary

“interference with the absolute right of the owner of

real estate . . . is one of every day’s occurrence;

indeed, so common, as to be acquiesced in without

remonstrance, or even a question as to the right so to

do.” Winslow v. Gifford, 60 Mass. (6 Cush) 327, 32930 (1850). This principle is applied to this day.

Klemic v. Dominion Transmission, Inc., 138 F. Supp.

24

3d 673 (W.D. Va. 2015) (Virginia statute authorizing

natural gas companies to enter land and survey it for

pipelines did not result in a taking).

D. The Airspace Servitude is a Modern

Modification of the Right to Exclude to

Serve Societal Needs.

The most striking modern alteration of the

right to exclude is the airspace servitude.

As

Blackstone wrote, until the twentieth century, land

had “an indefinite extent, upwards as well as

downwards. Cujus est solum, ejus est usque ad

coelum, is the maxim of the law.” 1 Blackstone,

supra, at 314. The invention of the airplane threw

that maxim into disarray. Lawyers asked whether

the common law could change with the times, what it

meant in the first place, and whether it really

mattered at all. See Stuart Banner, Who Owns the

Sky: The Struggle to Control Airspace from the

Wright Brothers On 69-93 (2008). States, property

owners, and the federal government wondered who

could regulate what passed above the land and how.

Meanwhile, European countries began to regulate

and encourage commercial aviation, building far

safer and more pleasant airflight than was available

in the United States. Civil Aeronautics: Legislative

History of the Air Commerce Act of 1926 Approved

May 20, 1926 Together with Miscellaneous Legal

Materials Relating to Civil Air Navigation 22 (1941).

Finally, Congress resolved the controversy in one fell

swoop, enacting the Air Commerce Act defining

‘“navigable airspace’” as “airspace above the

minimum safe altitudes of flight prescribed by the

Secretary of Commerce . . . and such navigable

airspace shall be subject to a public right of freedom

25

of interstate and foreign air navigation in conformity

with the requirements of this Act.” Air Commerce

Act of 1926, ch. 341, § 10, 44 Stat. 568, 574 (1926)

(codified as amended at 49 U.S.C. § 40102(32)).

This Court blessed this resolution in United

States v. Causby, 328 U.S. 256 (1946). In Causby,

the United States had leased an airport for military

use, and was flying planes so low and so frequently

that about 150 of the Causbys’ chickens had died

from “flying into the walls from fright,” resulting in

“the destruction of the use of the property as a

commercial chicken farm.” Id. at 259. The Causby

family could not sleep and was nervous and

frightened. Id. In reviewing the claim, this Court

declared that the “ancient doctrine that at common

law ownership of the land extended to the periphery

of the universe . . . has no place in the modern

world.” Id. at 260-61. The Court therefore held that

“[f]lights over private land are not a taking, unless

they are so low and so frequent as to be a direct and

immediate interference with the enjoyment and use

of the land.” Id. at 266. But because the damages to

Causby’s property “were the product of a direct

invasion of respondents’ domain . . . ‘so long as the

damage is substantial, that determines the question

whether it is a taking.’” Id. at 265-66 (quoting United

States v. Cress, 243 U.S. 316, 328 (1917)). The Court

thus treated the law of trespass as it always has

been in American law: modifiable to accommodate

changing public needs, but not to the point of causing

substantial damage to landowners’ rights.

26

III. LATER LIMITATIONS ON THE RIGHT TO

ENTER WERE OFTEN NOT TRIUMPHS OF

INDIVIDUAL RIGHTS.

Although advocates sometimes treat an

absolute right to exclude as a matter of individual

liberty, expansions of the right to exclude have often

undermined human freedom. In the England of

Blackstone’s time, enclosure by wealthy landowners

curtailed rights of commons and impoverished the

commoners. See David Thomas Konig, Law and

Society in Puritan Massachusetts: Essex County,

1629-1692, at 4 (1979) (noting that “the enclosure of

the common fields had dispossessed thousands and

produced a population of menacing ‘sturdy Beggars’

who streamed into London or wandered about the

countryside”). In the United States, states expanded

rights of businesses to refuse service so that they

could exclude African Americans. Most relevant in a

case about farmworker rights, several states

curtailed rights to hunt and graze on unfenced land

to give plantation owners more authority to control

the labor of newly freed African Americans.

The “We Refuse the Right to Serve Service to

Anyone” signs still posted by some businesses reflect

the erosion of the common law obligation to serve.

Many

jurisdictions

reduced

this

obligation

specifically so that businesses could exclude African

Americans. See Joseph William Singer, No Right to

Exclude: Public Accommodations and Private

Property, 90 Nw. U. L. Rev. 1283 (1996). The month

after Congress enacted the Civil Rights Act of 1875

requiring equal access without regard to race to inns,

public conveyances, theaters, and other places of

public amusement, ch. 114, 18 Stat. 335 (1875), the

27

Tennessee Legislature “abrogated” “[t]he rule of the

common law giving a right of action to any person

excluded from any hotel, or public means of

transportation, or place of amusement” and gave

owners a right to bring actions against customers

guilty of “turbulent” conduct. The Code of Tennessee:

Being a Compilation of the Statute Laws of the State

of Tennessee, of a General Nature, in Force June 1,

1884, at 399 (1884) (now codified at Tenn. Code §§

62-7-109, 62-7-110); see Kenneth M. Mack, Law,

Society, Identity, and the Making of the Jim Crow

South: Travel and Segregation of Tennessee

Railroads, 1875-1905, 24 L. & Soc. Inquiry 377, 384

(1999) (discussing timing).

The same year, a

Delaware statute stipulated that “[n]o keeper of an

inn, tavern, hotel, or restaurant, or other place of

public entertainment or refreshment of travelers . . .

shall be obliged,” to serve “persons whose reception

or entertainment . . . would be offensive to the major

part of his customers and would injure his business.”

15 Del. Laws 322 (1875) (now codified at Del. Code

Ann. tit. 24, § 1501). Other jurisdictions narrowed

the right to enter by judicial decisions. Courts in

Massachusetts and Iowa, for example, held for the

first time that the right of accommodation did not

apply to places of amusement in cases involving

Black

patrons.

Bowlin

v.

Lyon,

25 N.W. 766 (Iowa 1885); McCrea v. Marsh, 78 Mass.

(12 Gray) 211 (1858).

This Court’s decision in Brown v. Board of

Education, 347 U.S. 483 (1954), and sit-ins by civil

rights activists triggered a new wave of exclusion

statutes. In 1954, Louisiana repealed its 1869 act

that prohibited refusals to admit anyone in a public

28

inn, hotel, or public resort, and conditioned business

licenses on providing service regardless of race.

Harold J. Brouilette & Charles A. Reynard, IndexDigest of Acts of the 1954 Louisiana Legislature, 15

La. L. Rev. 103, 129 (1954). A 1956 Mississippi

statute authorized “any public business . . . of any

kind whatsoever . . . to refuse to sell to, wait upon or

serve any person that the owner, manager or

employee of such public place of business does not

desire to sell to, wait upon or serve,” authorizing a

fine or imprisonment for those that refused to leave.

1956 Miss. Laws 307-08 (now codified at Miss. Code

Ann.

§ 97-23-17). Arkansas enacted virtually the same

provision in 1959, repealing it only in 2005. See 2005

Ark. Acts 423 (repealing Ark. Code Ann. § 4-70-101).

Refusing service in public accommodations

because of race was, of course, prohibited by the Civil

Rights Act of 1964. 42 U.S.C. § 2000a. When a

motel owner challenged the measure as a taking of

his property (among other constitutional claims) this

Court dismissed the argument in just two sentences.

“Neither do we find any merit in the claim that the

Act is a taking of property without just

compensation. The cases are to the contrary.” Heart

of Atlanta Motel, Inc. v. United States, 379 U.S. 241,

261 (1964).

The contraction of public rights to hunt and

graze animals on unfenced private land has a

similarly sorry history. To some extent the closing of

the range reflects economic and technological

changes: over the course of the nineteenth century,

hunting, foraging, and grazing became less

important and fencing livestock in became cheaper

29

and more efficient than fencing them out. Freyfogle,

supra, at 44-45.

But other reasons are less

innocuous. A recent history shows that many states

closed the range as a measure of labor control.

Sawers, Property Law As Labor Control, supra. After

the Civil War, plantation owners were eager to

regain Black labor on terms favorable to them. Id. at

356. They complained that Black workers, able to

support themselves by hunting, grazing a few

livestock, and foraging in the open range, were

unwilling to work year-round for low wages. Id. at

357-58. What followed were multiple measures

reducing the right to enter and expanding the right

to exclude.

Between 1865 and 1866, Louisiana, Georgia,

South Carolina, North Carolina, and Alabama

enacted their first general statutes criminalizing

trespass on enclosed or unenclosed lands. Id. at 361.

In the years following the end of Reconstruction,

Texas, Mississippi, and Tennessee similarly forbade

hunting on unenclosed lands on which landowners

had posted signs denying permission. Id. at 362.

Four southern states criminalized hunting in

majority-Black counties, leaving hunting in majorityWhite counties untouched. Id. at 365.

The closing of the unfenced range to grazing

was slower, in part because lower-income Whites

dependent on the range fiercely resisted it. Id. at

368. But Alabama, South Carolina, Mississippi, and

Arkansas began closing the open range immediately

after the Civil War, starting with majority-Black

counties. Id. at 370-71. In Georgia, White and Black

voters successfully resisted initial attempts to close

the range; by 1889, however, Georgia had closed the

30

range throughout its Black Belt, leaving it open in

all but three majority-White counties. Id. at 373.

Several courts, moreover, have recognized that

with respect to farmworkers, an expansive right to

exclude is contrary to human freedom. The New

Jersey Supreme Court held in State v. Shack that

the common law of property includes “an

accommodation between the right of the owner and

the right of individuals who are parties with him in

consensual transactions relating to the use of the

property. . . . [W]e find it unthinkable that the

farmer-employer can assert a right to isolate the

migrant worker in any respect significant for the

worker’s

well-being.”

277 A.2d 369, 373-74 (N.J. 1971).

Property

ownership, therefore, gave employers no right to

deny reasonable entrance by visitors or organizations

seeking to support farmworkers. See Folgueras v.

Hassle, 331 F. Supp. 615, 623 (W.D. Mich. 1971) (“As

a matter of property law, the ownership of a labor

camp does not entail the right to cut off the

fundamental rights of those who live in the camp.”);

State v. DeCoster, 653 A.2d 891, 893-94 (Me. 1995)

(migrant workers entitled to receive visitors in their

residences); see also In re Catalano, 623 P.2d 228

(Cal. 1981) (union representative did not violate

trespass law by refusing to leave construction site).

The right to exclude is certainly not always—

or even primarily—invidious. But an expansive

right to exclude is not always liberatory. Indeed,

sometimes it is anything but.

31

CONCLUSION

Limited rights to enter are part of the

American tradition of property. The opinion below

should be affirmed.

Respectfully submitted,

KATHARINE M. MAPES *

GWENDOLYN A. HICKS

*Counsel of Record

Spiegel & McDiarmid LLP

1875 Eye Street, NW

Washington, DC 20006

(202) 879-4000

Katharine.Mapes@spiegelmcd.

com

BETHANY R. BERGER

University of Connecticut

School of Law

65 Elizabeth Street

Hartford, CT 06105

Bethany.Berger@uconn.edu

APPENDIX

A-1

LIST OF AMICI CURIAE *

Gregory Ablavksy is an Associate Professor of

Law and Helen L. Crocker Faculty Scholar at

Stanford Law School.

Bethany R. Berger is the Wallace Steven

Professor of Law at the University of Connecticut

School of Law.

Eric T. Freyfogle is a Research Professor and

the Swanlund Chair Emeritus at the University of

Illinois College of Law.

Herbert Hovenkamp is the James G. Dinan

University Professor at the University of

Pennsylvania Carey Law School.

Kenneth W. Mack is the Lawrence D. Biele

Professor of Law at Harvard Law School.

K-Sue Park is an Associate Professor of Law

at Georgetown Law School.

Anna di Robilant is the Associate Dean for

Equity, Justice and Engagement and a Professor of

Law at Boston University School of Law.

Carol M. Rose is the Gordon Bradford Tweedy

Professor Emeritus of Law and Organization at Yale

Law School, and the Lohse Chair in Water and

Natural Resources and Professor Emerita of Law at

the University of Arizona James E. Rogers College of

Law.

Amici appear in their individual capacities; institutional

affiliations are listed here for identification purposes only.

*

A-2

Joseph William Singer is the Bussey Professor

of Law at Harvard Law School.

Steven Wilf is the Anthony J. Smits Professor

of Global Commerce at the University of Connecticut

School of Law.