In From Cowboys to Corner Crossers: Reviving the Unlawful Inclosures Act to Protect Public Land Access, Brittany Kjerstad McKnight and Ryan McKnight (both Management and Economics, South Dakota State University) argue that corner crossing property—stepping from one parcel of public land to another at a shared corner with private property—is lawful and should be broadly recognized as such under existing property law principles.
The authors argue that conflicts over access to public lands adjacent to private lands have long been a source of tension in American property law. Following a series of violent interactions in Texas, Congress sought to prevent private landowners from restricting access to public lands by passing the Unlawful Inclosures Act of 1885 (UIA). The act prohibits landowners from restricting access to public lands without a legal claim. The authors explore how these legal principles have developed through case law and examine how the UIA was intended to broadly protect access to public lands while still allowing for private landownership within the settled understanding of property law.
In the nineteenth century, railroad expansion led to a checkerboard pattern of public and private lands. This checkerboard pattern has effectively “landlocked” millions of acres of public land. Landowners use both physical barriers like fences and intimidation like trespassing claims to prevent the public from corner crossing to access landlocked public lands. The authors note while state laws may recognize corner crossings as trespass, they argue claiming private property ownership extends in a vertical plane above the corners of adjacent properties is an outdated legal concept now being used to exclude “for exclusion’s sake.”
These legal principles came to a head recently in Iron Bar Holdings, LLC v. Cape, when the Tenth Circuit clarified how corner crossings fit into the broader property law scheme and are protected by the UIA. The Tenth Circuit refused to bar corner crossings as trespass, citing the UIA. The authors note, however, that the scope of its decision is narrow because it only applies within the Tenth Circuit and to federal lands governed by federal law. They argue that the legal principles underlying the decision can, and should, be applied more broadly to ensure public access to public lands.
