[Tagging] Who has the last word over the access tag?

Kevin Kenny kevin.b.kenny at gmail.com
Mon Apr 26 05:45:37 UTC 2021


On Sun, Apr 25, 2021 at 7:53 AM Frederik Ramm <frederik at remote.org> wrote:

> this is a fable built on a real-world case. Please don't guess what the
> real-world case behind this is; it doesn't matter. Do me a favour and
> discuss the fable.
>

I don't do fables very well, so let me go with one example from my own
experience.

There is a carriage road in the Catskills - where is not important right
now - that was the first access to a particular remote valley.  It was
later replaced with a modern highway.

The old road never saw an automobile, and was never upgraded for automobile
traffic. It was possible to force passage in a Jeep, and fire observers
staffing a tower did so until 1980 or so, when the fire tower was
decommissioned and razed.

In the latter part of the 19th century, some robber barons decided to
establish an exclusive hunting club with extensive facilities in the
valley, and bought the land on both sides of the old road. At some point,
they raised a court case claiming that the road was abandoned - after all,
it was impossible to drive a car on it. They lost the case; the road
provides access to a wilderness area for fire fighting, rescue and
research. It remains a public right-of-way under the law.

Nevertheless, the club has continued to post NO TRESPASSING signs where the
road crosses its land, and to gate the road. Local hiking clubs encourage
hikers to disregard the signs and pass the gates 'openly and notoriously'
(a term in Anglo-American law).  Most club members and many of the local
police are aware of the situation, and allow hikers to pass unmolested, but
every two or three years, there's an incident where a hiker will be
confronted by a club member who is not familiar with the situation, and
have the bad luck of having that club member summon a cop who's also
unfamiliar with it, so there have been incidents where a hiker has spent a
night in jail before the situation could get sorted out - whereupon all
charges were dismissed because the hiker was in the right.

What's 'observable on the ground' is the NO TRESPASSING signs.  According
to the law in the courtroom, they lie. But to disregard them risks at least
a MAJOR inconvenience!


In a similar case in a different forest, a land purchaser decided to ignore
a deeded easement for a hiking trail that predated the purchase of the
property, and posted the trail unlawfully. After an incident where hikers
were fired upon, the club that maintained the trail decided to reroute it
for safety. No charges were ever laid against the landowner, since the
hikers could not identify who fired the shots. Twenty years later, the
trail remains closed, cutting off all access to a lean-to and to a fine
view.


Since the whole concept of 'private property' depends on respect for and
enforcement of the law, I'd submit that in all these cases, and probably in
your fable, the observable situation on the ground is 'might makes right.'
If accessing a property will get you fired on, it is private whether the
wielder of the gun is a policeman or a criminal. If a government's monopoly
on violence has been broken, then the property belongs to whoever is
defending it.



-- 
73 de ke9tv/2, Kevin
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