McKee v. Gratz
1922 U.S. LEXIS 2349, 260 U.S. 127, 43 S. Ct. 16 (1922)
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Rule of Law:
On large expanses of unenclosed and uncultivated private land, a license to enter for purposes such as wandering, shooting, and fishing may be implied from the common understanding and habits of the country, and entry pursuant to such a license is not a trespass.
Facts:
- The respondent's assignor owned a large tract of unenclosed and uncultivated land in Missouri containing a stream or pools.
- Petitioners entered this land without explicit permission.
- From the stream bed on the property, petitioners took live mussels in a considerable and systematic operation.
- The petitioners boiled the mussels on the banks of the stream to remove the shells.
- The removed shells were piled on the bank to await transportation for the petitioners' business of manufacturing them into buttons.
- A local custom existed in the region of people wandering, shooting, and fishing at will on large, unenclosed tracts of land until prohibited by the owner.
Procedural Posture:
- The respondent (plaintiff) sued the petitioners (defendants) in a Missouri state court for conversion of mussel shells.
- The case was removed to the U.S. District Court.
- At trial, the District Court directed a verdict for the petitioners.
- The respondent appealed to the U.S. Circuit Court of Appeals, which initially affirmed the District Court's judgment.
- The Circuit Court of Appeals granted a rehearing, reversed its prior decision in part, held that the petitioners could be found to be trespassers, and remanded the case for a new trial.
- The petitioners appealed the Circuit Court of Appeals' decision to the U.S. Supreme Court.
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Issue:
Is a person who enters unenclosed, uncultivated private land and removes mussels a trespasser as a matter of law, where local custom may imply a license to enter such land for recreational purposes?
Opinions:
Majority - Mr. Justice Holmes
No, a person entering unenclosed, uncultivated land is not a trespasser as a matter of law because a license to enter may be implied from local custom. While the landowner had a possessory interest in the mussels due to their fixed habitat, the question of trespass hinges on whether the petitioners' entry was permissible. The strict English common law of trespass is mitigated in the United States by the common understanding regarding large, open lands. A license to enter may be implied from the 'habits of the country,' a practice fortified in Missouri by statutes limiting prohibitions to enclosed lands. Therefore, whether the petitioners were entitled to rely on this implied license and whether their systematic, commercial harvesting of mussels exceeded the scope of such a license are questions of fact for a jury, not matters of law for a court to decide.
Analysis:
This decision establishes the 'implied license' or 'customary use' doctrine for unenclosed, uncultivated lands in American property law, representing a significant departure from the strict English common law of trespass. It transforms the question of trespass on such lands from a strict rule of law into a question of fact dependent on local customs and the scope of the defendant's activities. The case creates a rebuttable presumption of permission for recreational users on 'wild' lands, placing the burden on landowners to prohibit entry if they wish to enforce their right to exclude. This precedent has a lasting impact on public access rights for recreational activities on private, undeveloped property.
