No Trespassing in the Land of the Free: Rethinking Land Access in Kentucky

Note By: Madelyn Shelton

In this Note, Madelyn Shelton examines the legal and constitutional tension between private property rights and public land access in Kentucky. Shelton details how the American common law tradition historically prioritizes the right to exclude, heavily restricting public recreational access across private landscapes. She analyzes key Supreme Court precedents such as Kaiser Aetna and Cedar Point Nursery, which firmly established the right to exclude as a constitutionally protected core of property ownership. She contrasts state approaches, comparing Wyoming’s hyper-exclusionary criminal trespass policies with Maine’s implied permission framework that permits public access on undeveloped land. She evaluates Kentucky’s legal framework, noting that with ninety-five percent of state land held privately, strict exclusion severely limits outdoor recreation and underutilizes the Commonwealth's signature equine tourism economy. Ultimately, she advocates that Kentucky adopt a limited right to roam on undeveloped land to help solve the severe restriction of public recreational access in private-property-dominated states.