Collectively Homesteaded Easements and the Enclosure Movement

by Stephan Kinsella on August 28, 2026

Just as some critics of today’s version of “capitalism” equate it with what we libertarians or advocates of “true capitalism” would call crony capitalism—or, as Gene Epstein calls it, “crapitalism” ¹ —some also criticize private property rights as a type of “theft” ² because of “capitalist” versions of “private property rights” such as those stemming from the English Enclosure movement.

Yet as Hoppe has pointed out, there can be “partial” homesteading of land—homesteading of easements or rights-of-way, by usage—and this can be done by individuals or by groups who have been using the land—a path or street—and anyone who seeks to privatize the remainder of the land takes it subject to the pre-existing group-owned easement. After all, the key act that constitutes original appropriation is occupation (occupātiō) or use ³—using, possessing, employing a previously unused and unowned resource, according to its nature, ⁴ to serve as a causally efficacious means of action. Writes Hoppe:

How is it possible that formerly unowned common streets can be privatized without thereby generating conflict with others? Th e short answer is that this can be done provided only that the appropriation of the street does not infringe on the previously established rights—the easements—of private-property owners to use such streets “for free.” Everyone must remain free to walk the street from house to house, through the woods, and onto the lake, just as before. Everyone retains a right-of-way, and hence no one can claim to be made worse off by the privatization of the street. Positively, in order to objectify—and validate—his claim that the formerly common street is now a private one and that he (and no one else) is its owner, the appropriator (whoever it may be) must perform some visible maintenance and repair work on and along the street. Then, as its owner, he—and no one else—can further develop and improve the streets as he sees fit. He sets the rules and regulations concerning the use of his street so as to avoid all street conflicts. He can build a hot dog or a bratwurst stand on his road, for instance, and exclude others from doing the same; or he can prohibit loitering on his street and collect a fee for the removal of garbage. Vis-à-vis foreigners or strangers, the street owner can determine the rules of entry regarding uninvited strangers. Last but not least, as its private owner he can sell the street to someone else (with all previously established rights-of-way remaining intact). ⁵

In other words, only unowned land or resources may be homesteaded; a resource that is only partially homesteaded may be appropriated in the normal manner but just as an owner can only transfer title to the extent he owns a resource so a not-completely-homesteaded resource can only be homesteaded to the extent not already subject to a pre-existing easement which is, after all, a property right.