“Many local residents,” remarked a newspaper in 2019, “now see these new owners as a threat to a way of life beloved for its easy access to the outdoors, and complain that property they once saw as public is being taken away from them.” And there have been street demonstrations, hundreds of people outside the Idaho government buildings in Boise—large crowds by Idaho standards—demanding that access to their forests and rivers not be interrupted.

  The Wilks brothers began their own lives modestly, in the dry cattle countryside of Cisco, Texas, a hundred miles west of Fort Worth. Their father was a bricklayer, then ran a successful masonry firm. Once his sons reached their majority, they had a stroke of luck: they managed to get in on the ground floor of the fracking industry, setting up a company selling equipment that is used to pump chemically infused water at high pressure deep into oil-bearing shales, breaking up the rocks and allowing the gas and oil they contain to escape.

  Forest roads like this, in Placerville, Idaho, were long used freely by walkers, snowmobilers, and the like—until the publicity-shy Wilks brothers, fracking billionaires from Texas, bought the lands and closed off all access.

  The business in which they played a critical part from its very beginnings is environmentally disastrous, but in the United States wildly popular—and similarly so in those countries that allow extractive industries like coal mining, oil drilling, and fracking to do more or less as they please. And under a succession of Republican presidents, governors, and Texas county bosses, so the Wilkses’ company, Frac Tech, made them millions, and very quickly. In 2011 they sold their young firm to a group of investors, led by the Singapore sovereign wealth fund, for $3.5 billion, of which they each kept $1.4 billion. They now had unimaginable wealth almost overnight, and after little enough thought they opted to spend as much of it as they could on buying grand parcels of western lands.

  It has not been an unalloyed success. Battles between private landowners and custodians of the public lands are nothing new in the American west, for sure—nor is rivalry between adjacent private owners either, as any student of American cinema will know all too well. But nowadays, with an increasing number of extraordinarily wealthy individuals buying up expanses of hitherto quasi-common countryside and—an echo of eighteenth-century England—enclosing them with fences, locals see the closing off of a cherished part of rural life. Men and women who have camped, skied, hunted, walked, climbed, and canoed in some of the loveliest and most pristine corners of the American outdoors now find barriers, guards, attack dogs, unfriendly signs—and within, they see private jets, hotels, airstrips and all the myriad appurtenances of extreme wealth, spy cameras meeting up with solitude, and neither much caring for the other.

  And so the Wilks brothers have become symbolic scapegoats, villains in the growing confrontation between—as a columnist for a Boise newspaper had it—“Two American dreams.” On the one hand all agree that there is an absolute right of private ownership; yet most surely also accept that there is a spiritual poetry to quiet pastoral beauty, and efforts to preserve such landscapes that offer such escape provide an incalculable benefit of the American public soul.

  It does not help, does not mollify local sentiment, that the Wilks brothers say that in buying land and keeping it for themselves or selling it on to developers, they are merely doing God’s will. They are intensely, and some might say eccentrically, religious. Their parents, Voy and Myrtle, reportedly suffered the unusual punishment of being “disfellowshipped” from their initial spiritual brotherhood, the theologically ultraconservative Church of Christ, apparently because they were eager to cleave to an even stricter doctrine, even more rigid dogma. The sons then went one step further than their parents, establishing their own church, that of the Assembly of Yahweh (7th Day), which has a bewildering set of rules—it adheres to traditional Jewish rites, its adherents keep kosher, follow the literal interpretation of the Old Testament, have Saturday as their Sabbath, do not mark Christmas, Easter, or Good Friday, and so far as public morality is concerned, regard abortion in all circumstances as nothing less than murder and homosexuality as a grievous crime, a “base and demented” practice that could see “the end of our nation” and the “breaking of Yahweh’s covenant,” as the Wilks have said in their sermons from the Assembly pulpit.

  More concerning, so far as their ownership of land is concerned, is the brothers’ utter disdain for matters to do with environmentalism and with the fiction, as they see it, that is climate change. “We didn’t create the earth, so how can we save it?” is Farris Wilks’s oft-repeated refrain. “When you realize that Yahweh is in control it’s much simpler—you can turn over some of those responsibilities to him. And if the polar ice is getting a little scorched, well, maybe that is just a message from God.” Pedophilia and bestiality, the brothers believe, are soon likely to become legal in America. The nation is fast heading for the scripturally predicted end times, an armageddon, a rapture, brought about by humankind’s eternally sinful and nonbelieving practices. They believe Donald Trump the best leader to push back against such evils, the man most prepared and determined to repair the damage already done; they have given millions to support him and those causes that are dear to his heart.

  These are the people who currently own 705,000 of America’s acres. In the name of their god, they have since put up their fences, have closed access to roads still considered by the state as belonging to the public at large, have turfed loggers off their lands, have forbidden snowmobiling, skiing, and snowshoeing. To ensure compliance they hired a lobbyist in Idaho with a view to changing the law on trespass, for “our Heavenly Father has blessed us with lots of gifts, and our family’s priority is to protect them.” And under the relentless pressure of these extremely wealthy men, a raft of enhanced antitrespassing measures has indeed now become settled Idaho law.

  3

  Going Nowhere and Everywhere

  Cuius est solum, eius est usque ad coelum et ad inferos.*

  Whoever owns the land owns it all the way to the heavens and to hell.

  —ATTRIBUTED TO FRANCISCUS ACCURSIUS, ITALIAN JURIST (13TH CENTURY)

  Central to the concept of owning land is the right to tell others to get off it. One who acquires land gets to enjoy the legally famed Bundle of Rights: the right of possession, the right of control, the right of enjoyment, the right of disposition—and, most relevant here, the right of exclusion. A landowner may exclude others, may forbid others to stray onto his property, and has a right in law to demand that enforcement officers compel the person who does so—who trespasses—to leave.

  That is the theory, a legal notion that is as old as the hills, almost literally. But in practice there is a vastly wide spectrum of attitudes toward such misbehavior. In all American states, for example, trespass is seen as a serious violation of personal space, and the trespasser’s failure to leave when asked or told to is an offense. Elsewhere, at the polar opposite end of the spectrum, there are countries where it is entirely legal—subject to certain eminently reasonable restrictions—for anyone to be on privately owned land, whether invited or not, and it is an offense, albeit a minor one, to order them to go away.

  Trespass—the word is French in origin, and signifies in its general, extralegal sense a transgression, and in a more general courtroom sense a passage across the boundary of law—is distinguished by three very specific legal senses, which are recognized terms: trespass to person (assault being one), trespass to property (damaging someone’s possession an example), and the one that most concerns us here, trespass to land, which has been a legal concept under that specific name since the fifteenth century. It is a tort, insofar as it is a breach of the landowner’s right to keep people off his land, and so it is a civil offense—it becomes a criminal offense only if damage is done, or if the trespasser decides to carry a gun, or if the trespass is onto publicly owned or prohibited property—an airfield, a military base, a railway, a nuclear power station.

  It is a law most robustly enforced, among the ostensibly democratic countries at least, in the United States—and in some particular states, Florida, Louisiana, and Texas, most demonstrably so. It is from states like these that one hears lurid tales of landowners opening fire on uninvited sojourners, even though the law specifically forbids the shooting of a trespasser, unless he is brandishing a weapon and threatening the life of the owner. Warning signs declaring “Trespassers Will Be Shot” are to be seen on all sides in American states like these, and though the signs are permissible as a deterrent, they are not to be regarded as a warning of any impending fusillade.

  Where I live in Massachusetts, there is a great deal of seasonal hunting—for deer, mainly, though black bear on occasion, and with a variety of weapons, including crossbows, black-powder muskets, and rifles, each of which is assigned a specific week in every autumn. Signs at the town limits note that hunters must have, and must carry at all times, written permission from the landowner to pursue their bloodthirsty calling; and during the affected weeks nonhunters are advised to stay indoors and to suit up one’s larger pets in reflective orange coats, so that they are not mistaken for deer. In addition, though, the owner must festoon his land’s perimeter with orange signs, stapled to a tree every hundred feet or so, with a wordy insistence under the warning word “POSTED,” that there be “No Trespassing,” followed by a list of specific activities—hunting most obviously—that shall not be pursued.

  It seems to most owners that state law tends to favor the hunter: anyone who fails to post his signs the proper distance apart may discover, if the supposed violator has a canny lawyer, that his accusation of trespass is made quite invalid on a technicality. Moreover, if the trespasser injures himself on your property—if he trips and breaks his leg, say—he may have the right to sue the property owner under the principle of attractive endangerment, which seems to someone unaware of America’s often byzantine land-related statutes to have turned the law entirely on its head.

  In Texas, studded as it is with ranches, especially in the western ranges, regulations for the landowner who is concerned with trespassers are strict, detailed, and much enforced. For instance, under Title 7, Chapter 30, of the state’s penal code, which defines criminal trespass as “a person entering or remaining on or in property without effective consent,” there are special rules for how such a warning might be presented in unfenced properties, which dominate the state’s westernmost counties. The caution can be written on

  a sign or signs posted on the property or at the entrance to the building, reasonably likely to come to the attention of intruders, indicating that entry is forbidden;

  the placement of identifying purple paint marks on trees or posts on the property, provided that the marks are:

  vertical lines of not less than eight inches in length and not less than one inch in width;

  placed so that the bottom of the mark is not less than three feet from the ground or more than five feet from the ground; and

  placed at locations that are readily visible to any person approaching the property and no more than:

  100 feet apart on forest land; or

  1,000 feet apart on land other than forest land

  In Massachusetts matters tend to the less formal. It is a commonplace that ancient boundary trees have often grown so much since signs were placed on them by former owners that they have since folded themselves around the old metal plaques that once read NO TRESPASSING but which now have been wizened and their lettering conflated to read NOG or NOSING—which a good lawyer would probably argue renders the boundary invalid, letting any poacher off scot-free.

  Warning signs themselves do not keep people off another’s land. The American invention that is most traditionally placed to deter intruders from trespassing—and one which has spread worldwide since its invention in the mid-nineteenth century—is barbed wire, the devil’s rope.

  The idea behind an invention that has at least half a dozen claimants to being its originator is timelessly simple: “two wires, twisted together, with a short transverse wire, coiled or bent at its central portion about one of the wire strands of the twist, with its free ends projecting in opposite directions, the other wire strand serving to bind the spur-wire firmly to its place, and in position, with its spur ends perpendicular to the direction of the fence-wire, lateral movement, as well as vibration, being prevented.”

  The man who, with this elegantly incomprehensible description, lays the principal credible claim to the first patent for it in late 1874* was the son of English immigrants to the United States and named Joseph Glidden. His early demonstration of the usefulness of his creation had one unanticipated consequence: it helped in no small measure to bring about a signal change to the American diet, almost overnight.

  Joseph Glidden’s 1874 patent for a sharp-pointed wire confection was designed to keep animals penned in; but as “the devil’s rope,” barbed wire has since served around the world, mainly to keep strangers out.

  The change derives from the simple fact that the first purpose of the wire was to keep animals in, not to keep people out. And to display how easy this was, Glidden built himself an enormous ranch on the near grassless plains of the west Texas panhandle and housed there the near unimaginable number of 20,000 head of cattle. He was able to corral these animals in such numbers and at such relatively low cost by ringing the entire ranch with his newly made wire—some 120 miles of it, at a cost of some $39,000, far less than a conventional wooden fence, and far less cumbersome.

  Having so many cattle pinioned in one place, conveniently close to a railway line that led ultimately to the stockyards in Chicago, played into the great “beef bonanza” that was just then gripping the nation. Beef became all of a sudden both cheap and available, with the result that almost overnight it would replace pork as the preferred national dinnertime dish. Corralling cattle in such numbers became, from the producers’ standpoint, economically most advantageous—leading to the invention of that current abomination of the midwestern agricultural scene, the feedlot. Given the known cardiac health disbenefits of today’s massive beef consumption—leaving to the side the effects of so unnecessarily large a cattle population on climate change—one might fairly say that Glidden’s invention of barbed wire led, in time, to the currently high American incidence of heart attack.

  Once Glidden’s famous patent, number 157124, had been approved, and with the appeal of his well-publicized panhandle demonstration, so it seemed that every farmer west of the Mississippi was determined to string this newfangled barbed wire along his property lines. The railroads followed suit: not wanting to have livestock, or more especially heavy and locomotive-disrupting bison, wandering dangerously onto their tracks, they also purchased thousands of tons of the wire to spool out alongside their rights-of-way.

  After that, for the barbed-wire industry, it was off to the races—with the result that the devil’s rope, which over the decades would come in many weights and strengths, with many different designs of barb, leading to today’s viciously displeasing sibling razor wire, became the world’s default barrier to unwanted movement. It kept prisoners in; it kept rabbits (in Australia) out. It helped keep North Koreans from venturing southward, or Pakistanis from attempting sojourns eastward. Coils of it kept Great War soldiers safe in their trenches. And all types of it are on display in museums and at conventions of the various state wire collectors’ associations—most notably in California, Kansas, Colorado, and Nebraska—where it is seen as powerfully emblematic of American pioneering and expansion—also being a vivid and potentially painful reminder that to trespass is a most foolhardy endeavor. Especially in America.

  But not, it turns out, in Scotland.

  For in Scotland there is today essentially no such thing as trespass. One now has an absolute statutory right to wander anywhere in the country at any time of night or day, no matter who the land belongs to, and no matter if the landowner objects to your presence on his acres. Your right of access generally trumps his right to privacy—a revolutionary development that was first undertaken in 2003, and now has the whole world enthralled. Despite furious objection and bluster from some of those who are in possession of many of the Scottish acres, the new arrangement appears in first years of existence to have done very little harm and achieved a great deal of public good.

  The right to roam harmlessly across a landscape, to take exercise or simply to recreate the soul, was for centuries an inalienable part of human existence. Common sense and common decency would and should suggest that this right is so basic as to defy any need for explanation. There is, for now, no suggestion anywhere that the general public should have limits imposed on right to breathe the air, nor that one might be forbidden to bathe in the sea. Both belong to all. Land, air, and ocean were once all components of the human birthright—and yet in recent years the public nature of land, uniquely, has been greatly reduced, and common human rights of use of it have been massively attenuated, simply through the introduction of private ownership—and helped by such hostile inventions as barbed wire, warning signs, mantraps, bailiffs, and shotguns.

  Pockets of kindly civility remain, though. In Scandinavia most particularly, this ancient right of land wandering—allemansrätten is the Swedish word for it, “the everyman’s right”—survives and is cherished; and, Nordic peoples being generally much gifted with common sense, it is a right that does not require legislation. The legal principle is simply that of nulla poena sine lege—that which is not illegal cannot be punished. The thought of erecting a “No Trespassing” sign is seen in Finland as vulgar, impolite, and quite unnecessary.

  There is some regulation, naturally, and some of the rules are intriguing. An outsider may not pick cloudberries in Lapland, for example, because that is something that Lapps do. In Finland, please do not disturb reindeer, steal lichen, or make too much noise when camping close to someone’s house. You may however take your horse for a swim in a private lake and you don’t have to ask permission. In Norway you may cross cultivated land, but only when it is covered with snow. Anyone who puts up a fence trying to restrict access to a beach there will incur heavy fines. Children under the age of sixteen may fish at will wherever they like, but adults wanting to fish in private waters have to both obtain a license and get permission from the owner. In Sweden you have an absolute right of access to all land, subject only to the restrictive covenant of “do not disturb, do not destroy.” Access to Swedish beaches has a handful of restrictions—you do not have an absolute right to walk through what is called the hemfridzon, the “immediate vicinity,” of a seaside house (though few owners ever get angry if you do), but to give additional benefits to beach strollers, the Swedish authorities try to discourage people from building new houses within a hundred meters of any beach, thus not ever creating a hemfridzon that one is supposed to avoid.