With summer weather upon us, beach and shoreline access is a timely topic.
For beachfront or oceanfront (littoral) landowners, keeping trespassers off of their private property is often a primary concern. For beachgoers, access to the beach and ocean is the ultimate goal. With these two (often competing) interests in mind, here are a few points to consider.
Assuming that we’re talking about private beachfront/oceanfront property (rather than a public, state- or municipality-owned beach), what rights does the public have in the adjacent tidal areas?
For all “privately owned tidal areas in Massachusetts, the locus [land] lying between the mean high and low water marks is and has always been subject to the Public Trust Doctrine. Under that doctrine, the tidal flats are ‘subject to a reserved easement’ in the public as a matter of law, [citation omitted] whereby all members of the public retain the right to go upon the flats for purposes of fishing, fowling and navigation.” Sheftel v. Lebel, 44 Mass. App. Ct. 175, 182 (1998) (citations omitted). But see Arno v. Commonwealth, 457 Mass. 434, 456-57 (2010) (dicta discussing whether these are truly “easement” rights). Notably, this limited list of authorized activities does not include sunbathing on a blanket, picnics, building sand castles or the like. For more information about the kinds of authorized and prohibited activities under the Public Trust Doctrine, click here.
Incidentally, M.G.L. c. 91 (Massachusetts Public Waterfront Act) largely codifies the principles of the Public Trust Doctrine. The MassDEP Waterways Regulation Program oversees M.G.L. c. 91, and is primarily responsible for implementing the Public Trust Doctrine. According to the MassDEP website, M.G.L. c. 91 “regulates activities on both coastal and inland waterways, including construction, dredging and filling in tidelands, great ponds and certain rivers and streams. Through Chapter 91, the Commonwealth seeks to preserve and protect the rights of the public, and to guarantee that private uses of tidelands and waterways serve a proper public purpose.” Visit the MassDEP website or the Massachusetts Office of Coastal Zone Management website for additional information about M.G.L. c. 91.
What if the littoral land is registered land?
Land registration (M.G.L. c. 185), on its own, does not affect or divest the public of the rights protected under the Public Trust Doctrine-only legislative action, or an express delegation to another entity to do so, can alter those rights. See Arno v. Commonwealth, 457 Mass. 434, 451-52 (2010).
Is the littoral landowner barred from developing in these areas?
A littoral landowner is not necessarily prevented from erecting structures like piers or otherwise developing the private tidal land “‘so as to exclude the public completely as long as he does not unreasonably interfere with navigation.'” Arno, 457 Mass. at 449. Landowners should proceed with caution and determine what permits and licenses may be required. Only the Legislature can authorize interference with the public’s right of passage during high tide, which it does by requiring private landowners to apply for waterways licenses under M.G.L. c. 91. Id. Depending on the nature of the structure to be built along the waterway, other permissions from Army Corp. of Engineers and the local conservation commission may also be required. Landowners should also understand that the Commonwealth owns the submerged land seaward of the low water mark and take care to abide by all relevant laws and regulations. Thus, the installation of docks and floats beyond low tide is also subject to regulation under M.G.L. c. 91.
How can the public reach the area between high and low water to exercise their rights under the Public Trust Doctrine?
The public has “no right of perpendicular access across private upland property, i.e. no right to cross, without permission, the dry land of another for the purpose of gaining access to the water or the flats in order to exercise public trust rights; doing so constitutes a trespass.” Sheftel, 44 Mass. App. Ct. at 183. This means that the public can lawfully access the tidal flats only in a limited number of ways. Ideally, there will be some sort of public access way to the tidal flats. However, in the absence of such public access, then an individual must either secure the permission (i.e. an oral license) of the private landowner or have rights of access by deed or by easement (i.e. express, implied or prescriptive easement.
In cases determining whether a prescriptive easement for access to the tidal flats exists, the courts have largely focused on whether such access had been permissive vs. non-permissive over the requisite twenty year period, as well as the type and frequency of use undertaken by the person(s) claiming those rights.
Persons accessing tidal areas with permission from the rightful owner (via license) should understand that those rights can be revoked at any time if the landowner chooses to do so. Moreover, licenses do not automatically pass to any subsequent successors in interest, either on the grantee’s or grantor’s side.
What about the right to use the sandy portion of the beach above the high water mark?
Anyone using these portions of the beach without a lawful right to do so are subject to a claim of trespass by the rightful owner. Unless an individual has deeded access, existing easement rights or the permission of the private littoral landowner, then there is no right to use these portions of private oceanfront or beachfront land. Often these rights must first be adjudicated in court.
In sum, landowners and potential beachgoers should proceed with caution when it comes to access of beach and tidal areas. In many cases there is a legitimate right for members of the public to be there, while in equally as many cases there is grounds for a claim of trespass.
Written by Kristen M. Ploetz, Esq., of Green Lodestar Communications & Consulting, LLC, on behalf of Jeffrey T. Angley, P.C. Edited by Jeffrey T. Angley, Esq.
Copyright (c) 2011-2012 by Jeffrey T. Angley, P.C. All rights reserved.
Disclaimer: The information contained in this post is general in nature and for educational purposes only. No personal legal advice is being provided. If you have an actual legal issue that needs to be addressed, you should seek the advice of competent legal counsel. This post does not create an attorney-client relationship between the reader and Jeffrey T. Angley, P.C., Phillips & Angley or their attorneys.