In the just-decided Maslow v. O’Connor, the Appeals Court addressed rights in a Gloucester subdivision road. Since Gloucester is a seaside community, naturally the case concerns water access.
Along with the Red Sox and Patriots’ Day, one of the unique features of Massachusetts is that modern property rights can be ruled by 370-year-old statutes. The Colonial Ordinance of 1641-1647 declared that owners of land adjoining the shore also own the tidal flats – the land between the high and low water marks (out …
Beware Spillane v. Adams
Real estate lawyers, surveyors, and owners of oceanfront property should be familiar with an Appeals Court decision that got little attention when it came down earlier this year. Spillane v. Adams (pdf) makes two dramatic changes in longstanding principles of real estate law. The first concerns how the location of the low water mark, which divides private ownership from state ownership, is determined. The second involves the standard of proof a private landowner must meet when the town in which his land is located claims ownership of that land. Because both issues are important and require some space to explain, I’ll cover the first one here and the second one in a later post. [Disclosure: I represented the unsuccessful appellant-owners in Spillane.]
The Law from 1641 to 2010
Ever since the Colonial Ordinance of 1641-1647, private ownership of oceanfront land in Massachusetts has extended to the low water mark. The purpose of this rule was to encourage owners to build wharves and make other productive use of their land by ensuring their access to the water. And ever since that time — until Spillane, that is — the corresponding rule was that the location of the low water mark must be based on the actual location of low tide on the parcel in question. In Rockwood v. Snow Inn Corp. (pdf), the Supreme Judicial Court (SJC) reaffirmed two long-used methods for determining the location of the low water mark — the location of the lowest tide under “usual causes and conditions,” and the “mean (average) low water mark” — while eliminating a third, discredited method (extreme low water). Which of the remaining two methods was appropriate for a given parcel was left to be determined on a case-by-case basis. [Fun fact: the plaintiff in Rockwood was represented by my former Rackemann colleague Steve Voltz, who has gone on to even greater fame as a Diet Coke and Mentos scientist/performer. He’s the tall bald guy on the left.]
The New Regime
Without saying so, the Appeals Court in Spillane overruled Rockwood and some 350 years of prior caselaw by adopting a new method of determining the location of the low water mark — a method that ignores the actual conditions on the parcel in question, and the actual location of low tide on that parcel. This method uses data obtained from regional survey stations maintained by the federal government, which data is tied to a standard known as the National Geodetic Vertical Datum (NGVD). From this NGVD data, a mean low water elevation is extrapolated and then applied to all oceanfront property in that region. This elevation is adjusted once every 17 years.