GIO pierMost coastal states own the land seaward of the high water mark, which includes the so-called “tidal flats” between the low and high water marks.  In Massachusetts, however, the tidal flats are private, but subject to the public’s right to fish, fowl, and navigate, which has generally been characterized as an easement for these purposes.  The “submerged land” seaward of the low water mark is owned by the Commonwealth.  Much of this land has been granted or licensed to private individuals or companies, a centuries-old practice intended to promote commerce.  When used by a private company, these submerged lands have been characterized as subject to a condition subsequent that they be used for a public purpose.  These principles, which have evolved from the public trust doctrine, are codified in M.G.L. c. 91, sometimes called the “Waterways Act.”

The public’s rights in coastal land are at issue in the Supreme Judicial Court’s recent decision in Arno v. Commonwealth (pdf).  Arno’s land bordered Nantucket Harbor and included filled tidal flats and submerged lands — referred to collectively as “tidelands.”  He was granted a waterways license to replace a dilapidated building with a new building that would be office space and residential condominiums, but the license included conditions requiring public access over his property, publicly-available restrooms, and so on.  He looked to the courts for relief.

The Land Registration Act

The basis for Arno’s claim was the Land Registration Act, which provides a process by which the Land Court ascertains title to land so that land becomes free of all rights not specifically listed in the court’s certificate.  Arno had a Land Court certificate, which he believed established that he owned the land on which he proposed to build in fee simple, free of any public rights in tidelands.  The Supreme Judicial Court disagreed.  It declared that Arno’s land is still subject to the public’s rights. 


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