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.
Because the NGVD method yields an elevation, rather than a line that’s fixed on the ground, this elevation can, where the local topography isn’t flat, intersect the land in multiple locations, resulting in multiple “mean low water marks.” Worse, because this elevation is based on data from remote survey stations, and doesn’t take account of actual conditions on a given parcel, it may not correspond at all to the actual location of low tide on that parcel. The possibility of absurd results is well illustrated by Spillane itself, where the NGVD-extrapolated “mean low water mark” is about 800 feet landward of the actual location of the average low tide on that parcel, thus cutting the adjoining owner off from the water (ownership-wise) most times of the day.
The Post-Spillane Era
In abruptly discarding the principles that have long governed the location of the low water mark, the Appeals Court cited the benefits of certainty. However, because the location of low tide changes from day to day, month to month and season to season, a shifting low water mark is necessary to fulfill the purpose of the Colonial Ordinance of 1641-1647 and avoid cutting owners of oceanfront property off from the water. The need for a low water mark that shifts with the tides was recognized in centuries of pre-Spillane case law, and continues to exist today. While the SJC denied further appellate review in Spillane, it will be interesting to see if that court revisits this important issue in a future case. In the meantime, real estate lawyers, surveyors, and owners of oceanfront property must reckon with Spillane and the possibility that long-settled boundaries have suddenly moved, and private ownership to the water’s edge no longer exists.