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. 

Only the Legislature

There are three bases for the court’s decision, each of which is significant.  First, the court held that only the Legislature can extinguish the public’s rights in tidelands.  This basis, which comprises most of the opinion, is also the most problematic.  I’ve always viewed it as a separation of powers question.  If only the Legislature can extinguish these rights, then a court lacks power to make factual findings that determine these rights, such as the location of high and low water marks.  While the public’s rights in tidelands are very important, there are more important rights — I’m thinking, in particular, about constitutional and civil rights — where courts make decisions and those decisions, right or wrong, cannot be overturned after they become final.  This is fundamental to the legal system.  The court’s opinion does not address this issue.

Public Trust Rights Are Exempt from Registration

The second basis for the court’s decision is the soundest, although it is only two paragraphs long.  The court held that the public rights in tidelands are not subject to the Registration Act because they derive from the Waterways Act, and the Registration Act exempts “claims or rights arising or existing under … the statues of this commonwealth” from the rule that rights not listed on the Land Court’s certificate do not burden the land.

When an Easement is not an Easement

The final basis for the court’s decision is a philologist’s delight.  Essentially, the court seeks to clarify that, although the public’s rights in tidelands have been consistently (and statutorily) characterized as easements and conditions subsequent, they are not really, or, as the court puts it, these words are not “[to] be interpreted as importing the manifold doctrines, limitations, and precedents that apply to those words in ordinary contexts where they are used to reflect bargains struck between or among private parties.”  In other words, there are no words that properly characterize the public’s rights, and the proprietary terminology traditionally used is makeshift, at best.  I’m reminded of the saying that the Inuits have many words to describe snow.  In contrast, the legal lexicon apparently lacks sufficient words to describe the public’s rights in tidelands.


Under Arno, the court has held that the Registration Act cannot extinguish public rights in tidelands, based in part on the language of that statute (the exemption for rights under state statutes).  That said, there are issues with respect to separation of powers and terminology that arise from the court’s reasoning.  These will have to be addressed in the future.