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 betweenBeachpath.JPG the high and low water marks (out to 100 rods).  This statute was explicated in the classic 1857 case Commonwealth v. Roxbury, especially in the 25-page “note” (pdf) appended to the case by the then-clerk (and later Supreme Judicial Court and U.S. Supreme Court Justice) Horace Gray, detailing all of the common-law developments of the Colonial Ordinance to date.  As outlined by Justice Gray and in later decisions of the SJC, the Colonial Ordinance has been construed to mean that when owners convey land abutting the shore, they are presumed to have conveyed the adjoining flats unless there is evidence that they intended to retain the flats and convey the upland only.

A recent Appeals Court decision found the limits of this presumption in Gray’s anatomy of the Colonial Ordinance.  In Kane v. Vanzura, the plaintiffs sought to establish their rights to use private ways and a beach on Hingham Harbor.  The defendants claimed that they owned the ways and the beach.  The history of the conveyances was familiar to those of us who have litigated similar cases:  In the 19thcentury, all of the subject land was held by Samuel Downer.  His estate began to convey out parcels of the land after his death in 1881.  Parcels on the shore were conveyed first to the predecessors of the defendants; parcels farther inland were conveyed to predecessors of the plaintiffs with “the right, so far as I have the power to grant the same, to use the beach.”  The issue was whether the trustee under Downer’s will had that power.  The Land Court said no, because when the beach-abutting properties were conveyed first, the flats –i.e., the beach – were conveyed with them, so the trustee had no title in the flats left to convey.

The Appeals Court disagreed.  It relied on one unusual feature of Downer’s land when it was conveyed.  The private ways by which the boundaries in the deeds were described lay precisely between the upland and the flats.  Diving deep into Gray’s note, the court found a little-noticed principle that when the upland does not abut the flats, but is separated from the flats by a way, a conveyance of the uplands described as bounding on the way “excludes the flats beyond.”  As a result, the court held, when the Downer estate conveyed the upland parcels to the defendants’ predecessors, it retained title to the flats, and therefore had the right to grant the plaintiffs’ predecessors the right to use the flats for a beach.

The situation in Kane may be unusual, but it illustrates that these old and hidden principles behind the Colonial Ordinance still matter, and that Justice Gray’s anatomy of the law still carries weight.  However, as the Appeals Court noted, left unresolved by its decision is the question of just who owns those flats today.