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
Massachusetts has an old, well-developed body of case law on “riparian” rights — the rights of landowners in surface water and groundwater. Given the long Massachusetts coastline, it therefore comes as a bit of a surprise that the Commonwealth’s law of “littoral” rights — the rights of owners of land abutting the seashore — is much less developed. In a recent decision, Judge Gary A. Nickerson, sitting in Barnstable Superior Court, has made an important contribution to the law of littoral rights.
Woods v. Brimm (pdf) involves a dispute over a series of revetments, or stone sea walls, that residents of Lieutenant’s Island in Wellfleet Harbor installed to control erosion of their beaches. The coast of Lieutenant’s Island is subject to waves, currents and tides that erode some beaches and deposit sand on other beaches. The Woodses’ beach was historically one that benefited from the deposit of sand, or accretion. Between 1980 and 2000, several of the Woodses’ neighbors along the shore built revetments in an effort to arrest the erosion of their beaches. The Woodses claimed that their neighbors’ revetments just shifted the erosion to the Woodses’ beach. The Woodses brought this action against their neighbors claiming nuisance, negligence, and trespass.
Judge Nickerson decided that the law of riparian rights provides an appropriate framework for analyzing the parties’ littoral rights. On the Woodses’ nuisance claim, the judge found that the “reasonable use” rule usually applied in nuisance actions doesn’t apply. Rather, nuisance here depends on whether the defendants acted reasonably in constructing and maintaining their revetments — that is, whether the revetments harmed the Woodses’ property by blocking or changing the natural flow of sand and water.
Most 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.
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.