Excellent article in the globe... we all should read

[Canalman]

In the business section pg E1 there is an article about reclaiming Massachusetts beaches. I've been thrown off a beach before and even knowing my rights it was a tough battle. Steve Bailey, does an excellent job showing how silly the law really is and presents an interesting point, comparing the ocean to the grand canyon and saying that it's ridiculous to fence it off and make the beaches inaccessable to anyone not carrying a rod. Give it a read, I plan on sending him an email to encourage him to write more on the subject. He's right when he says that if the law is to be reversed those of us who are for the reversal will have to be as organized and adamant as those who are against it.

-Dave

[Mike P]

This proposal has been kicked around before. A bill to grant the public at large the right of passage below high water was pending before the Legislature about 25 years ago. Before it could be enacted, someone took it up to the Supreme Judicial Court for an advisory opinion. The SJC ruled that granting such a right would be tantamount to a "taking" of private property for public purposes, and would require compensation to the landowner.

Of course, since then, the make-up of the SJC has changed quite a bit

[Canalman]

Originally Posted by Mike P

Of course, since then, the make-up of the SJC has changed quite a bit

EEEEE...

[likwid]

Originally Posted by Mike P

This proposal has been kicked around before. A bill to grant the public at large the right of passage below high water was pending before the Legislature about 25 years ago. Before it could be enacted, someone took it up to the Supreme Judicial Court for an advisory opinion. The SJC ruled that granting such a right would be tantamount to a "taking" of private property for public purposes, and would require compensation to the landowner.

Of course, since then, the make-up of the SJC has changed quite a bit

You mean exactly what they do with property they deem necessary for highways etc.?

Without compensation?

Wtf.

[clambelly]

sorry, but i don't buy it. it sucks when you get harrassed by people when you are on the beach, or in my case, while im digging clams mostly, but taking peoples property to give it to the general public??? those folks who own those lands pay hefty taxes that support many of the cities and towns. whos going to make up all that revenue?puhlease. the last thing i want is the government taking lands more then they already do. its typical of the globe to write an article like that.

[gregory2327]

I am a conservative and strongly believe in personal rights over most everything. I think it is shame when the government takes land from people for good reason even with compensation, never mind the new ability to take private land just so the local government can make more money. But the tidal areas are a tough nut to crack

Do land owners own the land to the mean low tide mark? Should they? If yes then no body has any business being there rod or not.
If this is the case, then do the land owners have the right to fence off this area on the ocean side to keep boats out when the tide rolls in?

Do the land owners own the land to the mean high tide mark? Should they? If yes then anyone and their brother should be allowed the freedom to prance around on the low tide land -rod or not.

It is as simple as that to me. I'm not really interested in what has historicly been done because laws get enacted for all the wrong reasons all the time. I'm just interested in the way it should be done. In my humble opinion land owners should own land ot the mean high tide mark. After that they get no say about the land exposed during low tide. They pay higher taxes for the privelige to own waterfront property plain and simple. Whether they own the land to the high or low tide mark makes no difference, it is still waterfront.

That my .02 (not that it matters or that there are many people around to read this on a Friday before the holiday)!

[Canalman]

Originally Posted by clambelly

sorry, but i don't buy it. it sucks when you get harrassed by people when you are on the beach, or in my case, while im digging clams mostly, but taking peoples property to give it to the general public??? those folks who own those lands pay hefty taxes that support many of the cities and towns. whos going to make up all that revenue?puhlease. the last thing i want is the government taking lands more then they already do. its typical of the globe to write an article like that.

Well... I don't think you're seeing things clearly... and I'm not trying to start a big battle here, we are the ONLY state that has this weird law and... this would not take away their land, just about 10 feet of it.. low tide to high water... the ocean is everyones and this elitist attitude the shore dwellers have adopted is just ugly... but this law will not be overturned so you don't have to worry about the tax support...

-Dave

[Redsoxticket]

The ocean belongs to state (i.e. everyone) and if there was "no" easement or right of way between the high and low tide the ocean would be land locked or ocean locked in this case. The ocean is a resource just like a farm and one is entitled to its crops.

[Tagger]

No access ? Then No National Flood Insurance... Want to be private ? Then get your own flood insurance privately . That will open up some water front over time,, and a big burden off the tax payers back ,,,This idea will never fly with so many politicains owning water front .

[clambelly]

Originally Posted by gregory2327

Do the land owners own the land to the mean high tide mark? Should they? If yes then anyone and their brother should be allowed the freedom to prance around on the low tide land -rod or not.

from what i know, this is the current state of the law, at least thats what i thought. i know, in my town people come and go freely between the low and high tide water mark whilest digging shellfish. yes, there have been battles, but people are allowed to come and go freely.

[Maloney]

Texas has the "Open Beaches Act". The public owns the beach to the vegetation line.

[Mike P]

In Mass, since about 1648, the landowner owns to the mean low water mark. That is also the case in Maine, which was part of Mass until 1820.

However, the old colonial ordinance also gave a right of way between high and low water for three purposes--fishing, waterfowling and navigation. Fishing has been interpreted to include shellfishing, and also interpreted to allow the fishermen to place the tools of their trade on the shore below high water. Navigation includes portage of small watercraft. However, you can't rake seaweed, for example, or collect shells, nor can the public at large walk the beaches for any other purpose.

I believe Maine has a broader right of passage below high water.

[UpChunk]

Riparian Rights:
Water Rights

A group of rights designed to protect the use and enjoyment of water that travels in streams, rivers, lakes, and ponds, gathers on the surface of the earth, or collects underground.

Water rights generally emerge from a person's ownership of the land bordering the banks of a watercourse or from a person's actual use of a watercourse. Water rights are conferred and regulated by judge-made common law, state and federal legislative bodies, and other government departments. Water rights can also be created by contract, as when one person transfers his water rights to another.

In the eighteenth century, regulation of water was primarily governed by custom and practice. As the U.S. population expanded over the next two centuries, however, and the use of water for agrarian and domestic purposes increased, water became viewed as a finite and frequently scarce resource. As a result, laws were passed to establish guidelines for the fair distribution of this resource. Courts began developing common-law doctrines to accommodate landowners who asserted competing claims over a body of water. These doctrines govern three areas: riparian rights, surface water rights, and underground water rights.

An owner or possessor of land that abuts a natural stream, river, pond, or lake is called a riparian owner or proprietor. The law gives riparian owners certain rights to water that are incident to possession of the adjacent land. Depending on the jurisdiction in which a watercourse is located, riparian rights generally fall into one of three categories.

First, riparian owners may be entitled to the "natural flow" of a watercourse. Under the natural flow doctrine, riparian owners have a right to enjoy the natural condition of a watercourse, undiminished in quantity or quality by other riparian owners. Every riparian owner enjoys this right to the same extent and degree, and each such owner maintains a qualified right to use the water for domestic purposes, such as drinking and bathing.

However, this qualified right does not entitle riparian owners to transport water away from the land abutting the watercourse. Nor does it permit riparian owners to use the water for most irrigation projects or commercial enterprises. Sprinkling gardens and watering animals are normally considered permissible uses under the natural flow doctrine of riparian rights.

Second, riparian owners may be entitled to the "reasonable use" of a watercourse. States that recognize the reasonable use doctrine found the natural flow doctrine too restrictive. During the industrial revolution of the nineteenth century, some U.S. courts applied the natural flow doctrine to prohibit riparian owners from detaining or diverting a watercourse for commercial development, such as manufacturing and milling, because such development impermissibly altered the water's original condition.

In replacing the natural flow doctrine, a majority of jurisdictions in the United States now permit riparian owners to make any reasonable use of water that does not unduly interfere with the competing rights and interests of other riparian owners. Unlike the natural flow doctrine, which seeks to preserve water in its original condition, the reasonable use doctrine facilitates domestic and commercial endeavors that are carried out in a productive and reasonable manner.

When two riparian owners assert competing claims over the exercise of certain water rights, courts applying the reasonable use doctrine generally attempt to measure the economic value of the water rights to each owner. Courts also try to evaluate the prospective value to society that would result from a riparian owner's proposed use, as well as its probable costs. No single factor is decisive in a court's analysis.

Third, riparian owners may be entitled to the "prior appropriation" of a watercourse. Where the reasonable use doctrine requires courts to balance the competing interests of riparian owners, the doctrine of prior appropriation initially grants a superior legal right to the first riparian owner who makes a beneficial use of a watercourse. The prior appropriation doctrine is applied in most arid western states, including Arizona, Colorado, Idaho, Montana, Nevada, New Mexico, Utah, and Wyoming and requires the riparian owner to demonstrate that she is using the water in an economically efficient manner. Consequently, the rights of a riparian owner under the prior appropriation doctrine are always subject to the rights of other riparian owners who can demonstrate a more economically efficient use.

Under any of the three doctrines, the interests of riparian owners are limited by the constitutional authority of the state and federal governments. The Commerce Clause of the U.S. Constitution gives Congress the power to regulate navigable waters, a power that Congress has exercised in a variety of ways, including the construction of dams. In those instances where Congress does not exercise its power under the Commerce Clause, states retain authority under their own constitutions to regulate waterways for the public good.

However, the Eminent Domain Clause of the Fifth Amendment to the U.S. Constitution limits the power of state and federal governments to impinge on the riparian rights of landowners by prohibiting the enactment of any laws or regulations that amount to a "taking" of private property. Laws and regulations that completely deprive a riparian owner of legally cognizable water rights constitute an illegal governmental taking of private property for Fifth Amendment purposes. The Fifth Amendment requires the government to pay the victims of takings an amount equal to the fair market value of the water rights.

Some litigation arises not from the manner in which neighboring owners appropriate water but from the manner in which they get rid of it. The disposal of surface waters, which consist of drainage from rain, springs, and melting snow, is typically the source of such litigation. This type of water gathers on the surface of the earth but never joins a stream, lake, or other well-defined body of water.

Litigation arises when one owner drains excess surface water onto neighboring property. Individuals who own elevated property may precipitate a dispute by accelerating the force or quantity of surface water running downhill, and individuals who own property on a lower level may rankle their neighbors by backing up surface water through damming and filling. Courts are split on how to resolve such disputes.

Some courts apply the common-law rule that allows landowners to use any method of surface water removal they choose without liability for flooding that may result to nearby property. Application of this rule generally rewards assertive and clever landowners and does not discourage neighbors from engaging in petty or vindictive squabbles over surface water removal.

Other courts apply the civil-law rule, which stems from Louisiana, a civil-law jurisdiction. This rule imposes strict liability for any damage caused by a landowner who interrupts or alters the natural flow of water. The civil-law rule encourages neighbors to let nature take its course and live with the consequences that may follow from excessive accumulation of standing surface water.

Over the last quarter century many courts have begun applying the reasonable use rule to surface water disputes. This rule enables landowners to make reasonable alterations to their land for drainage purposes as long as the alteration does not unduly interfere with a neighbor's right to do the same. In applying this rule, courts balance the neighbors' competing needs, the feasibility of more appropriate methods of drainage, and the comparative severity of injuries.

Surface water that seeps underground can also create conditions ripe for litigation. Sand, sod, gravel, and even rock are permeable substances in which natural springs may form and moisture can collect. Underground reservoirs can be tapped by artificial wells that are used in conjunction by commercial, municipal, and private parties. When an underground water supply is appreciably depleted by one party, other parties with an interest in the well may sue for damages.

As with surface water and riparian rights, three theories of underground water rights have evolved. The first theory, known as the absolute ownership theory, derives from English law and affords landowners the right to withdraw as much underground water as they wish, for whatever purpose, requiring their neighbors to fend for themselves. Under the second theory, known as the American rule, landowners may withdraw as much underground water as they like as long as it is not done for a malicious purpose or in a wasteful manner. This theory is now applied in a majority of jurisdictions in the United States.

California has developed a third theory of underground water rights, known as the correlative theory. The correlative theory provides each landowner with an equal right to use underground water for a beneficial purpose. But landowners are not given the prerogative to seriously deplete a neighbor's water supply. In the event of water shortage, courts may apportion an underground supply among landowners. Many states facing acute or chronic shortages have adopted the correlative theory of underground water rights.

Water rights can also be affected by the natural avulsion or accretion of lands underlying or bordering a watercourse. Avulsions are marked by a sudden and violent change to the bed or course of a stream or river, causing a measurable loss or addition to land. Accretions are marked by the natural erosion of soil on one side of a watercourse and the gradual addition of soil to the other side. The extended shoreline made by sedimentary deposits is called an alluvion. Water rights are not altered by avulsions. However, any accretions of soil enure to the benefit of the landowner whose holdings have increased by the alluvion addition.

Although water covers more than two-thirds of the earth's surface, U.S. law treats water as a limited resource that is in great demand. The manner in which this demand is satisfied varies according to the jurisdiction in which a water supply is located. In some jurisdictions the most productive use is rewarded, whereas in other jurisdictions the first use is protected. Several jurisdictions are dissatisfied with both approaches and allow a water supply to be reasonably appropriated by all interested parties. Each approach has its weaknesses, and jurisdictions will continue experimenting with established legal doctrines to better accommodate the supply and demand of water rights.

See: Environmental Law; Land-Use Control; Law of the Sea; Pollution; Solid Wastes, Hazardous Substances, and Toxic Pollutants; Water Pollution

[basswipe]

Originally Posted by Maloney

Texas has the "Open Beaches Act". The public owns the beach to the vegetation line.

Yes Texas does have this but it is being successfully challenged by the Corpus Christi city council and resort owners and as a result 7200ft of beach betweem Packery Channel and Padre Balli County Park on north Padre Island will be prohibited to vehicular access.

The only thing standing between this actually being implemented is the TOBA and lot of grassroots organizations.

Once the gov. and special interest groups get their foot in the door its the beginning of the end.After vehicular access is denied pedestrian prohibition will eventually follow.

[likwid]

If this gets pushed, all the area land owners will do and have the towns do is put up no parking signs.

No access, no beach.

And its pissing me the eff off.

[Swimmer]

Is what UPCHUNK posted the globe article?

[Mike P]

Nice essay on riparain rights, but they have nothing to do with shore access issues and coastal property rights. The area of law in question is littoral rights.

Almost half of the states border tidewaters. In all but 2, the landowner's property rights end at the mean high water mark. The land between high and low water, called the intertidal zone, is held by the state in trust for the use of the public. This is based on principles of English common law going back hundreds of years. Two states, Mass and Maine, granted ownership to the mean low water mark. This was done in colonial times, when maine was part of Mass. The purpose of the law was to encourage landowners to build docks.

[Backbeach Jake]

Originally Posted by Tagger

No access ? Then No National Flood Insurance... Want to be private ? Then get your own flood insurance privately . That will open up some water front over time,, and a big burden off the tax payers back ,,,This idea will never fly with so many politicains owning water front .

Brilliant! I've always had a little resentment over subsidizing Flood insurance for someone who wouldn't give me the time of day much less than invite me over. And those poor unfortunates who try to throw me off the beach, I tell them " Call a Cop". They never do.

[Sweetwater]

I am also a very strong proponent of land and property rights. However, the question here is equal parts "access" and property rights. The ocean is a public resource and when land owners deny access to public property, that is were the rights of the two parties converge and reasonable resolutions are needed.

In some states, beach front property owners have rights up and unto a reasonable point that also allows public use of the beach. For example, in South Carolina, beach front property owners have rights to the dune edge (which is quite some distance from the high tide line due to the very broad beaches along those stretches). Further, there are regular easments along the beach front that allow the public to walk to the beach between properties.

I was shocked when I first moved to Massachusetts (1981) and found there there were such things as "private beaches" and when I encountered my first fence that extended to the high water mark. This is an anathema in many states (like South Carolina) that are VERY strong property rights states.

I think we can come to a reasonable use of land that both provides public access to a public resource, while protecting the rights of those of have substantial investments in beach front properties. However it will require a change in attitudes among both owners and the public.

[UpChunk]

No,I tried to find the article in the globe, but came up with definitions of Riparian rights, which i did not mean to paste the entire thing, so sorry, i was trying put in a link.oops!

[Maloney]

From the Conservation Law Foundation website:

http://www.boston.com/news/local/mas...en_shorelines/

[basswipe]

The glossy book invites beachgoers to diversify their outings, acknowledging that options can be limited in a state that has 1,500 miles of coastline, three-quarters of which is privately owned and off-limits.Quoted from the boston.com article.

That's insane.You folks in Massachusetts need to have yourselves a revolution!Property rights my ass!When YOU the taxpaying citizen can't walk 3/4 of YOUR coastline...that's a problem.

[Mike P]

I guess you don't care about the rights of the shorefront owners paying even more taxes than the average citizen, then. They're not getting a free ride, ya know. They're assessed to the mean low water mark.

I knew a guy who was even paying taxes on land that was under water at low tide.

[basswipe]

Originally Posted by Mike P

I guess you don't care about the rights of the shorefront owners paying even more taxes than the average citizen, then. They're not getting a free ride, ya know.

Nope I don't care that they pay more.All the citizens of Mass pay. Just because some citizens of Mass pay more than the average citizens they should have more rights?When you put the money that all non-waterfront property owners pay next to that of those who own waterfront property,the waterfront folks don't even come close to the monetary amount payed by non-waterfront tax payers.Should they have more rights?Hell no!And to restrict 3/4 of the shoreline from access...no way,this is America.

Nobody gets a free ride Mike.I'm a flat tax rate proponent.We should all pay the same and do away with the priviledged bull$h!t and put all American citizens on a slightly more level playing field.

You folks in Mass are nuts to allow 3/4 of the shoreline YOU pay for to be unaccessible.

[basswipe]

As I can no longer comment on this thread due to my New Year's resolution I have to state my beliefs without prejudice.

I am a STRICT federal constitutionalist.I believe in our constitution literally.1st amendment says I have the freedom of speech then I will say what I believe without yelling "FIRE".Second amendment says I have the right to own a firearm and in this day and age means I should be able have a fully automatic M16 assault rifle to which I can counter a government soldier.The third amendment says I have the right to worship the sun if I choose to do so as long as it doesn't interfere with the state.......shall I continue?

NEVER give up YOUR rights because someone else is putting more money into the pot!Millions of lawmakers/lawyers/ judges have spent way to much time AND MONEY interpreting a document that does not need any interpretation whatsoever!NEVER!

My response to this thread was not meant to be taken as a hostile response,but I am who I am.Its time to stand up regardless of how rediculous the Mass state law is!And rediculous it is!

[clambelly]

Originally Posted by basswipe

You folks in Mass are nuts to allow 3/4 of the shoreline YOU pay for to be unaccessible.

good luck walking all that shoreline. id say half the shorelines in mass are inexcessible because of all the damn boulders the glaciers left when they receeded.

besides that...im a shellfisherman and ive had many battles with the property owners who think they own the water! however, the law is the law. if you don't like it, lobby to have it changed. your right, this is America. we have the right to assembly. march on beacon hill and let the solons know how you feel.

[Skitterpop]

[quote=Mike P]This proposal has been kicked around before. A bill to grant the public at large the right of passage below high water was pending before the Legislature about 25 years ago. Before it could be enacted, someone took it up to the Supreme Judicial Court for an advisory opinion. The SJC ruled that granting such a right would be tantamount to a "taking" of private property for public purposes, and would require compensation to the landowner.

I thought the old law stood? Safe between high and low... ?
Do tell more please....you rule... I will vote for you to be a significant judge ~~~~~~~~~~~~~~~~

[Skitterpop]

And it is legal to swim between the low- and high-water marks after the tide comes in -- as long as your feet don't touch the ground, Del Bono said.


woop tee doo.... Freedom?

American in title whoops

[Mike P]

Originally Posted by basswipe

I am a STRICT federal constitutionalist.I believe in our constitution literally.1st amendment says I have the freedom of speech then I will say what I believe without yelling "FIRE".Second amendment says I have the right to own a firearm and in this day and age means I should be able have a fully automatic M16 assault rifle to which I can counter a government soldier.The third amendment says I have the right to worship the sun if I choose to do so as long as it doesn't interfere with the state.......shall I continue?

Yeah, you should have continued---you stopped too soon:

Amendment V

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

[spence]

Originally Posted by basswipe

I am a STRICT federal constitutionalist.I believe in our constitution literally.

Not sure if there is a literal interpretation of the constitution...if there were we wouldn't need the judicial system would we

-spence