Fishing, Fowling and Navigation

by Nicholas Walsh, PA

When I was a kid, my favorite fishing spot was a narrow tidal gut, reliable for bluefish and through which the waters of Cape Pogue Bay flowed and still flow. A house sits on a low bluff hard by the gut, looking north over Vineyard Sound and the Bay, heaven on earth. In my time a mean man lived there – so mean, it was said he relegated his wife to the back of the house so only he could enjoy the stupendous view. He hated fishermen, and tried to keep them off his beach with vitriol and signs. But we knew that so long as we carried a fishing rod we could be there, and it was fun to see the steam come out of his ears when we told him so.

In the majority of states a landowner’s property line ends at the mean high water mark. In these states the intertidal zone is owned by the state, which holds the land in trust for its citizens. But in Massachusetts and Maine, by virtue of an ancient colonial enactment commonly called the Ordinance of 1641 but really passed in 1647, and remaining in force to this day, the title of the owner of land bounded by tide water extends from the mean high water mark over the shore or flats to the mean low water mark. (If the shore is very flat, such that the low tide mark is hundreds of yards from the shore, there is a limit to the private ownership: it does not extend beyond one hundred rods (1,650 feet) from the high tide mark.) The owner owns the land “in fee”, meaning outright, same as you or I may own a house. The owner can sue for trespass, and may build and wharf out, subject to regulation.

The ownership is, however, subject to the equally ancient easement permitting the public to enter the intertidal lands for fishing, fowling and navigation. The scope of the public easement is broad, or, as Maine’s Supreme Court put it, “sympathetically generous.”
Maine law holds that the public may fish, fowl, or navigate on the privately owned land for business or sustenance, but also for pleasure. The public can sail over the submerged lands, may land to rest or resupply, may hunt ducks and fish on the private land, and may take clams or worms from the flats, all under the easement. Any wharf or improvement on the intertidal lands may not unreasonably impede the public’s right to navigate over the submerged lands. The public may engage not only in fishing, fowling, and navigation, but also in activities reasonably incidental to those activities. For example, under “navigation” the operator of a power boat for hire may pick up and land passengers on the intertidal land, and “navigation” also includes the right to walk or skate over frozen intertidal waters. A vessel operator may moor vessels and discharge and take on cargo on intertidal land, and, after landing, may “pass freely to the lands and houses of others besides the owners of the flats,” according to an 1845 case. (In other words, an operator may offload cargo or passengers onto the privately-owned intertidal zone under the public easement of navigation, and can then cross to the upland property of his land or to the land of another, with the owner’s permission.) “Fishing” is likewise broadly construed to include worming and clamming. Old cases hold that the easement includes the right to drive cattle over the intertidal zone.

There are limits to the public easement. Taking of empty shells, sand, soil or ballast rock is not within the easement’s scope. “Navigation” may not include the right to walk over the submerged land, following the shore, although why the court has once so strictly limited the definition of “navigation” is a mystery to me, and I suspect that law is vulnerable to challenge. The easement does not encompass recreational activities unrelated to fishing, fowling and navigation – a picnic on the beach is outside the easement’s scope, although a sandwich eaten by a hungry clammer or fisherman sitting on the beach is not.

Seaweed is a special case. Although there is no Maine case on point, the law seems to distinguish between seaweed which is washed up on the shore and seaweed which is either growing in the intertidal zone or adrift. Seaweed washed up on shore belongs to the property owner. Seaweed which is growing in the intertidal zone or adrift is subject to the easement, and may be harvested by anyone.

This area of law is on the move. A 2011 case – specifically allowing a scuba diver to cross another’s intertidal lands and enter the sea – holds ”our common law has regularly accommodated the public’s right to cross the intertidal land to reach the ocean for ocean-based activities”, even when those activities are not related to fishing, fowling or navigation. The court held “as have the jurists before us, we would continue to strike a reasonable balance between private ownership of the intertidal lands and the public’s use of those lands.” (McGarvey v. Whittredge). The stage may be set for a more expansive view of the public easement, perhaps, as some have lobbied, to include sunbathing and similar activities unrelated to fishing, fowling or navigation.

Nicholas Walsh is an attorney specializing in maritime law and waterfront matters. He can be reached at 772-2191, or nwalsh@gwi.net.