Getting to the Water

by Nicholas Walsh, PA

The ownership is subject to the ancient easement permitting the public to enter the intertidal lands for fishing, fowling and navigation. Fishermen’s Voice photo

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 title to land bounded by tide water extends from the mean high water mark to the mean low water mark. The upland owner can boot a trespasser off his beach.

The ownership is, however, subject to the equally ancient easement permitting the public to enter the intertidal lands for fishing, fowling and navigation. Maine law holds that the public may fish, fowl, or navigate on the privately owned land for business or sustenance, but also for pleasure. I wrote about this before (FV, October 2013, or my website).

The easement does not encompass recreational activities unrelated to fishing, fowling and navigation – sunbathing or a picnic on the beach is outside the easement’s scope. This restriction is increasingly challenged by those who say swimming, strolling and sunbathing feed our souls if not our bodies, and are the modern equivalent to fishing, fowling and navigation.

A 2011 Maine case, specifically allowing a scuba diver to cross another’s intertidal lands and enter the sea , held ”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). There are many who thought the McGarvey case presaged a big expansion of the public easement, to include purely recreational uses.

Enter the Goose Rocks Beach case. Goose Rocks Beach is a two mile sandy beach in Kennebunkport bordered by ninety-five pricey homes. Since the 1800s the public has used the beach for recreation, often in large numbers. Over the years the town employed life guards at the beach, gave swimming lessons, and otherwise acted as though the public had a right to be on the beach for recreation. Beginning about ten years ago the town began suggesting that the upland owners’ ownership of the beach is in fact subject to the public’s right to recreate there. A group of property owners sued the town seeking clarification of the issue, and the town counterclaimed, asking the court to declare that the public enjoys an easement allowing it access to Goose Rocks Beach for swimming and other recreational uses.

The town won the first go-round. The trial court ruled that the town had proved that a “prescriptive easement” had come to exist, allowing the public recreational access to the beach.

An easement is a right to land short of possession, typically but not always for a way. For example, CMP may have the right to maintain a line across my land, but it can’t tell me to stay off the land.

A prescriptive easement is an easement won by adverse possession. As many a savvy landowner knows, another person can gain title to property by treating it as his for a period of 20 years or more. If I move into an empty house, don’t hide the fact, and treat the house as my own, after 20 years my “adverse possession” – possession which tells the world that I consider myself the owner of the house - may ripen into legal title. The same is true of easements. If a neighbor begins driving across my property on an old woods road and I ignore it long enough, not expressly giving permission but not preventing the use, my neighbor may come to have a legal easement. If I give permission to the use of the woods road (or to the use of my empty house), the use is permissive and no adverse possession occurs. Complicated, but like most land use law it makes sense.

The Goose Rocks judge ruled that the public had, by its decades of use of the beach, created an easement by prescription to use the beach for recreation. The court also ruled a similar “easement by custom” had been created. An easement by custom is an easement created because since time began, as it were, a public walking path had existed across that field, etc. They are common in England, where land uses are so often ancient.

The parties appealed, and after a false start the Law Court handed down its ruling. The court held first, that the town had to prove the public’s use of each of beachfront parcels for which it sought to establish the prescriptive easement: it was not enough to prove that the public used the entire beach in general. The case is going to go back to court to see if Kennebunkport can prove that case. There are 110 parcels, so it’s a huge task.

More critically, the Law Court held that the Town has to provide evidence to rebut Maine’s presumption that public recreational uses are undertaken with the permission of the landowner. (Remember, landowner permission destroys an adverse possession.) Maine’s “open lands” law states that unless a landowner posts the land a hunter or hiker may presume that he or she has permission to enter. In most states the opposite is true: even if the land is not posted, you are a trespasser unless you have express permission to enter the land.

The presumption of public access is an old and economically valuable tradition in Maine, without which hunting and many other upland recreational uses would be impaired, and the Law Court doesn’t want the Goose Rocks case to muddy it up. So the Law Court told the trial court that when it renews the trial it must find for the landowners unless the court finds that the town has rebutted the presumption that the public had, all these years, been using the beach with the permission of the landowners, not “adversely” to them. Just to make itself perfectly clear, the court wrote “The public’s recreational use of private land, when that use does not interfere with the ownership interest of the landowner, does not, without more, rebut the presumption of permission.” So it won’t be enough for Kennebunkport to prove picnics, swimming lessons and lifeguards: the town has to prove that the public pulled out no trespassing signs or otherwise interfered with the owner’s interests. I don’t see it happening.

Bottom line, many people saw Goose Rocks as an opportunity for the court to extend the ancient public easement beyond fishing and foraging to uses that feed our souls if not our bodies. The Law Court instead became concerned with tampering with Maine’s open land tradition, and very clearly declined to expand the colonial easement.

The court also drop-kicked the easement by custom finding, finding that we just aren’t an old enough country to employ that law.

This analysis is simplified and ignores many subtleties and legal and statutory considerations. If you have a similar issue seek out a land lawyer.

Nicholas Walsh is a Portland maritime attorney with 26 years’ experience. He may be reached at (207) 772-2191, or nwalsh@gwi.net.