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Untwisting the common law: public trust and the Massachusetts colonial ordinance.

I. INTRODUCTION

In the beginning, Nature was the law. And, the law had vision, and decreed that some lands were imbued with unique attributes making them different from all other lands. And such lands were bathed in water twice a day and they were called tidal flats or submerged lands or the shoreline.(1) And Nature in its wisdom proclaimed that such lands and the waters that covered them were held by all for the common beneficial uses of fishing and navigation, to feed and to survive and to escape to distant shores.(2) And natural law limited the sovereign's power over the flats to a trust for the weal of all subjects that they may always fish and navigate and engage in commerce over the flats.(3) And the Doctrine of Public Trust came into existence.(4) And it descended to us through the Roman period of Justinian, the sealing of Magna Carta at Runnymead, and the creation of Colonial America.(5)

Having survived intact through the centuries, the public trust doctrine's scope was changed when the Massachusetts Colonial Ordinance of 1641-1647 ("Ordinance" or "Colonial Ordinance") altered the common law to stimulate the development of the colonial waterfront.(6) Extending private littoral ownership to include the area between the high and low water marks, the Ordinance encouraged the erection of wharves and other structures necessary for marine commerce without depleting the public treasury.(7) The result, however, was a diminution of the ancestral public rights over the flats.(8) Yet, the loss of public rights was not complete. The Ordinance safeguarded the common law rights of fishery and navigation, continuing the sovereign's control over the flats as public trustee.(9)

After the Revolution and the creation of the nation, the rights remaining under the public trust doctrine passed to the new citizens with all the other rights previously held by the Crown and people of England.(10) With the grant of plenary power in the founding constitutions of the newly created states, the power to control the flats was passed to the legislatures in trust for all.(11)

The flats, however, are not areas of dormancy, and soon, conflicting public and private uses had to be accommodated by the courts.(12) As the case law developed, the courts' analyses became ritualistic and less and less connected to the special circumstances that gave birth to the modifications of the common law.(13) Over the last two hundred years the Ordinance has been recited by the courts as the basis for expanded private littoral-property rights over the flats without counterbalancing the impact of this change in the common law with the original requirement of a concomitant benefit for the public.(14) In some states the courts have gone as far as granting prescriptive property rights to littoral owners based on uses other than improved maritime commerce.(15) This unbalanced approach has allowed the courts to find private rights to exclude others by filling or by erecting structures or enclosures on the flats. The new lands created by filling the once public flats have, in some instances, been found to belong to the littoral owner in fee simple absolute.(16) Such alienation of public property reflects a complete abdication by the state of its role as trustee over the flats. In some instances, the courts have safeguarded the private owner's beneficial economic use of the flats for tourism over the public's right to harvest shellfish.(17)

This Article posits that the long line of decisions has broadly and erroneously interpreted the colonial grant of rights to the littoral owners, while too narrowly construing the public rights surviving under the public trust doctrine.(18) In addition, the Article maintains that the courts' application of traditional property principles to the disposition of the tidal flats has failed to protect a unique form of public property.(19) The Article recognizes the weight that must be accorded to such a long lineage of judicial precedent; however, in modern times, the factors in the judicial equation have changed drastically.(20) Shoreline property, once considered valueless, has become enormously expensive as this unique resource became scarce.(21) In addition, the shores' uses have also changed as maritime commerce no longer reigns as the most valuable or common use of the coast.(22) These changes in the use and value of the flats, together with changes in water-borne transportation and commerce are sufficient to warrant a change in the common law. In the end, the Article urges a more balanced approach, elevating in the legal analysis the need for a public benefit prior to any diminution of public rights.(23) This approach will better serve present needs when allocating rights over the congested and limited shorelines.

II. ON PUBLIC TRUST

The development of the public trust doctrine follows a course from twelfth century natural law, through the common law, and finally positive law.(24) From time immemorial, some rights of the public have been considered dominant over those of the state.(25) As early as the time of Roman Emperor Justinian, the basic postulates of the public trust doctrine have been laid.(26) It held that the air, running water, the sea and its shores all belonged to mankind.(27) This concept of common ownership included a guarantee of the right to fish from the shores and banks of rivers and to navigate the common waters.(28)

Having traveled to England, the public trust doctrine was assigned to the Magna Carta and refined in the common law.(29) The shore and tidal flats were marked as communally owned property held by the Crown on behalf of the citizenry to guarantee the free exercise of commerce, navigation, and piscatory.(30) Under English common law, it was clear "that the right of property in all the soil which is covered by tide water, and is also a part of the nation's territory, is prima facie in the Crown by the common law."(31) It was also generally accepted that the Crown held all rights to the shore as "a trustee for the public, and cannot, since Magna Charta, convey it to a subject."(32) To allow for some private rights, the title to lands subject to public trust rights was split in two, the jus publicum, safeguarding the rights to the public, and the jus privatum, a lesser title granting private rights of use and possession subject to the jus publicum.(33) In Commonwealth v. Alger(34) the Massachusetts Supreme Court spoke to the dual nature of the title involved:
 [T]wo distinct rights are regarded ... [t]he jus privatum, or right of
 property in the soil, which the king may grant, and which may be held by a
 subject, and the grant of which will confer on the grantee such privileges
 and benefits, as can be enjoyed therein, subject to the jus publicum[,] ...
 the royal prerogative, by which the king holds such shores and navigable
 rivers for the common use and benefit ... [which] cannot be transferred to
 a subject ... by mere royal grant, without an act of parliament.(35)


By the time the public trust doctrine was an axiom of the common law, two principal rights were included in the jus publicum: the rights to fishery and navigation.(36) Of these two public uses, navigation has historically been considered the superior right.(37) These rights extended to those incidental privileges that were necessary for the public enjoyment of a right.(38) Thus, the privilege of anchorage was considered necessary for the full enjoyment of the right to navigate.(39) Other rights that have been protected by the public trust doctrine include the right to discharge or take on passengers or cargo from an intertidal shore, the right to moor and travel over frozen tidal waters, and, at least in Maine, the right to dig for worms and shellfish.(40) Some courts have held that in addition to the rights enumerated above, the public trust doctrine protects the rights to bathe and for hunting and recreation.(41) Incidental privileges also have included the right to disturb the bottom as needed to reach shellfish,(42) and the right to clam in the flats.(43) Thus, this ancient doctrine(44) descended through the revolution, from the Crown, to the colonies, to the several states, and then to the republic.(45)

However, through the Massachusetts Colonial Ordinance of 1641-1647, the common law of rights over the flats was modified to allow a littoral private owners to own down to the low water mark without a specific grant from the Sovereign.(46)

The Ordinance stated:
 It is declared, that in all creeks, coves, and other places about and upon
 salt water, where the sea ebbs and flows, the proprietor, or the land
 adjoining shall have propriety to the low water mark, where the sea doth
 not ebb above a hundred rods, and not more wheresoever it ebbs further:
 provided, that such proprietor shall not by this liberty have power to stop
 or hinder the passage of boats or other vessels, in or through any sea,
 creeks, or coves, to other men's houses or lands.

 ... And for great ponds lying in common, though within the bounds of
 some town, it shall be free for any man to fish and fowl there, and may
 pass and repass on foot through any man's propriety for that end, so they
 trespass not upon any man's corn or meadow. [1641, 47.].(47)


The Ordinance's grant of title over the flats limited the littoral owner to an ebb of one hundred rods.(48) This grant conveyed full title in the flats subject to specific limitations.(49) While enough to permit the upland owner to keep others out,(50) the grant protected the public rights of fishing, fowling, and navigation.(51) This colonial approach was later adopted by many states:(52)
 By the common law, it is clear, that all arms of the sea, coves, creeks
 &c., where the tide ebbs and flows, are the property of the sovereign,
 unless appropriated by some subject.... The right, however, of fishing in
 such places, or sailing over them in boats, is common to all the
 subjects....

 And this right of the sovereign extends to ordinary high-water mark; so
 that the shore, which is the space between high-water and low-water mark,
 belongs also to the sovereign....

 This right in the waters and shores of the sea passed from the crown ...
 to the council established at Plymouth ... and from that council so much of
 their territory thus acquired as was contained in the colony of
 Massachusetts Bay was transferred to the company who undertook the
 settlement of that colony; and their grant was confirmed by the charter of
 King Charles the First ... giving them [the power to rule] in as full and
 ample a manner as they were before held by the crown of England.... The
 company ... having ... become a state ... the people of the colony, in
 their politic capacity, succeeded to all the territorial rights, franchises
 and immunities which had ever belonged to the sovereign power of the parent
 country.(53)


The Massachusetts Ordinance departed from previous common law principles that limited the private ownership of littoral owners to the land above the high water mark.(54) The original basis for the grant of title in public trust property to private owners is lost in the smoke of history. Some assertions have included the use of prescription(55) while others have found basis in the Provincial Charter of 1691.(56) However, the most probable cause for the grant to littoral owners and the analysis most likely to produce useful results today is one based on the expectation of a public benefit to be derived from the development of the flats for navigation and commerce.(57)
 For the purposes of commerce, wharves erected below high water mark were
 necessary. But the colony was not able to build them at the public expense.
 To induce persons to erect them, the common law of England was altered by
 an ordinance, providing that the proprietor of land adjoining on the sea or
 salt water, shall hold to low water mark, where the tide does not ebb more
 than one hundred rods, but not more where the tide ebbs to a greater
 distance.(58)


The reason for the alteration of the common law in the Ordinance was well explained in Commonwealth v. Alger where the court reviewed the early cases interpreting the purpose of the Colonial Ordinance "to induce persons to erect wharves below high water mark, which were necessary to the purposes of commerce."(59) Thus, for a particular public purpose, private rights over a public resource were extended at the expense of public rights. The Ordinance, though annulled with the rest of the charter after the Revolution, became part of the common law in this country.(60) Two important points must be noticed at this juncture. First, the Ordinance created an exception to the application of the common law to satisfy a particular public need of a temporal nature.(61) Second, the granting of private ownership of the flats was more than an enhancement of littoral property rights, it represents a passing of some of the jus publicum from the sovereign to the private owner.(62)

In Alger, the courts interpreted the Massachusetts reservation of public rights broadly, making navigation and fishing in and over the tideland "the principal" rights.(63) Thus, compared with later cases such as Butler v. Attorney General(64) that list "bathing, fishing, fowling, [and] navigation"(65) as the only public rights reserved, Alger represents a broader reading of the rights remaining after the Ordinance.(66) Conversely, Butler and much of the subsequent case law limited public trusts rights in Massachusetts to those purposes which were "reasonably related" to fishing and navigation.(67) As noted before, these have included the right to walk over a private owners' flats to gain access to a jetty to fish.(68)

By 1857, the Ordinance was generally interpreted as having as its main purpose "to induce the erection of wharves for the benefit of commerce."(69) Therefore, after the common law was modified by the Colonial Ordinance, the littoral owner was given a qualified right to wharf out and raise structures over the flats subject to a limitation not to "materially impair[]" navigation.(70) In addition, while not clearly expressed in the early cases, the public retained the common law rights described in the Ordinance to fish and hunt on the flats.(71)

So, as the public trust doctrine developed in young America, tidal flats were open to public navigation(72) and fishery.(73) The littoral owner, however, could interfere with the public rights simply by erecting structures between the high and low water marks impeding lateral and horizontal access to the shore.(74) In New Jersey, Connecticut, and New York, the littoral owner may extend wharves beyond the high water mark unless the wharf interfered with navigation or there was an express prohibition by the legislature.(75) In these states the title to the flats between the high and low water marks remained with the state.(76)

In Massachusetts, the upland owner's title is good to the low water mark and it includes the right to build structures out on the flats and to wharf-out provided there is no interference with navigation.(77) By 1970, the Ordinance had been interpreted in Massachusetts as granting the littoral owners a "fee subject ... to the easement of the public."(78) The state was seen as having relinquished its title reservation of the jus publicum, or the dominant interest, making it subservient to the jus privatum held by the landowner.(79) In Rhode Island, as in Massachusetts, the unpublished Ordinance of 1707 granted the upland owner the right to build-out unto the flats so long as the wharf did not interfere with navigation.(80) In Maine, the courts have held that the littoral owner's rights included the right to erect wharves and piers upon the flats adjacent to his land as long as he did not materially interrupt general navigation.(81) Finally, New Hampshire continued the state's control to the high water mark,(82) yet included among the littoral property rights, the right of the owner "to erect boat houses and to wharf out into the water."(83)

Despite the different views as to the littoral title over the flats, and the public's rights remaining therein, the preferred judicial justification for decisions expanding the right of the littoral owners at the expense of common public trust rights continues to be the limited modification of the common law in response to a particular time-based need. Yet the needs of society have changed drastically. No longer is there a need to encourage private development of large areas of shoreline for navigation and commerce. Transportation and commerce have long relied on roads, rails, and airports in addition to shipping. Today, cargo shipping and maritime transportation take place from a limited and specialized portion of the shoreline. The main purpose for private shoreline development is for recreation in the form of beaches and pleasure-craft docking facilities or for mere aesthetic value.(84) This development of the flats often conflicts with the traditional uses of the shoreline for public trust rights.

III. HOW THE SHORE WENT AWAY

To a significant extent, the issue of what rights remain for the public to use the flats and what property rights were transferred to the littoral owner were best explored in cases involving the landowner's right to wharf out and fill the flats creating new land.(85)

Filled land, land created from the filling of flats, is new land? The common law has long developed a system of classification to distribute the private and public rights over newly created land.(87) The primary basis for the allocation of rights is the way in which the land came into being,(88) A gradual, slow increase in land by the accumulation of silt or sand became part of the adjoining upland estate.(89) The right to the newly created shoreline itself, the strip between the high and low water marks, however, remains with the state.(90) Yet, for private ownership to exist, the land created by filling cannot be a nuisance.(91) New land that resulted from an authorized use of a wharf, such as when an unauthorized wharf caused accretion by silting, would be subject to seizure unless the landowner had a supportable claim of adverse possession.(92) Under the common law, an unsupported claim on new land resulting from a nuisance would have been considered a purpresture making the wharf subject to seizure by the Crown.(93) At common law, only a grant from the Crown would title the new land on the landowner.(94)

In the New England states, whether the filling of fiats or erection of structures was a nuisance and thus subject to the states' seizure, was made dependent on the degree of interference with commercial navigation.(95) The likelihood that an owner who erects a structure on the fiats will be found in nuisance was greatly reduced by the courts' reliance on harbor lines to mark possible interference with navigation in coastal waters.(96) Harbor lines are a legislative declaration of the seaward limit at which a structure jutting out to sea would interfere with navigation.(97) These map-drawn lines parallel the coastline and encouraged building out from the shore since the possibility of being in nuisance was eliminated.(98)

Harbor lines were in great part a response to the Ordinance's encouragement to erect wharves.(99) The encouragement was so successful that it led to the 1835 order from the General Court creating a commission to survey Boston Harbor for the purpose of establishing harbor lines in order to limit private structures from encroaching on the public use of the harbor:(100)
 [B]y 1835 the Legislature perceived a need for regulation of further harbor
 development. It passed a resolution appointing three commissioners to
 survey Boston Harbor and to define "such lines as they shall think
 expedient to establish, beyond which no wharves shall be extended into and
 over the tide waters of the Commonwealth."(101)


The result was the adoption of state statutes establishing harbor lines beyond which wharves would be banned.(102)

Early cases, however, interpreted the establishment of harbor lines as an invitation for the littoral owner to fill the fiats adjacent to his property rather than a limit on the littoral owner.(103) The zest of Americans to fill to create new land was further spurred by the courts' apparent creation of a new property right inherent in littoral ownership, a right to fill.(104) This court created right was not part of the common law rights that descended to the colonists from England.(105) As Professor Rice in a report to the Massachusetts Supreme Court was able to document, there were no English cases dealing with a right to fill the flats unless there had been "an express authorization to fill" establishing that right.(106) Even early Massachusetts cases do not support the proposition that the right to fill existed or arose from the Colonial Ordinance.(107) All that can be said to have existed under the English common law was that a littoral owner could reclaim and fill the fiats only after obtaining express specific permission from the Sovereign.(108) It must also be noted that there is an inherent flaw in the courts' use of harbor lines to delineate the rights of a littoral owner with regard to sub-merged lands or fiats. While the lines may have relevance with regards to the erection of structures that may hamper major commercial and recreational navigation, they have no direct connection with the free exercise of the public trust right of fishery or the right to land and cast off from shore-recognized incidents of fishery and navigation. The original grant to littoral owners was clearly limited to erecting wharves for commerce.(109) Allowing for the building of such wharves, the Ordinance preserved the rights of the public to fishing,

fowling, and navigation. Filling the tidal fiats presents a more serious threat to public rights. Filling destroys the possibility of exercising any right and permanently changes the resource on which these rights depends,(110) Specially troublesome are decisions that hold that the littoral owner may fill, or build upon the fiats to the low water mark and thereafter all public rights are extinguished.(111) In many instances, allowing littoral owner interference with the public use of coastal waters up to a harbor line may deny the use of the most productive fishery while permitting unhindered commercial navigation. The courts' short sight is illustrated in a well known Rhode Island case.(112)

In Engs v. Peckham,(113) the Rhode Island Supreme Court approved a littoral owner's filling the fiats to the Newport harbor line.(114) The filling was permitted despite a neighbor's claim that he was being harmed because of loss wharfage to his property.(115) The court held that the setting of the harbor line was the "equivalent to a legislative declaration that navigation will not be straitened or obstructed by any such filing out," concluding that the harbor line "operates as a license or invitation to the riparian proprietor to fill or wharf out to that line."(116) There is judicial ambivalence, however, on the extent of legislative license. Under the case law, legislatively set harbor lines do not alter property rights.(117) Furthermore, the legislative fiat does not represent a surrender of a state's control over waters and submerged lands within harbor lines,(118) Court interpretations, however, have considered harbor lines as a legislative grant of permission to build to the set limits in some instances and as a tacit acceptance of such encroachment on the publicly owned fiats.(119)

In Engs, the court addressed concerns arising primarily from possible interference with the public's right of free navigation,(120) The court did not explore the impact of the filling of the fiats on the public right of fishery. The harm to fishing, however, may have been significant. Dennis Nixon has explored the relation between fishing and the filling of thousands of acres of Narragansett Bay.(121) He states:
 In 1988, Rhode Island fisherman landed 106 million pounds of fish and
 shellfish. They used powerful vessels, primarily offshore up to 200 miles
 and as far east as Georges Bank off Cape Cod. In 1889, by contrast, Rhode
 Island fisherman landed 128 million pounds of fish and shellfish, all from
 Narragansett Bay and Rhode Island Sound, using fish traps and
 sailboats.(122)


The impact of the destruction by filling of the rich tidelands on fishing is, of course, incapable of precise calculation. However, there is no dispute that healthy, natural tidelands and marshes are essential to fish reproduction and growth.(123)

A further argument against some private "right to fill" is one based on the purpose of the original change in the common law.(124) The grant to the private owner was based on promoting the incidents required for commercial navigation, while a wharf or pier may aid navigation, an unregulated right to fill presents the potential for the creation of semi-permanent obstructions to navigation.(125) The right to erect a structure on the fiats, the right to wharf, should not be misperceived as an absolute property right from which a right to fill developed. Rather, the right to erect particular structures or wharves should be limited by the extent to which such a structure benefits the public from increased commercial navigation.

Additionally, with the diminution of shipping as a smaller commercial fleet handles most of the water-borne commerce from some few large commercial ports,(126) the question arises as to what if any rights to wharf remain for the private shore owner that are justified by the original colonial purposes.

IV. THE FEDERAL CASES

Ultimately, the issue is whether the states have some responsibility as trustees to preserve the resource that is essential to the exercise of public trust rights. Both state and federal courts have visited this question.(127) Simultaneously with the states' interpretation of the public trust doctrine, the Supreme Court explored the special obligation that public trust imposes on the state as trustee.(128) Because of the extraordinary character of the tidal fiats and the interplay with the public trust doctrine, the Court narrowly interpreted grants to private owners that derogated public rights.(129)

In Martin v. Waddell,(130) the Court found against the private exclusive use of an owner even though that use did not reach the level of interference with public rights presented by outright private ownership of public trust tidelands and waters,(131) The Supreme Court sustained the denial of a claim of exclusive right to fish for oysters in Raritan Bay, New Jersey, based on a charter granted in 1664 by Charles II to his brother the Duke of York to colonize the area.(132) The Court rejected the owner's argument that the charter's broad grant could be construed to specifically include the exclusive right to take oysters.(133) The Court explained that the grant of such an exclusive right would require plain language in the original charter and would not be implied in a broad grant.(134) The Court based its decision on the special character of the historic common right of fishing in navigable waters.(135) The decision stated that in the United States, such a grant "must therefore manifestly be tried and determined by different principles from those which apply to grants of the British crown, when the title is held by a single individual in trust for the whole nation."(136)

In Martin, the Court noted that such grants must be read narrowly with a presumption against the passing of public property to a private party.(137) The rule to narrowly construe any grant or franchise of public trust property or rights dates to pre-Revolutionary America: "[I]t will not be presumed that [the crown] intended to part from any portion of the public domain, unless clear and especial words are used to denote it."(138) In addition, such a grant must be construed to include a reservation in favor of the public based on "[t]he laws and institutions of England, [and] the history of the times" among other factors.(139)

The federal analysis continued in Illinois Central Railroad Co. v. Illinois.(140) There, the Court clarified the character of the title that the state has over the tidelands.(141) The Court explained that the state's title carries with it the responsibility to regulate the use of the waters above the submerged soils.(142) This connection between public property and water use is what makes the fiats distinct from other alienable public property.(143) The Court said, "it is ... different in character" and "[i]t is a title held in trust for the people of the State that they may enjoy the navigation of the waters, carry on commerce over them, and have liberty of fishing therein freed from the obstruction or interference of private parties."(144)

In Illinois Central Railroad, the Court recognized that the erection of wharves and other structures were an acceptable private use of such lands if the private use enhanced "[t]he interest of the people in the navigation of the waters and in commerce over" the waters.(145) The Court further noted that grants to private parties to effect such improvements of the public's use of the resource cannot "substantially impair the public interest in the lands and waters remaining."(146) Thus, the ability of the state to grant private rights must directly improve the public's ability to make use of the resource without impairing "substantially" the trust in the natural resource itself.(147) It is only by maintaining the distinction between a grant for the improvement of the public's interest in maritime commerce, and a broad grant of all property rights for a private benefit or a benefit other than improved commerce, that the Ordinance and the common law can be reconciled. Under the Court's analysis, the Ordinance's grant to private owners should be read narrowly to allow the interference with public trust rights only when the resulting benefit from the private use improved marine commerce.(148) Private owners would be allowed to erect structures in the fiats only when they magnify rather than diminish the public's rights or when such structures directly improve maritime commerce.(149) Even then, the caveat prohibiting "substantial" impairment of the trust rights stands as a limit to such grants.

Conversely, if, as some states have done, the Ordinance is accepted as transferring the entire shoreline to private lands without preserving the public trust rights, a breach of the states' trust obligation is inevitable.(150) Such an action would reach the level of unconscionability found in the Illinois Central Railroad transfer of Lake Michigan's waterfront:
 The State can no more abdicate its trust over property in which the whole
 people are interested, like navigable waters and soils under them, so as to
 leave them entirely under the use and control of private parties, except
 ... [as previously provided,] it can abdicate its police powers in the
 administration of government and the preservation of the peace.(151)


By interpreting the scope of the private littoral rights without balancing them against the beneficial requirements of the original grant in the Massachusetts Ordinance, courts in New England have created the possibility for the mass abdication of the states' obligation. Several cases serve to illustrate these states' approval of the complete surrender of sovereign control over the flats.(152)

V. THE RHODE ISLAND CASES(153)

Cases in Rhode Island illustrate that despite the bold claims by the courts on the certainty of how the Ordinance modified the common law, as late as 1982, the three levels of Rhode Island courts could reach different conclusions on the subject. In State v. Ibbison III,(154) the defendant was charged with trespass while walking along the shoreline.(155) At issue was: "To what point does the shore extend on its landward boundary?"(156) A private owner had marked the mean high water mark and informed the defendant, who was engaged in beach cleaning, that the line delineated the owner's private property.(157) The defendant, believing that the proper line was the high water mark as indicated by the debris left by the last tide, proceeded unto the property and was arrested and charged.(158) After noting that the law on the issue was not settled, the state supreme court held that in Rhode Island, title to the fiats between the mean high water mark and the low water mark was with the state.(159) The court proceeded to state that an owner asserting otherwise would have to overcome a very difficult burden.(160) However, this ample protection of the public trust would soon be eroded allowing the potential for the loss of significant portions of the tidelands and the severe contraction of public trust rights.(161)

In Greater Providence Chamber of Commerce v. Rhode Island,(162) the parties sought a declaratory judgment as to the effect of the public trust doctrine on the properties held by the plaintiffs.(163) The land in question resulted from the filling of tidal flats in Narragansett Bay.(164) The properties, on the Providence waterfront, consisted of the Cove Lands, resulting from the filling of the "Great Salt Cove."(165) In addition, the case involved the "Harbor Line" properties.(166) These were also created by filling flats on the Providence River between 1857-1886 and 1907, 1909 and 1941 to the harbor line as defined in 1879 and 1880.(167)

Greater Providence was a response to Hall v. Nascimento.(168) The court explained that Nascimento appears to hold that "all land created by the placing of fill below the mean high tide remains subject to the public-trust doctrine."(169)

The court traces the public trust doctrine's origin back to Roman law,(170) and acknowledged its presence in American jurisprudence(171) as modified by state legislation and history. Rhode Island's version of the public trust doctrine mandates that "lands below the high-water mark will not be appropriated by, or conferred upon, private individuals for purely private benefit."(172) Thus, the issue became whether the state somehow granted its property rights to the private littoral owner.(173)

After vainly exploring whether title to the properties was vested on the plaintiffs by legislative grant,(174) the court stated that "it is safe to assume that such filling would not have been allowed ... without at least the state's tacit approval, if not its express approval."(175) Further, since the claim was based on the state's failure to affirmatively enforce its rights as owner, the holding placed the burden on the state to act affirmatively to avoid giving its "tacit approval" to private filling.(176) Considering the task of monitoring the entire coastline of Rhode Island, the court's holding is an invitation for abuse by littoral owners.

As to the "Cove Lands," the decision does not mention a legislative grant, instead the court explored "whether the public-trust doctrine was extinguished in the Cove Lands by the state's express grant of those lands to the city of Providence in 1870."(177) In the alternative, the court considered whether the private owners obtained title to the public lands even in the absence of express legislative approval.(178) On both queries the court ruled that the present owners held in fee simple.(179)

Greater Providence flew in the face of a history of judicial decisions in Rhode Island holding that legislative enactments were not sufficient to abrogate the rights of the public in the land in trust by the state.(180) Obviously, the filling destroyed the public trust rights of fishing and navigation in these lands.

The court found that the filling has occurred "with the express approval of the state,"(181) or "with the tacit or implied approval of the state."(182) The court also found significant the fact that the land had "been substantially improved upon for many years."(183) These findings were enough to grant fee simple in the owner of the upland.(184)

The court explained that whether "to establish ownership rights in filled tidal lands,"(185) would be decided "on a case-by-case basis according to the facts in each situation."(186) To obtain "title to [the] land that is free and clear,"(187) the upland owner must have acted "with the acquiescence or the express or implied approval of the state."(188) In addition, the land must have been filled "in justifiable reliance" of approval by the state.(189)

The court had the option to hold that the plaintiffs had "`license ... to exclusively occupy' ... and that the public rights in both parcels `are not self-executing, but must await affirmative legislative action in order to be exercised.'"(190) This position would have at least attempted a balance of rights. The court declined the state's invitation, explaining that a license would make newly created lands, "virtually unalienable ... [resulting in] large amounts of valuable private properties [becoming] worthless on the real estate market. For these reasons alone ... the state must fail."(191)

This case is troublesome because the court failed to engage in the balancing that is required to transfer public property from the state to a private owner.(192) The "very difficult" burden that Ibbison III had placed on the littoral owner transmogrified into a burden on the state to demonstrate that it had not given its tacit approval to the private filling of the tide lands.(193) Clearly, the court's reversal was based on the hard facts presented by the case. A decision against the private interests would have caused significant economic dislocation.(194) In Greater Providence, the Rhode Island court equated economic development with "for the benefit of the public."(195) As will be explored later, it is imperative, to protect the remaining resource, that courts engage in a more discriminating analysis when deciding whether a particular public benefit is sufficient to warrant the alienation of public property held in trust.(196)

VI. THE MASSACHUSETTS CASES

Even in Massachusetts, where the original change in the common law of public trust and littoral rights originated,(197) the question of what was granted and what was received in the Colonial Ordinance is far from resolved. Wellfleet v. Glaze(198) involved a conflict between rights granted to the littoral owner under the Ordinance of 1641-1647 and those reserved to the public.(199) The defendant moored several boats on flats adjoining his property.(200) The town of Wellfleet had previously issued a license to another private party to engage in aquaculture on the same flats where the littoral owner moored his boats.(201) The mooring of the boats was calculated to destroy the aquaculture equipment at low tide when the boats settled on the flats.(202)

The decision starts out by recognizing the respective rights of the parties: "Under the Colonial Ordinance, in order to encourage construction of private wharves, littoral owners were granted title to the shore as far as mean low tide mark or one hundred rods from the mean high tide mark, whichever is less."(203) The general public, according to the court, reserved the rights "to free fishing, fowling, and navigation."(204) The court, however, does not dwell on the original reason for the grant in the Colonial Ordinance expanding the littoral owners' property rights to the low water mark. That analysis would have given the court at least a historical basis for the accommodation of conflicting rights in this case. Instead, the court engaged in a listing of cases interpreting the rights of the owner and general public, even though none of the cases specifically addressed the right to engage in aquaculture over the flats.(205) The result is a list of limits that contradict themselves rather than an analysis based on how the parties' uses of the fats relates to the original purpose for altering the common law. The court also fails to explore whether the alteration of the common law is still viable in light of current societal needs. Instead, the court repeats statements such as the "owner may exclude others by building on flats"(206) together with the statement that an "owner's right to build wharf [is] subject to reasonable regulation by [the] Legislature."(207)

Judge O'Connor, in a concurring opinion, focuses on the definition of the rights preserved under the public trust doctrine.(208) He notes that the early cases did not define the rights granted or reserved beyond a statement that: "[t]he public has reserved only the rights of fishing, fowling, and navigation, and any `natural derivative' thereof.'"(209) Without explaining the basis for his statement, the judge concludes that "[a]quaculture is not fishing, nor can it legitimately be considered a `natural derivative' of the right to fish."(210) Thus, the reserved and granted rights are illuminated solely by the judge's conclusory statement as to what is a legitimate or reasonable "natural derivative" of the original rights.(211) What is lacking in the court's approach is an exploration of whether the modern uses of the flats for aquaculture is or is not a descendant of the original rights to fish and navigate. The court's analysis evinced a rather formalistic and literal view of public trust rights and how they have evolved through the years. Conversely, Justice O'Connor is willing to expansively read the property owner's rights to include the right to "`build on his tidal land so as to exclude [the] public completely as long as he does not unreasonably interfere with navigation.'"(212) If the public trust doctrine is flexible enough to include the use of pleasure water crafts as a modern form of navigation, then piscatory, the art of taking fish from the ocean,(213) would seem to be broad enough to encompass aquaculture, an ancient form of producing fish.

The court concluded that the town was not entitled to an injunction to force the owner to remove his three boats from the flats.(214) Ultimately, the ruling, based on procedural grounds, did not have to resolve the conflict in rights to deny the granting of injunctive relief.(215)

VII. THE CORRUPTION OF THE ORDINANCE

In Pazolt v. Director of the Division of Marine Fisheries,(216) the Massachusetts Supreme Court addressed a broader version of the issue raised in Wellfleet.(217) Again, Pazolt involved tensions resulting from a littoral owner's assertion of title over the flats and the public's use of those flats for fish farming and aquaculture.(218) The court noted the economic importance of the use of the littoral flats as a beach for seasonal tourism at the owner's motel.(219) The court presented the issue as whether "aquaculture is an activity protected by the Colonial Ordinance of 1641-1647."(220) Although the rights of the littoral owner with respect to fishery and navigation are subordinate to the public rights, the court resolved that erecting on the flats the equipment necessary for aquaculture was not protected by the rights preserved in the public trust.(221) Concluding again that aquaculture is not fishing nor is it reasonably related to fishing,(222) the court quotes Justice O'Connor from Wellfleet: "[a]quaculture is not fishing, nor can it legitimately be considered a `natural derivative' of the right to fish."(223) The court's analysis focused on defining the scope of the public's rights under the Ordinance.(224) The court did not explore whether there were any benefits derived by the public from the owner's use that would advance transportation or commerce, the original purpose for the limited grant to the littoral owners.(225) Also left unexplored was whether the benefit derived by the public from the private use was sufficient to warrant the destruction of historic rights.

If one revisits the history of the Ordinance's limitation on sovereign rights over the flats, the irony of these two decisions is glaring. In the Ordinance, title over the flats was ceded by the sovereign to private littoral owners for a specific purpose, to improve transportation and marine based commerce through the erection of wharves and other structures on the flats.(226) The amendment to the public trust doctrine embodied in the Colonial Ordinance significantly expanded private rights over precious natural resources at the expense of public rights.(227) It is axiomatic, even in the absence of the bargain embodied in the Ordinance, that such a grant of public property rights must be supported by a concomitant public benefit resulting from the private use to permit the derogation of public resources. As the Supreme Court explained in Illinois Central Railroad Co., the burden on the private owner is much greater in the case of the alienation of rights over tidal flats and submerged lands in particular.(228) The reason for the strict construction is the obligation on the state as trustee to protect the limited resource on which the exercise of public rights depends.(229) The Massachusetts Supreme Judicial Court, however, turned that logic on its head, by holding that a private recreational use that economically benefits a private owner, defeats the public use of the flats for aquaculture purposes, an endeavor with roots to colonial time that is supplanting traditional fishing and is seen as a possible answer to the depletion of the fishing resource.(230) The court never explained how recreational swimming and sunbathing by seasonal tourists are better related than aquaculture to the original purposes of the grant. Only by viewing the grant as an expansion of property rights unconnected to any public obligation can the court's reasoning be made to fit the history of the common law.

VIII. PUBLIC TRUST PROPERTY, THE TRUSTEESHIP, AND PUBLIC BENEFIT

As noted, a key issue when conveying public trust property to a private owner involves the proper basis for such a transfer.(231) Traditionally, through common law, statutory enactments, or through limitations on the legislatures imposed by state constitutions, a state's power to alienate public property has been limited by requiring that such transfers result in a benefit of the public.(232) This axiom of general application must be redefined when evaluating the grant of some public property. In particular, the analysis of the benefit received must be different in the instances involving a grant of public property that is imbued with public trust rights. The rights reserved by the public under the public trust doctrine must be exercised on the shore, over tidelands, and on the underwater lands of the state. For purposes of this Article, such property is referred to as public trust property. The alienation of the public trust property results in a loss to the public that is different from the loss of other public property. In these cases of public trust tidelands, the definition of "public benefit" adopted by the courts is at best ill-fitting.(233) At worst, based on a lack of understanding of the underlying issues, the courts' current approach could destroy a common law right that predates the birth of England. Public trust property is a limited natural resource under siege. The loss of coastline open to public access is well documented.(234) The scarcity of this public resource is especially evident in the northeast states.(235) Accordingly, if public trust rights are to be preserved, it is necessary to restrict the states' power to convey the remaining public resource to private parties or to allow private uses that are inconsistent with the exercise of the doctrinal rights.

Assuming agreement that access to the shore should not be limited to the wealthy few, either the shore must remain in public hands, or its private ownership must be burdened with significant public easements. The erosion of public rights is the result of innumerable judicial decisions confirming greater and greater rights on the littoral and riparian owners together with a failure by legislatures to act to protect the resource. As argued before, this derogation of public rights has been carried out in the name of a change in the common law that was meant to be for a limited purpose and limited time of need. It would seem appropriate for the courts to use the jurisprudential tool of common law to correct the prior case law.

In Prah v. Maretti,(236) the Wisconsin Supreme Court was confronted with an analogous situation involving the American rejection of the English doctrine of "`ancient lights.'"(237) The case held against the law as it had existed since the formation of the state and reinstated an American form of the "`ancient lights'" doctrine.(238) The court carefully reviewed the policy rational for rejecting the English doctrine and decided that the policy reasons are "no longer fully accepted or applicable."(239) Instead, the court proceeded to explore modern policy reasons for recreating a form of the public trust doctrine and concluded that a cause of action equivalent to ancient lights existed under Wisconsin's common law.(240) The opinion states that "[c]ourts should not implement obsolete policies that have lost their vigor over the course of the years."(241) Wisconsin's exhortation would seem particularly appropriate in the case of littoral rights that were changed in the Colonial Ordinance and the law that developed from it. Yet, such a change would be radical legal surgery. Accepting the needed reformation may be made less painful if a different flame of reference is provided to start the analysis. The rights protected by the public trust policy have been deemed worthy of protection for over 1200 years in the several nation states that form our heritage. Also, as this Article has demonstrated, the courts' reliance on the Colonial Ordinance is misplaced, or out of date, in light of societal developments. As noted by the Supreme Court of Massachusetts:
 At [the time that the rights to wharf out were granted] it was probably
 inconceivable to the men who sat in the Legislature ... that the harbor
 would ever cease to be much used for commercial shipping, or that a wharf
 might be more profitable as a foundation for private condominiums and
 pleasure boats than as a facility serving public needs of commerce and
 trade. They did not speculate on what should become of the land granted to
 private proprietors to further development of maritime commerce if that
 very commerce should cease, because they did not envision it.(242)


It might be tempting for the courts to leave the protection of the coastline to the different state legislatures. Reliance on the legislature, however, requires a total disregard for the pernicious effect of self-interest on law-making. Enough law and economics scholars, using the theory of public choice, have explained and documented the effects of discreet, well organized, powerful minorities on legislation.(243)
 The [Public Choice] theory holds that a small, discreet group affected
 either negatively or beneficially is more likely to respond politically to
 further its interests. Such groups will find it worthwhile to incur the
 costs of lobbying and organizing votes, and will therefore have an impact
 on the legislative process disproportionate to their size.(244)


The theory also holds that the animus of the general public to engage in the defense of their interests is weakened by several factors, including: the greater transactional costs involved in organizing a large widely disperse and diverse group;(245) the expectation of some of the members of the large group that others will act to protect common interests relieving them of the responsibility to act on their own behalf;(246) and the fact that the expected benefit or detriment will be diluted so as to minimally impact individual members.(247)

The coastline is under tremendous development pressure with seventy-five percent of the population predicted to move to within fifty miles of the shores by the year 2000.(248) This makes for a precious commodity that is in short supply. This market attracts powerful economic forces. Public choice predicts that such forces would have an impact on the legislatures which is disproportionate to their numbers,(249) making the regulation of public trust property particularly susceptible to the deficiencies of a market-based legislative system. In the case of public trust property, all the factors advocate for a legislative abandonment of the public interest to satisfy pro-development forces. The history of the consumption of this natural resource evinces just that lack of regulatory protection.(250) The situation may have reached the point of legislative failure, that moment when the legislative result "diminish[es] rather than increase[s the] citizens' average level of well-being."(251) The folly of relying on a legislative solution is evident in the fact that despite cries of overregulation, the numbers tell a tale of increased and constant development of what was once open space.(252) At the very least, history belies the logic of placing our trust in the legislature.

The best legal tool might well be the return to the common law. The protection of the public's historical rights and the protection of this natural resource are inextricably tied, allowing courts to use the common law to correct the failure of our more democratic institutions.(253) It is the courts that must wield the common law standard to reclaim ancestral rights from greed and poor planning. The need to change the common law to reflect changing societal needs, whether to revert to an earlier version of Public Trust, or whether to modify the present doctrine, is illustrated by Lawrence Friedman's statement that "[s]ociety in change may be slow, but it is ruthless. Neither evolution nor revolution is sentimental. Old rules of law and old legal institutions stay alive when they still have a purpose, or at least, when they do not interfere with the demands of current life."(254) The rub is determining whether the modification of the public trust doctrine to permit private wharfing out unto the flats or private ownership to the low-water mark still serves a societal need or, rather, interferes with "the demands of current life."(255) "[A]t some point, there is a need for courts to act on behalf of the majority or public interest to `correct' for `legislative failure....'"(256)

As the above discussion demonstrates, the colonial exception to the English common law resulted in a line of reasoning that ultimately permits the alienation of public trust property to private owners without producing a comparable public benefit, a result at odds with the spirit of the Colonial Ordinance and the role of the state as trustee.(257) This concern is not new; from the earliest days, the ability to wharf out for maritime purposes was converted into a right to create desirable property by filling the flats.(258) The Massachusetts court has noted that as early as 1850 there was "concern with encroachment upon the harbor, as wharf property became very valuable, and great portions of the harbor were reclaimed as filled land. Investors who speculated in harbor property pressured the Legislature to grant away the Commonwealth's fats to private owners."(259) This changed perception of the value of tidal land fueled a push to develop the flats at a threatening rate.(260) The desirability of harbor property created from the filling of the Boston Harbor encouraged unrestrained investor speculation as the value soared.(261) Then, as now, the development pressure was focused on obtaining complete private ownership of the flats from the legislature.(262) This combination of powerful developmental pressure, coupled with legislative self-interest, made the legislative regulation of public trust property an area ripe for legislative failure. The situation is made even more troublesome by the historical inability of the legislature to resist development forces at the shoreline. By 1980, the littoral ownership figures are cause for alarm. If, as the court did in Rhode Island, this level of private littoral ownership is coupled with a right to wharf and fill to the harbor lines,(263) or to limit lateral access as Massachusetts has done, the potential loss of public trust property is incompatible with the survival of public trust rights.(264)

Of course, the right to use, even to fill to the low water mark or harbor lines does not constitute in itself a grant of complete title of the flats to the littoral owner. As the court explained in Boston Waterfront Development Corp. v. Commonwealth,(265) "[h]aving the right to build a wharf over tidal land does not necessarily mean having title to that land."(266) The Massachusetts court, in addition to making any private ownership of the flats subject to an express grant, explained that the legislature's own power to alienate the flats was limited.(267) Citing to Illinois Central Railroad, the court restated the proposition that public trust property can only be alienated to fulfill a particular public purpose.(268) The protection of the property in trust derives from the common law requirement that such property be used for
 the enjoyment and advantage of which are open to the public on equal
 terms.... [O]nly a relatively small portion of the inhabitants may
 participate in the benefits, but the use or service must be of such nature
 that in essence it affects them as a community and not merely as
 individuals.(269)


The problem with the Illinois Central Railroad test is that it promises more than it delivers. The courts have given too broad an interpretation to the public benefit that is sufficient to support the alienation of public trust property.

As documented, the courts over the years have reduced the required public benefit to the point that almost any commercial endeavor, or private owner's personal use, is enough to justify the extinguishment of public trust rights.(270) Indeed, the courts have construed the setting of harbor lines as invitations to the owner to fill to the lines.(271) By reintroducing a requirement for a significant public benefit prior to allowing the filling, or the enclosure of flats, the resource and the rights of the state as trustee can be safeguarded. As a measure of the kinds of public benefits that would justify the loss of public trust rights, we may look to the past. It is probably impossible for us to imagine what the private construction of wharves and piers meant to the colonists. At that time, available land transportation was insignificant or non-existent, or was too perilous.(272) Maritime traffic was the umbilical cord among the colonies and to Europe and civilization.(273) The erection of the private wharves made commercial and social intercourse possible for the first settlers.(274) In light of the original measure of benefit derived, it is ironic that courts have so reduced the required public benefit.

IX. CENTRAL VERMONT RAILWAY AND A MODIFIED STRICT SCRUTINY TEST

In State v. Central Vermont Railway, Inc.,(275) the Vermont Supreme Court set out its role to mold and extend the common law public trust doctrine "to meet changing conditions and needs of the public it was created to benefit."(276) The complaint by the state sought a declaratory judgment that public trust lands granted to the railroad could not be transferred to developers for purposes that diminished public trust rights.(277) At issue was a strip of land that had been created by the railroad's filling of the shoreline of Lake Champlain.(278) The railroad had filled that land under an 1827 Vermont statute(279) that allowed the littoral owner to fill and erect wharves along tidal or lake shoreline.(280) Like the Massachusetts' Ordinance, the intent of the legislative grant was to "increase commerce and trade without an expenditure of public funds."(281) The 1827 law apparently granted fee simple absolute title giving the littoral owners and "their heirs and assigns, the exclusive privilege of the use, benefit, and control of the wharves forever."(282)

Relying on the flexibility inherent in the public trust doctrine,(283) the court provided protection for the historical rights, yet gave the state the flexibility to grant public property to private owners when it truly benefits the public.(284) The opinion states: "`[h]istorically, no developed western civilization has recognized absolute rights of private ownership in [public trust] land as a means of allocating this scarce and precious resource among the competing public demands."(285)

The Vermont court rejected arguments that the statutory grant to a private owner could completely extinguish the jus publicum.(286) Relying on Illinois Central Railroad, the court reiterated that the obligation of the state as trustee cannot be evaded by legislative grant.(287)

Of supreme importance to the court was the "undiminished vitality" of the public trust doctrine despite its "antediluvian nature."(288) Ultimately, the court established that the title of an owner that fills under statute is "impressed with the public trust doctrine [requiring that].... such land is used for a public purpose."(289) Thus, the protection of the trust resource was dependent on the definition of "public benefit."(290) The court in Vermont did not decide what particular private purposes would support a legislative grant of public trust property. However, the court corrected the trial court's assertion that a public purpose could be read broadly to include restaurants, hotels, and shopping malls.(291) At this point, it would have been helpful if the supreme court would have proceeded to set some standards for determining the level of public benefit that would suffice. Rather, the court passed the issue to the legislature, by requiring that each future private grant and its purpose be pre-approved by the legislature in its role as trustee for the public.(292)

This approach, leaving the definition of public purpose to the legislature in each instance, is fraught with the dangers noted earlier in the discussion.(293) Yet, there is some protection for the public in the media exposure that would accompany each attempt at alienating public trust property. Greater protection from legislative failure is possible if the court in its role of judicial review applies a stringent test to protect the resource.(294)

Public property has many forms and depending on the particular type of property, its alienation will have a different impact on the public. The alienation of public property, either by legislative grant or court edict, is appropriate only when the grant is supported by a resulting public benefit. The shoreline and tidal flats are atypical public property.(295) They have long been recognized as a limited resource of exceptional value.(296) Other properties held by the state such as buildings or parks, while still valuable, are not in the same category as threatened resources.(297) Accordingly, it must be possible to differentiate between the various types of property that the state holds in trust, in terms of the public benefit that should be derived from their alienation to a private owner for a private purpose or use.

This Article offers that a judicial test, similar to the strict scrutiny test, can be developed to decide when a particular private purpose advances the public interest sufficiently to allow for some derogation of public trust rights or the alienation of some of the resource.(298) When the court is satisfied that a grant is necessary to advance a compelling public purpose, a grant in fee simple subject to condition subsequent would be sanctioned. In this manner, the public would retain control over the resource unless a compelling public benefit was derived from the private use. A fee simple grant subject to condition subsequent, would insure that a failure by the private owner to deliver the expected benefit or attempt to change the use without the state's authority, would return to the public trust. Finally, as was stated in the Vermont case, the resulting grant would still be "impressed with the public trust doctrine."(299)

X. CONCLUSION

By common law application of the proposed test, the judicial decisions could begin to reverse a legal trend that threatens long held historical rights. Even in states that have already granted the fee to the littoral owner,(300) the test would act as a brake on the destruction of public trust rights by actions that exclude the public completely. Such exclusive private use would have to survive demanding scrutiny to show that the need for the private use is compelling, and that the public use cannot coexist with the private use. Even then, the grant of fight to interfere with the public trust rights would exist subject to a condition subsequent that the private use produce the expected public benefit. The test affords both the flexibility necessary for legislative accommodations, and the assurance that the courts would continue as guardians of these "antediluvian" rights.(301)

(1) See DONNA R. CHRISTIE, COASTAL AND OCEAN MANAGEMENT LAW IN A NUTSHELL 11-12 (1994) (discussing how tides and the moon begin the discussion of tidelands and submerged lands).

(2) See David C. Slade et al., Origins, History and Importance of the Public Trust Doctrine, in PUTTING THE PUBLIC TRUST DOCTRINE TO WORK 1 (David C. Slade et al. eds., 1990) (summarizing the public trust doctrine).

(3) See Tracey Dickman Zobenica, Note, The Public Trust Doctrine in Arizona's Streambeds, 38 ARIZ. L. REV. 1053, 1056 (1996) (describing the public trust doctrine).

(4) See Slade, supra note 2, at 4-5 (noting the origins of the public trust doctrine).

(5) See id.

(6) See infra notes 46-71 and accompanying text (discussing the Massachusetts Ordinance's departure from the common law by allowing private owners to have certain rights independent of a grant from the Sovereign).

(7) See infra notes 54-59 and accompanying text (discussing the various benefits realized by the execution of the Massachusetts Ordinance).

(8) See infra notes 61-62 and accompanying text (describing the types of rights privatized by the implementation of the Massachusetts Ordinance).

(9) See infra notes 63-71 and accompanying text (explaining that although additional rights have been given to private owners, the grants of title were still restricted by the Sovereign in various ways).

(10) See Catherine Robinson Hall, Dockominiums: In Conflict with the Public Trust Doctrine, 24 SUFFOLK U. L. REV. 331, 336 (1990).

(11) See Michelle A. Ruberto & Kathleen A. Ryan, The Public Trust Doctrine and Legislative Regulation in Rhode Island: A Legal Framework Providing Greater Access to Coastal Resources in the Ocean State, 24 SUFFOLK U. L. REV. 353, 369 & n.84, 370-74 (1990) (describing the equal footing doctrine and the origins of the legislature's power to control the flats).

(12) See infra notes 72-84 and accompanying text (discussing the various versions of the public trust doctrine in different northeastern states).

(13) See infra notes 85-126 and accompanying text (discussing changes in the public trust doctrine analysis among different states).

(14) See infra notes 231-74 and accompanying text (discussing public trust property, trusteeship, and public benefit).

(15) See infra notes 77-84 and accompanying text (discussing changes in the public trust doctrine analysis among the states).

(16) See infra notes 154-89 and accompanying text (discussing private ownership of filled tidal lands).

(17) See infra notes 219-38 and accompanying text (discussing the competing claims of tourism and aquaculture).

(18) See infra note 84 and accompanying text (noting that the needs of society have changed since colonial times).

(19) See infra notes 103-26 and accompanying text (explaining that the courts' interpretations of traditional principles have extinguished public rights).

(20) See infra notes 117-19 and accompanying text (discussing case law interpretation of legislative license and its impact on property rights).

(21) See Hall, supra note 10, at 331 (discussing the increased demand for shoreline housing and boating access).

(22) See id. (noting that an estimated "69.3 million people use 14.3 million boats for recreation in the United States" (footnote omitted)).

(23) See infra notes 253-64 and accompanying text (suggesting that the courts reevaluate the common law to determine an appropriate compromise between private ownership and public use).

(24) See Slade, supra note 2, at 4-5 (noting the origins of the public trust doctrine).

(25) See JOHN M. GOULD, A TREATISE ON THE LAW OF WATERS [sections] 20, at 41-42 (2d ed. 1891) (citing to Bacon, Hale, and Hargrave's law tracts, among others and noting that public rights to navigation and fishing are as established as those of the Crown).

(26) See Slade, supra note 2, at 4-5.

(27) See THE INSTITUTES OF JUSTINIAN 168-69 (Thomas Collett Sandars ed. & trans., 4th ed. 1869).

(28) See id. at 169; see also Boston Waterfront Dev. Corp. v. Commonwealth, 393 N.E.2d 356, 358 (Mass. 1979).
 Throughout history, the shores of the sea have been recognized as a special
 form of property of unusual value; and therefore subject to different legal
 rules from those which apply to inland property. At Roman law, all citizens
 held and had access to the seashore as a resource in common.... With the
 collapse of the Roman Empire and its ordered system of law, public
 ownership of tidal areas gave way to a chaos of private fiefdoms. Under the
 English feudal law which emerged, ownership of the shore was claimed by the
 Crown, which in turn had the power to grant out portions of its domain to
 the exclusive ownership and use of the private subjects who in fact
 possessed it....

 The conflict between king and citizens that preceded the Magna Charta
 concerned, among other things, opposition to this absolute power of the
 Crown to grant private rights in the shore, particularly as these rights
 interfered with the free navigation which was so essential to the rising
 commercial classes. After Magna Charta, the competing interests were
 accommodated by a legal theory that divided the Crown's rights to shore
 land below high water mark into two categories: a proprietary jus privatum,
 or ownership interest, and a governmental jus publicum, by which the king
 held the land in his sovereign capacity as a representative of all the
 people. This latter interest the Crown could not convey into private hands,
 since it was "held as a public trust for all subjects and their free
 exercise of the common rights of navigation and fishery...."


Boston Waterfront Dev. Corp., 393 N.E.2d at 358 (citations omitted).

(29) See MAGNA CARTA ch. 13. (1215), reprinted in J.C. HOLT, MAGNA CARTA app. at 455 (2d ed. 1992) (limiting the private rights to ownership of the shore); Martin v. Waddell, 41 U.S. (16 Pet.) 367, 389 (1842) (tracing the history of the right to common fishery).

(30) See Lloyd R. Cohen, The Public Trust Doctrine: An Economic Perspective, 29 CAL. W. L. REV. 239, 240 (1992) (outlining the public trust doctrine from the perspective of the past, present and future).

(31) GOULD, supra note 25, [sections] 5, at 17.

(32) Id. [sections] 18, at 39; see Martin, 41 U.S. (16 Pet.) at 410 (noting that the Magna Carta revoked any right the king once had to grant rights to navigable waters); Weston v. Sampson, 62 Mass. (8 Cush.) 3.47, 352 (1851) (noting that a right of fishing could not be granted by the king under the Magna Carta); Commonwealth v. Alger, 61 Mass. (7 Cush.) 53, 89-94 (1851) (explaining that the rights of the king governing the sea gave way to the colonial government and became vested in the commonwealth); Barker v. Bates, 30 Mass. (13 Pick.) 255, 259 (1832) (noting the difference between a conveyance to an individual and a conveyance to a large company for the benefit of society as a whole); Commonwealth v. Charlestown, 18 Mass. 179, 183, 1 Pick. 180, 183-84 (1822) (explaining that the shore belonged to the Sovereign who held it for the common use of all subjects); Storer v. Freeman, 6 Mass. 435, 437, 5 Tyng 435, 438 (1810) (explaining that if an individual owned land with a boundary on the sea, he could not own rights to the water past the low water mark).

(33) See Alger, 61 Mass (7 Cush.) at 90.

(34) Id. at 53.

(35) Id. at 90. Both titles rested with the Crown, however, the king could only convey the jus privatum. See Concord Mfg. Co. v. Robertson, 25 A. 718, 721 (N.H. 1890) (explaining that the king could convey lands on the banks of rivers for settlement purposes, but that the right to the ocean shore belonged to the general public); see also United States v. 1.58 Acres of Land Situated in Boston, 523 F. Supp. 120, 123 (D. Mass. 1981).
 Historically, no developed western civilization has recognized absolute
 rights of private ownership ... [of land between high and low water marks]
 as a means of allocating this scarce and precious resource among the
 competing public demands. Though private ownership was permitted in the
 Dark Ages, neither Roman Law nor the English common law as it developed
 after the signing of the Magna Charta would permit it.


Id. at 123 (citation omitted).

(36) See GOULD, supra note 25, [sections] 17, at 35-36 ("[T]he jus publicum ... is similar to the jurisdiction over public highways by land ... [and] the jus privatum.... cannot be used by the Crown or conveyed to a subject discharged of this public trust, or so as to justify any interference with the public rights of navigation and fishery." (third emphasis added)).

(37) See MAGNA CARTA ch. 23 (1215), reprinted in J.C. HOLT, MAGNA CARTA app. at 457 (2d ed. 1992); see also Moulton v. Libbey, 37 Me. 472, 485 (1854) (noting that people have the right to fish, which may not be restrained unless that right interferes with navigable rivers); Post v. Munn, 1 N.J.L. 67, 69 (1818) ("[T]he right of navigation in this river is superior to all other rights, and particularly to the right of fishery."); Flanagan v. City of Philadelphia, 42 Pa. 219, 228 (1862) ("There is no natural right of the citizen ... which is paramount to his right to navigate freely...."); Mayor of Colchester v. Brooke, 115 Eng. Rep. 518, 531 (1845) (noting that a navigable river is equivalent to that of a highway which everyone has the right to enjoy); King v. Clark, 88 Eng. Rep. 1558, 1558 (1701) ("[T]o hinder the course of a navigable river is against Magna Charta."); Carol Rose, The Comedy of the Commons: Custom, Commerce, and Inherently Public Property, 53 U. CHI. L. REV. 711, 745 (1986) (noting the distinction between navigation and fishing at common law).

(38) See, e.g., Brooke, 115 Eng. Rep. at 531 (noting that the right to navigate includes all rights necessary to the passage of vessels).

(39) See Gann v. Free Fishers of Whitstable, 11 Eng. Rep. 1305, 1317 (1865) (holding that "unless some good consideration can be shown" for the imposition of a toll for anchorage within certain districts, it will not be upheld); Brooke, 115 Eng. Rep. at 531 (noting that the protection of the rights to fish and navigate include "all such rights upon the water way as ... are necessary for the full and convenient passage of vessels and boats along the channel").

(40) See Bell v. Town of Wells, 557 A. 2d. 168, 173 (Me. 1989) (discussing the liberal interpretation of fishing and navigation and the activities that can be described as such); see also Borough of Neptune City v. Borough of Avon-by-the-Sea, 294 A.2d 47, 54 (N.J. 1972) (noting that "in this latter half of the twentieth century, the public rights in tidal lands are not limited to the ancient prerogatives of navigation and fishing, but extend as well to recreational uses, including bathing, swimming and other shore activities").

(41) See Bohn v. Albertson, 238 P.2d 128, 136 (Cal. Dist. Ct. App. 1951) (quoting Munninghoff v. Wisconsin Conservation Comm'n, 38 N.W.2d. 712, 715-16 (Wis. 1949)).

(42) See Proctor v. Wells, 103 Mass. 216, 218 (1869) (denying a claim for trespass arising from the defendant's digging for shellfish).

(43) See Weston v. Sampson, 62 Mass. (8 Cush.) 347, 355 (1851) (finding no difference between shell-fishing and fishing with respect to public rights).

(44) The relevant date when dealing with flats is 1647. See Forest River Lead Co. v. City of Salem, 42 N.E. 802, 802 (Mass. 1896) (explaining that part of the Ordinance discussing flats was not part of the original body of liberties of 1641 but was an addition in 1647); see also GOULD, supra note 25, [sections] 166, at 332 & n.5 (citing various cases dealing with ownership of littoral land form by change in a river's course, violent weather or floods).

(45) For the American adoption of the English version of the doctrine see Adams v. Pease, 2 Conn. 481, 483 (1818) (Swift, C.J.) (citing common law and recommending its adoption); Lay v. King, 5 Day 72, 76 (Conn. 1811) (stating that "the right of fishery ... is free and common to all the citizens of the state"); Berry v. Carle, 3 Me. 248, 251 (1825) (Weston, J.) (finding rivers to be public and for the use of all citizens); Commonwealth v. Charlestown, 18 Mass. 179, 183, 1 Pick 180, 183-84 (1822) (noting the Ordinances' connection to the common law); Scott v. Willson, 3 N.H. 321, 326-28 (1825) (discussing the effect of waterway privileges on the several states); Arnold v. Mundy, 6 N.J.L. 1, 15-16 (1821) (tracing the public trust doctrine's history from Charles II); see also People v. Platt, 17 Johns. 195, 212-13 (N.Y. 1819) (applying the public trust doctrine to New York common law); JAMES KENT, 3 COMMENTARIES ON AMERICAN LAW 415-17 (William M. Lacy ed., new and thoroughly rev. ed. 1889) (discussing the passing of the chain of title to New Jersey waters).

(46) See Storer v. Freeman, 6 Mass. 435, 437, 5 Tyng 435, 438-39 (1810) (noting the modification of common law).

(47) Commonwealth v. Alger, 61 Mass. (7 Cush.) 53, 67-68 (1851).

(48) See In re Opinion of the Justices, 313 N.E.2d 561, 565 (Mass. 1974) (noting that the Colonial Ordinance of 1641-1647, "took the extraordinary step of extending private titles to encompass land as far as mean low water line or 100 rods from the mean high water line").

(49) See Alger, 61 Mass. (7 Cush.) at 70-72 (finding that "riparian proprietors had a fee in the flats adjoining their land"); Storer, 6 Mass. at 437, 5 Tyng at 439 (stating that the owner could sell his land with or without the flats, thus implying he has title to them); Austin v. Carter, 1 Mass. 230, 230-31, 1 Will. 231, 231-232 (1804) (holding that the land to the low-water mark belonged to the owner of the adjoining land).

(50) See Hamlin v. Pairpoint Mfg. Co., 6 N.E. 531, 533 (Mass. 1886) (noting that legislative acts granted owners of lots "an interest in the soil between their lots and the channel of the river ... gave them possessory title ... sufficient to enable them to maintain trespass if their rights are invaded"). In Massachusetts the title extended to the low tide mark. See Gray v. Bartlett, 37 Mass. (20 Pick.) 186, 189 (1838) (holding that extending a wharf to below the low water mark could be considered an injury to the landowner); Boston and Roxbury Mill Corp. v. Newman, 29 Mass. 467, 482, 12 Pick. 467, 482 (1832) ("The owner cannot ... counteract the effect of the grant, by filling up his land.... Before the legislative grant, the defendant might have filled up his flats ground to a certain extent, not interfering with the rights of others. After the grant, he could not lawfully do it.").

(51) See GOULD, supra note 25, [sections] 20, at 42 (noting that its "private right [of ownership] is burdened with a trust or charge in favor of the public").

(52) See Shively v. Bowlby, 152 U.S. 1, 18-25 (1894) (providing a state by state overview of littoral land owners' rights over the abutting flats and the history of the colonial approach).

(53) Commonwealth v. Charlestown, 18 Mass. 179, 182-83, 1 Pick. 180, 182-83 (1865).

(54) See Storer, 6 Mass. at 437, 5 Tyng at 438 (noting the modification of the common law).

(55) See, e.g., Charlestown, 18 Mass. at 186, 1 Pick. at 186 (noting that if streams were large enough to pass through, "no one can obstruct them, even in his own grounds, unless he has acquired a right by prescription; which probably is the case with many of them" (footnote omitted)).

(56) See id. at 183 (stating that the government transfers rights in the property to prevent disputes and litigation).

(57) See Weston v. Sampson, 62 Mass. (8 Cush.) 347, 352-54 (1851) ("[T]he riparian proprietor has an interest in the soil, it is not an absolute and unqualified ownership; but so long as flats ... are left open, unoccupied by any wharf, dock ... they so far retain their original character and remain public."); see also Shively, 152 U.S. at 18-19 (discussing the view of several colonies that it was beneficial for navigation and commerce if landowners erected wharves); In re Opinion of the Justices, 313 N.E.2d 561, 565 (Mass. 1974) (noting that colonial authorities extend the titles to land to include land "100 rods from the mean high line" to encourage wharf construction); Charlestown, 18 Mass. at 183, 1 Pick. at 183 (stating that the government encouraged the objectives of wharves, quays and piers); Storer, 6 Mass. at 437, 5 Tyng at 438 (discussing wharfing's connection to the commercial needs of the new colony and explaining how the common law was changed to encourage the private building of wharves for sea-based commerce giving limited fee to the littoral owner over the flats to low-water mark).

(58) Storer, 6 Mass. at 437, 5 Tyng at 438.

(59) Commonwealth v. Alger, 61 Mass. (7 Cush.) 53, 77 (1851).

(60) See Storer, 6 Mass. at 438, 5 Tyng at 438.

This ordinance was annulled with the charter by the authority of which it was made; but, from that time to the present, a usage has prevailed, which now has force as our common law, that the owner of lands bounded on the sea or salt water shall hold to low water mark, so that he does not hold more than one hundred rods below high water mark; but the rights of others to convenient ways are saved, agreeably to a provision in the ordinance. Id.

(61) See supra note 57 (listing cases that discuss the need to encourage private wharf building to benefit commerce and navigation).

(62) See Sharon M. P. Nicholls, Note, Public Right of Passage Along the Massachusetts Coast: An Argument for Implementation Without Compensation, 4 B.U. PUB. INT. L.J. 113, 116-17 (1994) (noting that Massachusetts cases after Commonwealth v. Alger have interpreted ownership rights in littoral land to be subject only to public benefit).

(63) Alger, 61 Mass. (7 Cush.) at 65 (emphasis added).

(64) 80 N.E. 688 (Mass. 1907).

(65) Id. at 688.

(66) See Nicholls, supra note 62, at 116 (citing Alger as the leading case interpreting the Ordinance to import proprietary title to land owners).

(67) In re Opinion of the Justices, 313 N.E.2d 561, 566 (Mass. 1974) (discussing cases and reviewing interpretation of the Ordinance).

(68) See Barry v. Grela, 361 N.E.2d 1251, 1251-52 (Mass. 1977) (holding that the "plaintiff has the right to use the defendants' `property between the high and low water mark as a means of access to the jetty,' and a right to fish from the jetty"); see also Old Colony St. Ry. Co. v. Phillips, 93 N.E. 792, 794 (Mass. 1911) (finding that there was a right of passage over the flats when they were bare and when they were under water); Packer v. Ryder, 11 N.E. 578, 581 (Mass. 1887) (holding that a right to fish from another's land must be proven by prescription and not by custom).

(69) Commonwealth v. City of Roxbury, 75 Mass. (9 Gray) 451, 515 n.13 (1857).

(70) Kean v. Stetson, 22 Mass. 492,495, 5 Pick. 492, 495 (1827).

(71) The Charter for Rhode Island and the Providence Plantation, granted by King Charles II in July 1663 contains clear language supporting the colonists' right to access to the coast of New England for fishing. The Charter states: "Provided also ... that these presents, shall not, in any manner, hinder any of our loving subjects, whatsoever, from using and exercising the trade of fishing upon the coast of New England, in America." R.I. CHARTER (superseded by R.I. CONST. (1943)), reprinted in THE STATE OF RHODE ISLAND AND PROVIDENCE PLANTATIONS MANUAL: THE OCEAN STATE 118 (1983-1984) [hereinafter R.I. MANUAL]. The effect of the Charter on Rhode Island law is of significant concern to the topic of this Article and will be discussed in the section dealing with Rhode Island. See supra notes 153-95 and accompanying text (discussing the how the Rhode Island cases treated the public trust doctrine). For now it is sufficient to keep in mind that the Charter remained in effect until the adoption of the first Rhode Island constitution in 1843. See R.I. MANUAL, supra, at 116.

(72) See, e.g., Montgomery v. Reed, 69 Me. 510, 515 (1879) (noting that flat owners may not interrupt general navigation); State v. Wilson, 42 Me. 2, 26 (1856) (noting that a riparian owner may erect "wharves and piers upon his own flats, notwithstanding it would prevent the free passage of vessels and boats" over the flats covered by such erections); Boston & Hingman Steamboat Co. v. Munson, 117 Mass. 34, 39 (1875) ("[U]ntil ... [the flats] were filled up the public had a right to use them, at high water, for purposes of navigate.").

(73) See Packer, 11 N.E. at 581 (noting the well-settled right of the public to take shellfish on the shore and flats until they are enclosed); Proctor v. Wells, 103 Mass. 216, 217 (1869) (noting that the right to fish exists regardless of whether title to the land is held by government or individual).

(74) See infra notes 91-93 and accompanying text (discussing harbor lines).

(75) See New York, N.H. & H.R. Co. v. Long, 43 A. 559, 569 (Conn. 1899) (discussing that persons owning land on navigable water may build a wharf unless "restrained by peculiar conditions of navigation or public regulations"); Ockerhausen v. Tyson, 40 A. 1041, 1041-42 (Conn. 1898) (holding that the landowner's rights to extend his land using wharves must be exercised with regard to any rights others may have); Mather v. Chapman, 40 Conn. 382, 395 (1873) (finding that the landowner may extend his land via wharves so long as the public can still freely navigate the water); Stevens v. Paterson & Newark R.R. Co., 34 N.J.L. 532, 534 (1870) (comparing riparian owner's right to his upland to those rights adjacent to a public highway); Gough v. Bell, 21 N.J.L. 156, 165 (1847) (noting that the property in question could be granted away by the state if it did not interfere with the public right of navigation).

(76) See Stevens, 34 N.J.L at 534 (noting that title to soil below the high water mark belongs to the state); Gough, 21 N.J.L. at 165 (recognizing the legislature's role as guardian of littoral lands).

(77) See JOSEPH K. ANGELL, A TREATISE ON THE RIGHT OF PROPERTY IN TIDE WATERS AND IN THE SOIL AND SHORES THEREOF, 236-37 (2d ed. 1847); see also Murphy v. Bullock, 37 A. 348, 350 (R.I. 1897) (finding that individuals have the authority to erect wharves as against other land owners but not as against the state); Folsom v. Freeborn, 13 R.I. 200, 204 (1881) (discussing a riparian owner's right to build and maintain wharves in front of their land so long as navigation is not impeded); Brown v. Goddard, 13 R.I. 76, 81 (1880) (holdings that although one had no title to a certain parcel of land one might have a potential right to fill out if the state allowed it); Providence Steam-Engine Co. v. Providence & Stonington Steamship Co., 12 R.I. 348, 363 (1878) (noting that it was common to wharf out, even without license so long as it did not interfere with navigation); J. S. Thorton & Co. v. Smith Grant & Co., 10 R.I. 477, 482-83 (1873) (deciding that unless the erection of a wharf interferes with navigation, it is not a nuisance); Clark v. Peckham, 10 R.I. 35, 38 (1871) (discussing that the owner has the right to wharf out but no one can prevent another's access to the sides of his wharf).

(78) Butler v. Attorney General, 80 N.E. 688, 689 (Mass. 1907).

(79) See Nicholls, supra note 62, at 115 (discussing the change in interpretation, treating the jus privatum as the dominant interest).

(80) See ANGELL, supra note 77, at 237 (noting that the Ordinance was not generally known in Rhode Island).

(81) See State v. Wilson, 42 Me. 2, 26 (1856) (deciding that a person with title to the shore has the right to build permanent structures so long as the public's use was not interrupted); see also In re The Golden Rod 197 F. 830, 832 (Me. 1912) (holding that the party who owned the shore land could build and maintain a wharf); Matthews v. Treat, 75 Me. 594, 598 (1884) (finding that the public may not erect structures within prescribed limits of the proprietor).

(82) See, e.g., Shively v. Bowlby, 152 U.S. 1, 58 (1894) (noting that control over the use of shore lands is left to the sovereign control of the state). There was even an attempt in 1995 to extend the control to the high, high water mark, rather than the average high water mark. See Andrew Watry, Comment, Resolution of the Public Trust Doctrine: Analysis of the Impact of Phillips Petroleum Co. v. Mississippi, 24 U.S.F.L. REV. 471, 491 (1990) (discussing enactment of statutes to protect wet lands three and one half feet above mean high tide).

(83) Sundell v. Town of New London, 409 A. 2d 1315, 1318 (N.H. 1979).

(84) See Hall, supra note 10, at 331 (noting the increased demand for coastal property for recreational purposes). Ironically, the common recreational use of public trust property adjacent to privately owned littoral property has been ruled by most New England courts as not protected under the public trust doctrine. See Jack H. Archer & Terrance W. Stone, The Interaction of the Public Trust and the "Takings" Doctrines: Protecting Wetlands and Critical Coastal Areas, 20 VT. L. REV. 81, 90 (1995) (noting that some New England states do not include recreation in the protections of the public trust doctrine). Such is the case in Massachusetts where a bird watcher or recreational swimmer may be kept out from littoral flats because those uses were not included in the rights of fishery and navigation that sit at the core of the public trust doctrine. See, e.g., In re Opinion of the Justices, 313 N.E.2d 561, 567 (Mass. 1974) (finding that the public trust doctrine does not include the public right of bathing on the beach). On the other hand, a hiker that carries a fishing rod could proceed unto the same property that would be closed to her if the fishing rod were missing. Compare Barry v. Grela, 361 N.E.2d 1251, 1252 (Mass. 1977) (affirming the lower court's finding that the plaintiff has a right to walk on the defendant's land to fish from a spot not owned by the defendant), with Borough of Neptune City v. Borough of Avon-by-the-Sea, 294 A.2d 47, 54 (N.J. 1972) (holding that the public trust doctrine must be read to include rights of recreation upon the shore).

(85) See generally DAVID A. RICE, FINAL REPORT: A STUDY OF THE LAW PERTAINING TO THE TIDELANDS OF MASSACUSETTS, H. 1970-4932, 2nd Legis. Sess. (Mass. 1970) [hereinafter RICE REPORT]. The limited character of the grant of jus publicum under the Massachusetts Colony Ordinance of 1641-1647 has been raised by Professor David A. Rice in a report ordered by the Massachusetts Legislature in 1970. Rice explained that the title granted to the littoral owners in Massachusetts transferred bare legal title and so much of the reserved and paramount public rights as were necessary to accomplish the purpose of promoting the construction of wharves in aid of navigation and commerce of the colony as a whole. See id. at 24-25. Rice makes the point that the right to wharf out that is contemplated as a result of law developing from the Colonial Ordinance was "not an incident of propriety itself but is instead derived from a limited additional transfer of a part of the jus publicum; mere propriety or possession of the jus privatum would not support the existence of the right to wharf." Id. at 49. Rice reasons that the right to wharf out is the result of a diminution of the right of the public property rights must be constructed in a specially narrow manner against the grant. See id.

(86) See Engs v. Peckham, 11 R.I. 210, 223-24 (1875) (noting that the public trust doctrine has been applied to permit proprietors to make new land by filling flats).

(87) See John Briscoe, Wetlands and Ex-Wetlands in California: The Perils of Insuring Their Titles, in TITLE INSURANCE 1995, at 353, 376 (PLI Real Estate and Practice Course Handbook Series No. N-412, 1995) (explaining that depending on how the newly created land was created, different parties will take claim to it).

(88) See id. at 376 ("[W]hen changes in the ordinary high water line result from reliction or accretion, the newly exposed or created lands belong to the owner of the adjacent uplands. Changes occasioned by erosion result in a loss of the eroded land to the owner." (citations omitted)).

(89) See id.; see also Jefferis v. East Omaha Land Co., 134 U.S. 178, 190-91 (1890) (applying the public trust doctrine of accretion); Mayor of New Orleans v. United States, 35 U.S. 662, 716-17, 10 Pet. 662, 717-18 (1836) (stating the rule for determining rights to land created by alluvial formations).

(90) See Mulvy v. Norton, 3 N.E. 581, 586 (N.Y. 1885) (stating that the Sovereign succeeds to lands that originally were created outside the boundaries of property subject to private ownership).

(91) See Ross v. Mayor of Edgewater, 115 N.J.L. 477, 484 (1935) (stating that the owner of the upland contiguous to the shore could appropriate the shore to his own use which includes filling, provided that no nuisance is created).

(92) See Tracy v. Norwich & Worcester R.R. Co., 39 Conn. 382, 393 (1872) (stating that "a grant from the state may be presumed in favor of long-continued exclusive and adverse possession"); Mahon v. McCully, 7 N.S.R. 323, 328-30 (1868) (stating a rule for land acquired artificially by draining rather than gradually by alluvial deposits); see also GOULD, supra note 25, [sections] 155, at 310 (noting that public right of access is "not lost by the gradual formation of new soil ... by the action of the tides or current").

(93) See Jose L. Fernandez, Public Trust, Riparian Rights and Aquacultre: A Storm Brewing in the Ocean State, 20 WM. & MARY ENVTL. L. & POL'Y REV. 293, 300 (1996) (explaining that a purpresture occurs only when the soil on which a wharf was erected was owned by the Crown).

(94) See id. ("A wharf would be safe from outside claims, either by prepresture [sic] or nuisance, only if the title to the fiats has been granted by the Crown.").

(95) See id. ("[I]f the Crown owned the fiats, the common law would have considered such an encroachment by the riparian owner a prepresture [sic] and the wharf would be subject to seizure by the Crown.").

(96) See John M. Boehnert, Greater Providence Chamber of Commerce v. State: Balancing Private Property Rights in Filled Tidal Lands Under the Rhode Island Public Trust Doctrine, 21 WM. & MARY ENVTL. L. & POL'Y REV. 637, 693 (1997) (noting that the purpose of harbor line legislation was to establish the boundary up to littoral lands that could be filled without interfering with navigation).

(97) See Greater Providence Chamber of Commerce v. State, 657 A. 2d 1038, 1044 (R.I. 1995) (defining harbor lines).

(98) See Engs v. Peckham, 11 R.I. 210, 224 (1875) (holding that "the establishment of a harbor line operates as a license or invitation to the riparian proprietor to fill or wharf out to that line").

(99) See Fernandez, supra note 93, at 301-02 (crediting the Ordinance of 1641-1647 with encouraging the building of wharves).

(100) See 1838 Mass. Acts ch. 40 (1835).

(101) Boston Waterfront Dev. Corp. v. Commonwealth, 393 N.E.2d 356, 361 (Mass. 1979) (citing Res. 1835, ch. 40. and the Report of the Commissioners for the Survey of Boston Harbor, 1837 Sen. Doc. No. 47, at 16).

(102) See generally 1837 Mass. Acts ch. 229 (1835) (establishing harbor lines in the harbor of Boston).

(103) See supra notes 85-96 and accompanying text (discussing littoral owners rights to fill or to wharf out creating new land).

(104) See Gough v. Bell, 21 N.J.L. 156, 163 (1847) (noting the power to build wharves, docks, piers and by implication to fill).

(105) See id. at 161-62 (noting that a right to fill does not grant title to the lands filled or to the person who filled it in).

(106) RICE REPORT, supra note 85, at 25.
 [Neither] Austin v. Carter, ... nor any other early case held tha[t] an
 owner might unalterably change the character of the shore by reclaiming it
 through filling. This is so even though a few decisions badly state the
 power to exclude [the public] in terms of filling as well as building or
 inclosing.


Id. at 24-25; see Henry v. City of Newburyport, 22 N.E. 75, 77 (Mass. 1889) (discussing that, according to a 1866 law, the erection of structures was only to be done with permission via a license); HENRY PHILIP FARNHAM, THE LAW OF WATERS AND WATER RIGHTS 197 (1904) (requiring acquiescence of the Crown to fill the fiats).

(107) See RICE REPORT, supra note 85, at 25. The construction that Rice gives the common law is consonant with a construction that prevents the obliteration of the resource on which public trust rights depend. Yet, even a narrow interpretation of littoral property rights under the public trust doctrine will not safeguard public rights from filling or interference. If, as Rhode Island may have already done, a jurisdiction permits either prescription or implied titles to result in a transfer in fee simple to the littoral owner who fills the shore, the Sovereign, because of an inability to monitor the actions of innumerable private actors, will not be able to fulfill the trusteeship obligation that the common imposes. The situation is precipitated by the increasing value of waterfront land once the fiats are filled, or the value of the structures that exist after many years on the filled fiats. This problem can be limited by redefining the legal implication of setting a harbor line.

(108) See id. at 50-51.
 In the total context of the intent of the colonial ordinance, the
 conditions of the times and the nature of wharves and inclosures, the court
 decisions affirming a private right to wharf and inclose can be easily
 understood.... They are subject to removal as a public nuisance if they
 unduly interfere with the paramount public right of navigation.... Such is
 not the case, however, with filled land.


Id.

(109) See supra note 57 and accompanying text (listing various cases which discussed the need to encourage the private building of wharves for commerce purposes).

(110) See RICE REPORT, supra note 85, at 51 ("Despite contrary suggestions in some court opinions ... no court in Massachusetts has ever held as a matter of law that the riparian owner of the shore has an attribute to his property the right to reclaim his shore by filling.").

(111) See Locke v. Motley, 68 Mass. (2 Gray) 265, 267 (1854) ("In this respect, the right of the public to `free fishing and fowling' is subordinate to the right of property in the soil belonging to the individual."); Austin v. Carter, 1 Mass. 230, 231, 1 Will. 231, 232 (1804) (stating that "so long as the owner of the adjoining land leaves them open and unobstructed--yet the owner ... may, whenever he pleases, enclose, build, and obstruct to low-water-mark, and exclude all mankind").

(112) See Engs v. Peckham, 11 R.I. 210, 224 (1875) (discussing an owner's right to fill out to the harbor line so long as navigation is not obstructed).

(113) Id.

(114) See id. at 213.

(115) See id. at 210-11.

(116) Id. at 224; see Allen v. Allen, 32 A. 166, 167 (R.I. 1895) (holding that an upland owner's filling to the harbor line "extinguishes all public rights within it"); Bailey v. Burges, 11 R.I. 330, 331 (1876) (extending the holding to permit the littoral owner to take the filled land).

(117) See Engs, 11 R.I. at 224 (stating that rather than altering property rights, the harbor lines should be construed as a conveyance which is at least subject to the rights of fishing and navigation).

(118) See Brown v. Goddard, 13 R.I. 76, 81 (1880) (finding that a deed cannot pass title to land under tide water as that land belongs to the state); Aborn v. Smith, 12 R.I. 370, 373 (1879) (stating that "mere establishment of a harbor line does not divest the title of the state and transfer it to the owner of the upland"); Engs, 11 R.I. at 224 (implying the states retained control by holding that "it would be going too far to hold that the mere establishment of a harbor line conveys all within the line absolutely to the riparian proprietors); see also GOULD, supra note 25, [sections] 136, at 274 (discussing how the legislature authorized persons to build structures on navigable waterways).

(119) See Bay City Gas-Light Co. v. Industrial Works, 28 Mich. 182, 184 (1873) (holding that the riparian owner's occupation rights are limited since he cannot use the rights if it will injure the rights of others); People v. New York & Staten Island Ferry Co., 68 N.Y. 71, 79 (1877) (holding that a grant of property does not divest the state of the right to regulate the use of that property); Providence Steam-Engine Co. v. Providence & Stonington Steamship Co., 12 R.I. 348, 355 (1879) (stating that the purpose of the Harbor Line Act is to prevent a person from encroaching too far on the space required for the harbor and conferring any new right, title, or interest on the riparian proprietor); Aborn, 12 R.I. at 373 (discussing the rights of owners of the upland to fill to the harbor line); Bailey, 11 R.I. at 331 (explaining that the Harbor Line Act recognizes the right to fill land if the state establishes a harbor line); Engs, 11 R.I. at 224 (holding that the establishment of a harbor line in Rhode Island gives a privilege to proprietors within the line, to fill out and extend their land).

(120) See Engs, 11 R.I. at 224.

(121) See Dennis W. Nixon, Evolution of Public and Private Rights to Rhode Island's Shore, 24 SUFFOLK U. L. REV. 313, 318 (1990).

(122) Id. at 318 (footnotes omitted).

(123) See id. (discussing the impact on "coastal ecology" from the filling of tidelands).

(124) See supra notes 55-57 and accompanying text (discussing governmental encouragement of the erection of wharves to aid commerce).

(125) See RICE REPORT, supra note 85, at 52. Rice makes this point well:
 It is not conceivable in light of the purpose of the ordinance ... that the
 grant of propriety by the colonial General Court included the grant of the
 right to fill. To grant such authority would not aid or promote navigation
 and water-borne commerce or even the development of exclusive fisheries.


Id.

(126) See Victor G. Hanson & John V. Berry, The Diminution of the Merchant Marine: A National Security Risk, 74 U. DET. MERCY L. REV. 465, 471 (1997) (noting the decline in the commercial fleet in the United States).

(127) See infra notes 153-215 and accompanying text (discussing state and federal decisions concerning a state's responsibility to preserve public resources and the strictness with which private grants are construed).

(128) See Martin v. Waddell, 41 U.S. (16 Pet.) 367, 410-11 (1842) (emphasizing the importance of the public right to enjoy lands not granted to private owners).

(129) See id. at 411.

(130) 41 U.S. (16 Pet.) 367 (1842).

(131) See id. at 407-08 (setting out the issues of the case).

(132) See id. at 407, 410-11. The plaintiff sought to recover 100 acres of land covered by water. Interpreting the 1834 grant, the Court stated that "the power of the king ... to grant a subject a portion of the soil covered by the navigable waters of the kingdom.... must be regarded as settled in England against the right of the king since [the] Magna Charta to make such a grant." Id. at 410.

(133) See id. at 411,418.

(134) See id. at 411.

(135) See id. (stating that "whatever does not pass by the grant, still remains in the crown for the benefit and advantage of the whole community ... and it will not be presumed ... [to pass] from any portion of the public domain, unless clear and especial words are used to denote it"); see also Westfall v. Van Anker, 12 Johns. 425, 425 (N.Y. 1815) (finding that defendants did not gain exclusive rights over the area even though they cleared out the fishing place). Even a town's authority to claim a particular rather than a common right, of fishery requires the express action of the legislature and will not be implied. See Palmer v. Hicks, 6 Johns. 133, 135 (N.Y. 1810) (explaining that a grant of lands under navigable water will not be presumed "without evidence of long exclusive possession and use"). Even when a town is given a general property grant over tidal fiats, restriction of the public trust rights requires a specific action by the legislature. See Coolidge v. Williams, 4 Mass. (3 Tyng) 140, 144-46 (1808) (explaining that the only way to restrict the fishing rights of the public is by statute). See generally ANGELL, supra note 77, at 133 ("If there are no words in a patent from the government showing an intention to grant an exclusive fishery, it still remains public.").

(136) Martin, 41 U.S. (16 Pet.) at 410-11. In the United States, since the Revolution, the people as sovereign "hold the absolute right to all their navigable waters and the soils under them for their own common use, subject only to the rights ... surrendered by the Constitution to the general government." Id. at 410.

(137) See id. at 411.

(138) Id.

(139) Id.

(140) 146 U.S. 387 (1892).

(141) See id. at 452.

(142) See id. at 453-54.

(143) See id. at 452.

(144) Id.

(145) Id.

(146) Id. (emphasis added).

(147) Id.

(148) See id. at 452-53.

(149) See id.

(150) See id. at 453 ("Such abdication is not consistent with the exercise of that trust which requires the government of the State to preserve such water for the use of the public.").

(151) Id.

(152) See generally Greater Providence Chamber of Commerce v. Rhode Island, 657 A. 2d 1038 (R.I. 1995) (holding that once a littoral owner in Rhode Island has acquired and filled shoreline land, the state cannot reacquire it); State v. Ibbison III, 448 A.2d 728 (R.I. 1982) (holding that in order to impose criminal penalties for trespass above the mean high tide line, it must be shown that the person knew the location of the boundary line and intentionally trespassed).

(153) For a more extensive treatment of the Rhode Island cases, the author directs the reader to his earlier piece, Public Trust, Riparian Rights, and Aquaculture: A Storm Brewing in the Ocean State, 20 WM. & MARY ENVTL. L. & POL'Y REV. 293 (1996).

(154) 448 A.2d 728 (R.I. 1982).

(155) See id. at 729.

(156) Id.

(157) See id.

(158) See id. at 729-31.

(159) See id. at 731-32. The court quoted Sir Matthew Hale with approval on his assertion that "`[t]he shore is that ground that is between the ordinary highwater and low-water mark. This doth prima facie and of common right belong to the king.'" Id. at 731.

(160) See id. at 731.

(161) See Greater Providence Chamber of Commerce v. Rhode Island, 657 A.2d 1038, 1040 (R.I. 1995) (stating that the common law public trust doctrine which holds that the state has title to all land below the high-water mark "can be extinguished by a valid legislative state grant").

(162) 657 A.2d 1038 (R.I. 1995).

(163) See id. at 1039.

(164) See id.

(165) Id. The filling of the Cove had been carried out during the seventeenth and early eighteenth century. See id. at 1041.

(166) Id. at 1041.

(167) See id.

(168) 594 A.2d 874 (R.I. 1991).

(169) Greater Providence, 657 A. 2d at 1041.

(170) See id. at 1041-42.

(171) See id. at 1042.

(172) Id. (citing Nugent v. Vallone, 161 A.2d 802, 805 (R.I. 1960) (holding that under the public trust doctrine, the state holds title to the soil under the public water of the state for the benefit of the public); City of Providence v. Comstock, 65 A. 307, 308 (RI. 1906) (concluding that under the common law public trust doctrine, lands covered by tide waters are owned by the state except when changed by local law or custom); New York, N. H. & H. R. Co. v. Horgan, 56 A. 179, 181 (R.I. 1903) (finding that each town should use the shore to promote the interests of the crown and the colony so not to prejudice any person)).

(173) See Greater Providence, 657 A.2d at 1039.

(174) See id. at 1041.

(175) Id.

(176) Id. The filling of the remaining Harbor Line properties was pursuant to permits issued by the Rhode Island Board of Harbor Commissioners in 1907, 1909, and 1914. See id. Therefore, the court held that title was transferred by the state. See id.

(177) Id. at 1040.

(178) See id. at 1041.

(179) See id. at 1045.

(180) See id. at 1041 (stating the court's purpose to clarify interpretations of previous holding).

(181) Id. at 1043.

(182) Id.

(183) Id.

(184) See id. at 1043-45.

(185) Id. at 1044.

(186) Id.

(187) Id.

(188) Id.

(189) Id.

(190) Id. (quoting the state's propositions).

(191) Id.

(192) See, e.g., State v. Ibbison III, 448 A. 2d 728, 732 (R.I. 1982) (noting that its decision balanced the interest of littoral owners and the state).

(193) See Greater Providence, 657 A. 2d at 1041 (assuming that landowners acted with the state's approval); Ibbison III, 448 A.2d at 731 (describing the burden on landowners).

(194) See Greater Providence, 657 A. 2d at 1043-44 (noting the substantial improvements made to the land as a factor establishing a fee simple absolute in favor of the landowners).

(195) Id. at 1041 (discussing the public trust doctrine as a means of allocating a scarce resource).

(196) See infra notes 231-74 and accompanying text (discussing the basis for transfer of public trust property).

(197) See Storer v. Freeman, 6 Mass. 435, 437, 5 Tyng 435, 438 (1810) (discussing reasons for altering the common law of England with respect to rights to shoreland).

(198) 525 N.E.2d. 1298 (Mass. 1988).

(199) See id. at 1299-1300.

(200) See id. at 1299. The defendant owner had moored a thirty foot catamaran, a nineteen-foot flat-bottomed sailboat and a sixteen-foot outboard in the same area that the town had licensed for shell fishery operation. See id. At low tide the boats rested directly on the tidal fiats. See id. The result was that at low tide the moored boats would either kill the shellfish or destroy the pens where the shellfish were kept to grow. See id.

(201) See id.

(202) See id. at 1299-1300 ("The defendant refused [to remove his boats] whereupon the town brought this action, claiming that the defendant had violated G.L. c. 130, [sections] 67." (footnote omitted)).

(203) Id. at 1300.

(204) Id.

(205) See id. at 1301-02 (citing cases addressing the public trust doctrine).

The public right to fish includes the right to dig for shellfish. The Legislature may enact reasonable regulations appurtenant to that public right, including granting exclusive fishing rights to particular individuals. Therefore, the court concludes that it is within the power of the Legislature to authorize towns to issue licenses for shellfishing on privately owned tidal flats....

"We have frequently had occasion to declare the limited nature of public rights in the seashore." While the public clearly has the right to take shellfish on tidal fiats, there is no general right in the public to pass over the land, or to use it for bathing purposes. Nor may the public take soil or seaweed resting on the soil of the fiats. In close parallel with this case, it has been held that there was no liability in trespass for interference with the part of a fishing weir the plaintiff placed on tidal fiats adjoining the land. The court noted, in dictum, that it doubted whether the plaintiff had any right to fix stakes in the riparian owner's land for the purposes of securing the weir.

These authorities indicate that, while the public clearly retains the right of fishing in the intertidal zone, that right is far from unqualified. As Chief Justice Shaw commented in the course of discussing the reserved public right of navigation "[l]ooking at the terms of this law, and the purposes for which it was intended, the object seems to have been, to secure to riparian proprietors in general, without special grant, a property in the land ... subordinate only to a reasonable use of the same by other individual riparian proprietors and the public, for the purposes of navigation ..."

Id. at 1301-02 (first emphasis added) (citations omitted).

(206) Id. at 1301 (citing Austin v. Carter, 1 Mass. 230, 1 Will. 231(1804)).

(207) Id. (citing Commonwealth v. Alger, 61 Mass. (7 Cush.) 53, 89 (1851)).

(208) See id. at 1302-05. Justice O'Connor's concurring opinion voiced a more limited view of the public's rights over the fiats. See id. O'Connor asserted that the right of fishery was not at issue here since that right did not include the right to farm shellfish or aquaculture. See id. at 1304. In effect, O'Connor does not find a right to aquaculture among those natural derivatives of the public trust rights. See id. (citing In re Opinion of the Justices, 313 N.E.2d 561, 567 (Mass. 1974)).

(209) Id. at 1304.

(210) Id.

(211) Id.

(212) Id. (citing In re Opinion of the Justices, 313 N.E. 561, 566 (Mass. 1974)).

(213) See THE RANDOM HOUSE DICTIONARY OF THE ENGLISH LANGUAGE 1475 (2d ed. 1987) (defining piscatory).

(214) See id. at 1302.

(215) See id.

(216) 631 N.E.2d 547 (Mass. 1994).

(217) Wellfleet v. Glaze, 525 N.E.2d 1298, 1299 (Mass. 1988) (stating that the "underlying question here is the relative rights of private owners and the public in tidal flats").

(218) See Pazolt, 631 N.E.2d at 548 (involving the owner of a hotel seeking to prevent growing of shellfish on tidal lands by licensed fish farmer).

(219) See id. at 548-49 ("The beach area and associated recreational opportunities are important to the motel's commercial viability.").

(220) Id. at 550.

(221) See id. at 551.

(222) See id.

(223) Id. (quoting Wellfleet v. Glaze, 525 N.E.2d 1298, 1304 (Mass. 1988)).

(224) See id. at 551 (stating that the public retains, under the Ordinance, the right to fish, navigate, and dig for shellfish, but not to affix permanent structures to the soil).

(225) See Commonwealth v. Alger, 61 Mass. (7 Cush.) 53, 57-58 (1851) (discussing the purposes for the Colonial Ordinance).

(226) See Storer v. Freeman, 6 Mass. 435, 437, 5 Tyng 435, 438 (1810) ("For the purposes of commerce, wharves ... were necessary.").

(227) See id. at 437, 5 Tyng at 438 (noting the departure from the common law doctrine of public trust).

(228) See Illinois Cent. R.R. Co. v. Illinois, 146 U.S. 387, 452 (1892) (describing as valid those grants which do not "substantially impair the public interest").

(229) See People ex rel. Scott v. Chicago Park Dist., 360 N.E.2d 773, 780 (Ill. 1976) (discussing the public trust doctrine and noting that the court will scrutinize actions which subject public resources to the self interest of private parties).

(230) See Wellfleet v. Glaze, 525 N.E.2d 1298, 1304 (Mass. 1988) (holding that the public cannot interfere with private property rights in the situation where public undertakes aquaculture on private property); Andrea Marston, Note, Aquaculture and the Public Trust Doctrine: Accommodating Competing Uses of Coastal Waters in New England, 21 VT. L. REV. 335, 336 (1996) (discussing aquaculture as a potential solution for communities that have been effected by the decline in wild fish populations).

(231) See supra notes 55-71 and accompanying text (discussing various basis for the grant of public trust land to private littoral owners).

(232) See supra notes 57-84 and accompanying text (tracing the history of the public trust doctrine in New England).

(233) See supra note 51 and accompanying text (including fishing, fowling, and navigation by the public as activities that define public benefit).

(234) See, e.g., James M. Kehoe, The Next Wave in Public Beach Access: Removal of States as Trustees of Public Trust Properties, 63 FORDHAM L. REV. 1913, 1915 (1995) (discussing increased litigation and legislation over coastline access).

(235) See Marston, supra note 230, at 360 (discussing the fact that a great deal of coastal areas will be privately owned by corporations, homeowners or hotel and motel owners).

(236) 321 N.W.2d 182 (Wis. 1982).

(237) Id. at 188. Under this doctrine, if the landowner has received sunlight across adjoining property for a period of time, the landowner was entitled to continue to receive sunlight by acquiring a negative prescription easement against the adjoining landowner. See id.

(238) Id. at 188 (repudiating the public trust doctrine that grants an easement to light and air over adjacent property).

(239) Id. at 189.

(240) See id. at 188-91 (concluding that a landowner can be protected from malicious obstruction of access to light by the common law private nuisance doctrine).

(241) Id. at 190.

(242) Boston Waterfront Dev. Corp. v. Commonwealth, 393 N.E.2d 356, 366 (Mass. 1979).

(243) See Jose L. Fernandez, Dynamic Statutory Interpretation: Occupational Safety and Health Act Preemption and State Environmental Regulation, 22 FLA. ST. U. L. REV. 76, 102 (1994).

(244) Id. at 102.

(245) See id. (noting that the "greater transactional costs involved in organizing larger groups of people" acts as a "disincentive to political participation").

(246) See id. (referring to this as the "`free rider' phenomena" (citation omitted)); see also Marc Stuart Gerber, Note, Equal Protection, Public Choice Theory, and Learnfare: Wealth Classifications Revisited, 81 GEO. L.J. 2141, 2157 (1993) (explaining how an individual "has an opportunity to gain a benefit at no cost to herself, in effect, to take a `free ride,'" when a statute benefits a large group of people).

(247) See id. at 102-04 (explaining that legislators are seen as just selling the ability to produce legislation to those with the greatest impact on the legislator's re-election chances).

(248) See Tom Horton, Protection of the Chesapeake Bay: Environmentally Legal, Eminently Uninhabitable?, 47 MD. L. REV. 406, 416 (1988) ("In our own country, fully three-quarters of us will soon live within fifty miles of an ocean or great lakes coast.").

(249) See Bernard Grofman, Public Choice, Civic Republicanism, and American Politics: Perspectives of a Reasonable Choice" Modeler, 71 TEX. L. REV. 1541, 1547, 1578, 1581, 1583 (1993) (explaining that public choice theorists maintain that legislators, as rational maximizers of their opportunities, will fight for legislation that favors small, well-organized wealthy groups, such as developers that can deliver or withhold the political votes that will insure reelection).

(250) See Kehoe, supra note 234, at 1915 (stating that there has been an increase in privatization of coastal properties which results in diminished access by the public).

(251) Lynn A. Stout, Strict Scrutiny and Social Choice: An Economic Inquiry into Fundamental Rights and Suspect Classifications, 80 GEO. L.J. 1787, 1789 (1992).

(252) See Kehoe, supra note 234, at 1915.

(253) See Fernandez, supra note 243, at 102-03 (arguing for courts to act in the "public interest ... regardless of the original legislative intent").

(254) LAWRENCE M. FRIEDMAN, A HISTORY OF AMERICAN LAW 14 (1973).

(255) Id.

(256) Fernandez, supra note 243, at 102; see Gerber, supra note 246, at 2155 (defining "legislative failure").

(257) See supra note 224 and accompanying text (noting that there is an obligation for the state to act as trustee over the lands which the public as a whole has a right to use).

(258) See Boston Waterfront Dev. Corp. v. Commonwealth, 393 N.E.2d 356, 359-63 (Mass. 1979) (providing a history of encroachment on the flats of Boston Harbor).

(259) Id. at 362 (citations omitted).

(260) See id. (noting that "continuing pressure for development" resulted in the need for a Board of Harbor Commissioners to regulate "building or filling on the tidelands" of the Boston Harbor as early as 1866).

(261) See id.

(262) See id.

(263) See supra note 80 and accompanying text (noting that Rhode Island has recognized the right to build out on flats so long as navigation is not impaired).

(264) See supra note 77 and accompanying text (noting how wharves may extend from high to low water marks).

(265) 393 N.E.2d 356 (1979).

(266) Id. at 363. Ultimately, the court concluded in that case that the title to the flats resides on the legislature, requiring express grant from that body to be passed to private ownership. See id. at 363-64. Even then, such ownership is subject to the condition subsequent that the flats be used for the particular public purpose for which the title was granted. See id. at 365.

(267) See id. at 366 (acknowledging that such alienation touches on a trust with the people "central to the notion of governmental power").

(268) See id. ("This court has also held that [such] legislative acts must be for a public purpose.").

(269) In re Opinion of the Justices, 8 N.E.2d 753, 756 (Mass. 1937) (emphasis added).

(270) See supra notes 185-86 and accompanying text (explaining that that the burden is on the state to demonstrate that it had not given its tacit approval to the private filling of the tide lands).

(271) See In re Opinion of the Justices, 313 N.E.2d 561, 565 (Mass. 1974) (stating that "in order to encourage littoral owners to build wharves, the colonial authorities took the extraordinary step of extending private titles to encompass [more] land").

(272) See 3 PAGE SMITH, A PEOPLE'S HISTORY OF THE YOUNG REPUBLIC: THE SHAPING OF AMERICA 328 (1980) ("Americans were as much the captives of geography as its conquers. The slowness and difficulty of travel and communication ... condemned them to a thoroughgoing provincialism.").

(273) See id. at 329, 337 (noting that waterway travel was the "cheapest and most practical" and that "in the beginning, water was everything; all solutions were aqueous").

(274) See id. at 337.

(275) 571 A.2d 1128 (Vt. 1989).

(276) Id. at 1130.

(277) See id. at 1129 (noting that Vermont brought the action in response to the Railway's effort to alienate filled land for real estate development).

(278) See id.

(279) See id.; see also VT. STAT. ANN. tit. 27, [sections] 1002 (1989) (stating the present version of the 1827 Vermont Act); VT. STAT. ANN. tit. 12, [sections] 4983 (1973) (providing "[g]rounds for forfeiture of grants" when there is a "nonperformance of a condition annexed to or contained in such grant").

(280) See Central Vermont Ry., 571 A. 2d at 1129.

(281) See id.

(282) Id. (paraphrasing VT. STAT. ANN. tit. 27, [sections] 1002 (1989)).

(283) Id. at 1130. The court notes that the public trust doctrine is not static, citing to Matthews v. Bay Head Improvement Ass'n, 471 A.2d 355, 365 (N.J. 1984), which quotes Borough of Neptune City v. Borough of Avon-by-the-Sea, 294 A. 2d 47, 54 (N.J. 1972). The court also cites to National Audubon Soc'y v. Superior Court of Alpine County, 658 P.2d 709, 719 (Cal. 1984) and Shively v. Bowlby, 152 U.S. 1, 26 (1894).

(284) See Central Vermont Ry., 571 A. 2d at 1130.

(285) Id. (quoting United States v. 1.58 Acres of Land Situated in Boston, 523 F. Supp. 120, 122-23 (D. Mass. 1981)).

(286) See id.

(287) See id. ("The character of this [public trust] title is distinctive as compared to state-held title in other lands.").

(288) Id.

(289) Id. at 1129-30.

(290) See id. at 1136 ("Lands held subject to the public trust may be used only for purposes approved by the legislature as public uses.").

(291) See id. at 1135-36.

(292) See id. at 1136.

(293) See supra notes 241-46 and accompanying text (discussing the personal bias that interferes with legislative judgment).

(294) See supra notes 226-38 and accompanying text (explaining that public trust property must be protected and that the courts must assume this duty).

(295) See Boston Waterfront Dev. Corp. v. Commonwealth, 393 N.E.2d 356, 358 (Mass. 1979) ("Throughout history, the shores of the sea have been recognized as a special form of property of unusual value; and therefore subject to different legal rules from those which apply to inland property.").

(296) See id. at 358.

(297) See Central Vermont Ry., 571 A. 2d at 1130 (observing the "distinctive" character of flatland compared to other "state-held title").

(298) See supra notes 268-69 and accompanying text (explaining that the granting of private ownership to tidal flats is limited and can only be done where there is some public benefit).

(299) Id. at 1129-30.

(300) See supra notes 76-85 and accompanying text (surveying littoral owner's title in Connecticut, Massachusetts, New Hampshire, New Jersey, New York, Maine, and Rhode Island).

(301) See Central Vermont Ry., 571 A.2d at 1130.

Jose L. Fernandez, A.A., Thomas Edison University, 1980; B.A., Thomas Edison University, 1982; J.D., Rutgers University School of Law-Camden, 1985. The author most recently taught at Roger Williams University School of Law (1995-1998). The author also clerked for Chief Justice Robert N. Wilentz of the New Jersey Supreme Court (1985-1986), served as an Assistant Public Advocate in the New Jersey Department of the Public Advocate (1986-1988), and taught at Rutgers Law School at Camden (1988-1995). The author would like to thank his research assistant Christine Marie Fraser for her significant contribution and insight. In this piece, the author revisits some of the history and discussion first raised in his earlier piece, Public Trust, Riparian Rights, and Aquaculture: A Storm Brewing in the Ocean State, 20 WM. & MARY ENVTL. L. & POL'Y REV. 293 (1996). This piece advances the discussion from a strictly Rhode Island point of view to a broader treatment of the public trust doctrine as modified by the Massachusetts Colonial Ordinance and its subsequent judicial development in the New England states and beyond.
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Date:Dec 22, 1998
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