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

• Author: Fernandez, Jose L.

1. 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.

2. 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...