# CITIZENS 

# GUIDES 

# TO 

# OCEAN 

# AND COASTAL 

# LAW



# Public 

# Shoreline 

# Access

AND THE 

# Moody Beach Case

MARFNE LAW INSTITUTE hteretmh Marine 

## Law Institute University 

### of

## Maine School of

## Law 246 Deering 

## Avenue Portland 

## Maine 04102 

## August 1990

In 

## March 1989 the 

### Maine Supreme Judicial Court issued its decision inBell

## v Town of

### Wells also 

### known as the 

## Moody Beach 

## Case The case has 

### cometo symbolize the conflict between public versus private rights to the shore in 

### Maine and it has been cited as authorityforthe proposition that the public has only very limited rights in the intertidal zone 

### the area between high and 

### low tide

Public access to and along the shore is a sensitive issue in 

### Maine which despite its 

## mag nificent 

### 3500 milecoastline has only 27 mitesof publicly

## owned sandy beaches2 Furthermore an ancient Colonial Ordinance applicable only in 

### Maine and Massachusetts extends private 

### prop erty rights to the low water 

## mark subject to a public easement for fishing fowling and 

### naviga tion The extent of permitted public uses of private tidelands is therefore an extremely 

### impor tant issue and is directly affected 

### by the 

## Moody Beach 

## Case 

# How the 

## Case Arose Moody Beach is a sandy 

### beach about a mile 

### long in the 

## Town of 

### Wells just north of the Ogunquit 

### town line 

### About 100 private 

### homes adjoin the 

### beach and in 

### 1984 28 ofthese 

## home owners filed a

### quiet title action inSuperior Court against the

## Town of

### Wells the State Bureau of Public 

### Lands and various individuals 

### The 

## own
erssought a court declaration to prevent the public from

### walking 

## swimming sunbathing orusing the beach in front of their 

### homes for general recrea tional purposes 

### The owners 

### were concerned about the increase in the publics use of

## Moody Beach and the

## Town was perceived as unwilling to treat 

### members of the public 

## who were abusing their beach 

### privileges as trespassers 

### The SuperiorCourt

### however dismissedthecase 

### onthegrounds that the State 

## may not be suedwithout its consent sovereign 

### immunity The property owners 

## ap pealed to the 

### Maine Supreme Court 

# The First

## Decision Bell 

## I

In 

### 1986 the 

### Supreme Court ruled in Bell 11 that the property

### owners suitshould not have been dismissed

### on the grounds ofsovereign inununity because the State

### was not an indispensable party to the litigation In so

### doing theCourtfound that the State 

### was not the trustee of public rights in tide lands in

## Maine and therefore the owners were not required to sue the State along with the 

## Town of 

### Wells The Court also found that the Colonial Ordinance enacted 

### by the Massachusetts 

### Bay Colonies between 

## 16411647 altered 

### Maines 

## common law 

### by extending private ownership of thebeach to the 

### low water 

## mark extinguishing all public rights in privately 

### owned tidelands except forfishing fowling and navigation 

## Bell had two effects First before the case was decided in response to conflicting claims to 

## Moody Beach the State Legislature enacted 

### The Public Trust in Intertidal 

### Land Actl in 

### 1986 The Act declared that

## the intertidal lands ofthe State are impressed with a public trust and therefore the public has the right to use intertidal land for recreation 

### Second the ruling in

### Bell permitted thecase to proceed to trial in SuperiorCourt

### on the issue ofwhether theextensive public use of

## Moody Beach had created a public recreational easement 

### by prescription implied dedication orlocal 

### cus 

# tom

After a four

## week trial in 

### 1987 the Superior Court decided that the public had acquired 

### no easement over 

## Moody Beach by custom or any other 

## common law doctrine and that the 1986 Public Trust in Intertidal 

### Land Act guaranteeing public recreational useofintertidal lands 

### was

## un constitutional This decision 

### was appealed to the 

### Maine Supreme Judicial Court 

# The Courts Final Decision Bell II

In 

### 1989 the 

### Maine Supreme Courtupheld the lower court ruling and found that 

### InMaine public rights inprivately 

### owned

2 tidelands are limitedonly tothose specifi cally enumerated in the 1647 Colonial 

### Ordinance that is fishing fowling and navigation 

### The Courtheld that although the Colonial Ordinance 

### was never 

## ex pressly adopted 

### by the State Legislature and 

### was annulled 

### by the revocation ofthe Massachusetts Colonial Charterin the late 17th century it has

### become partofMaine 

## s common law 

### by custom and 

### usage
Since the Colonial Ordinance extends 

## ad joining private property rights

## down to the 

### low water

## mark Maines Public Trust in Intertidal 

### Land Act caused a physical 

### in trusion to private property 

### bypermitting public recreational use of private tide lands Therefore the Act 

### was an 

### uncon stitutional 

## taking ofproperty forpublic purposes without justcompensation 

### for bidden 

### bythe5th and 14th

### amendments to the United States Constitution and 

### Maines State Constitution 

## No public rights 

### beyond fishing fowling and navigation were acquired at

## Moody Beach bycustom prescription orimplied dedication If the State orthe 

## Town of Wells wishes to extend public uses 

## be yond those prescribed 

### bythe Colonial 

## Or dinance it 

### must purchase the beach or exercise its powers of eminent 

### domain and 

### pay just

### compensation 

## After 

# Moody Beach 

# What Are the 

## Publics Rights 

## Along the 

## Shore in 

# Maine
The public still has the right 

### by virtue of an easement created 

### by the Colonial Ordinance to use privately

## owned intertidal 

### land but only if it is engaged infishing fowling ornavigation 

### The land to 

### which this easement applies is the area between 

### mean high water and 

### mean low water 

## or to 1650 feet seaward from the high water if the 

### mean low watermark is even farther 

### seaward If the shoreline is 

### beach this is the wet sand area If the shoreline is

### marshmudflat orledge the inter tidal areawill 

### commonly consist ofgravel beaches or 

## mud flats 

## See the following diagram for further illustration

## Public 

## Beach Rights After

# Moody Beach

ATLANTIC OCEAN



## LOW TIDE



### SUBMERGED LANDS stateowned 

### SANDY BEACH private property no public trust rights in Maine

IIIGII TIDE

PRIVATE TIDELANDS TIDAL FLATS 

### OR FORESHORE subject to public trot rights of only fishing fowling navigation in Mainc



### The landsseaward of

### mean low water

## or1650 feet from high 

### water are called 

## submerged lands They are 

### owned by the state Public use is not restricted to fishing fowling or navigation 

### The public generally has unrestricted use of the water and sea 

### bottom subject to state regulations 

### However public rights to use certain 

### submerged lands

## maybe restricted by leasesbetween the State and private individuals in which the lessee is granted exclusive use of particular 

### submerged lands such as for aquaculture ormarinas 

### The dry sand area or rocky shore area above 

### mean high water and adjacent uplands are

### gener ally privately

## owned Only about

# 7 ofthecoast line is in public

### ownership The public has 

### no

## ab solute light to 

### make any use of that privately 

### owned land for recreation fishing fowling 

### navi gation or any other purpose Neither does the public have a right to pass over privately

## owned upland to obtain access to the intertidal area to

3 

### Anne Bernard
engage infishing fowling ornavigation In 

### Maine there has been a

### custom of

### permissive access or permissive 

### trespass which the public has relied 

### on to cross privately

## owned unimproved 

## un posted land with the assumption that they had informal permission ofthe 

### owner 

## However this customary use rarely achieves the status of a legally enforceable right 

### and depends 

### on contin ued land

## owner acquiescence Clearly the public has rights to use the upland if it is publicly 

## owned subject toany 

### governmen tal regulations 

### The public also has a right to use the upland if the public has 

### been granted an

### ease mentover private 

### land such as with apublic road orpublic 

### path The public 

## may also have a legally enforceable right ofuse if the upland 

### owner has granted the public the right to use it 

### by license lease orotherwise Finally as discussed 

### above even though not a legally enforceable right the public 

## may be able to cross private 

### unimprovedunposted land through the tradition ofpermissive access but onlywith the actual orimplied

### permis sion ofthe property 

### owner 

# What Is 

# Meant by 

# Fishing 

# Fowl ing and 

# Navigation
The Maine Court has been addressing this question 

### on a case

## bycase basis since the early 19th century There is 

### however no 

### comprehen sive statement of appropriate public uses in the intertidal zone under the Colonial 

### Ordinance The Court has held that the easement includes uses reasonably incidental or related to fish 

### ing fowling 

### and navigation The public 

### ease ment applies equally to protect those individuals involved in fishing fowling or navigation for 

### sustenance business or

### pleasure
Since 

## many of the cases date from the 

## mid 19th century the case law issometimes oflimited help in defining the 

## modem parameters ofthese terms 

### The cases have held that the term 

## fish ing includes digging for

## wormsand 

### clams and the taking ofshellfish a person has a right to be 

### on the privately

## owned intertidal area as long as he is engaged in those activities 

## However there are 

### some apparent restrictions 

### on removing items located in the intertidal area while taking fish shellfish sea 

### manure and floating seaweed from the intertidal zone is allowed cases have held that the public 

## maynot harvest 

### mussel bed 

## manure orseaweed cast 

### upon the beach from within that 

## zone The cases alsosuggest that the public 

## may not 

### remove sand and 

### empty shells from the inter tidal area 

### The Court has previously found that the publics right to fish does not include the right to erect fish weirs orfasten seineorfishing 

### equip ment to private tidelands 

### The term 

## fowling has not received nearly the 

### same judicial scrutiny It is generally inter preted to 

### mean bird 

### hunting 

## Somecommenta tors have suggested that the 

### meaning should be widened to include bird watching but there is 

### no indication that the Court 

### would be willing to extend the ordinance 

### beyond the obvious 

## mean ing ofthe 

## wont The term

### navigation has been construed to 

### mean that the public can sail over the intertidal lands can 

## moor craft 

### upon them and can allow



### 4 vessels to rest 

### upon the intertidal land 

### when the tide is

### out These activities 

## may be conducted for profit such as ferry services in 

### which the boat operator picks 

### up and discharges passengers 

### on intertidal 

### land As an incidental 

### use if a person reaches the intertidal land 

### by means ofnavigation the person can 

### walk on the intertidal lands for purposes related to navigation or to reach lands 

### but not necessarily the land of the upland 

### owner which
are accessible 

### by travelling along the intertidal zone11 This right to travel through the intertidal lands does 

### not however include the right to remain 

### on the intertidal lands for bathing 

### sun bathing or recreational 

### walking 

## A boat operator can also 

### moor the vessel to discharge 

### and take 

### on cargo in the intertidal 

### zone provided that the cargo does not spill over onto the uplands and provided that the flats are 

### unoccupied In keeping with the importance of the intertidal area for travel it has also been held that the public can ride orskate over the intertidal
area 

### when it is covered with 

## ice

It has 

## now been determined 

### by the 

### Maine Supreme Court that thisterm does not include the right to use private tidelands forgeneral 

### recrea tional uses such as strolling along the beach 

### except if incidental to fishing 

### fowling or navigation 

### sunbathing picnicking 

### bathing or frisbee

## throwing 

# What Are Private Property Rights in 

### the Intertidal 

# Zone

The 

## Moody Beach Case affirms that in

### Maine owners ofbeachfront property or propertyadjoin ing tidelands also called littoral or riparian

## own ers have private property rights to the 

### low water 

### mark or 

### low tide area subject only to a public easement forfishing fowling and navigation as defined 

### above Thus the public should be aware that littoral orriparian owners 

## maybring an action for trespass against 

### members of the public 

### who enter 

### upon private tidelands without permission except for the purposes of fishing fowling and navigation as defined 

## above Although the public easement for fishing fowling and navigation

## may in

### some cases be cutoff 

### by selling filling ordeveloping private tide lands public navigational rights 

## may not be 

## un reasonably 

## impeded Riparian owners have the exclusive right to 

### MOOT their boats 

### on their pri vately 

### owned tidelands as long itdoesnot interfere with the publics reasonable use of the area for shellfishing or other public trust uses fishing fowling or

### navigation Finally owners ofprivate tidelands 

### must still obtain all necessary local state and federal 

### per mits priortoany tideland development 

### Environ mental laws prevent mostconstruction activities in tidelands except for 

### wharves piers and in exceptional circumstances fill for residential 

### commercial or industrial development 

# Ways to 

## Address Public Shoreline Access 

## Needs in 

## Maine After 

# Moody Beach

Even before the 

## Moody Beach Case the 

### prob lem of securing access to 

### Maines coastal 

### shore line 

### was growing increasingly critical as tradi tional access points were built 

### upon fenced off posted or purchased 

### by new owners 

## who were unwilling to allow old patterns of usage to 

## con tinue

Conflicts 

### were increasing as 

### more people tried to use the fewer remaining access points 

### With the decision in the 

## Moody Beach Case the problemswere 

### compounded by the determination that even if a person is able to reach the shoreline there is no broad right touse the intertidal area for recreational pursuits 

### The use has tobe limited to fishing fowling ornavigation 

### As a result ofthe 

## Moody Beach decision state and local coastal managers have focused their

### at tention on other 

### ways to secure public shoreline access and rightsof

### use For

### example some have explored asking the State Legislature to enact a revised version ofthe 1986 Public Rights in Inter
tidal 

### Zone Act 

### found to be unconstitutional in the 

## Moody Beach decision which declared that the public had a right to use intertidal land for recreation In order to address the 

### Courts 

## con cerns at a

## minimum a revised Act

### would have to 

### more clearly limit and define the permissible

5 public recreational activities and provide 

### some mechanism forcompensating landowners for the recreational 

### easement
Other options for securing public access 

### in clude land use regulations purchasing rights of access trading 

### town lands negotiating a lease or license conducting a 

### rightofway rediscovery project or receiving gifts 

### which improve public access All of these 

### methods 

## may be used 

### by towns State agencies 

## may also 

### be involved in purchasing rights or accepting gifts to improve public access 

## Land Use Regulation
There are several land use regulatory tech niques that 

## may be used to encourage 

## orrequire 

### new real estate developments to 

### make provisions forpublic access to and useofthe shoreline where such development burdens public access These 

### methods however have 

### no impact in areassuch as 

## Moody Beach where the shoreline is already fully developed 

### Thetechniqu esinclude incentive zoni

## ng bonus 

### zoning transfer of development rights systems exactions and impact fees

### The use ofany ofthese techniques should be supported by a shoreway access or

### open space 

### component of a

### comprehen sive 

### plan If the provisions are 

### mandatory 

## ex treme care needs to be taken in drafting the 

### imple menting ordinance
For further information see 

## Maine Shore AccessPublic Access Series Planning and 

## Im plementing Public Access Strategies available through the Office of 

### Comprehensive Planning Departmentof

### Economic and 

### CommunityDevel opment 

## 2896800 orcontact yourregional 

### plan ning council 

### Purchasing Rights ofAccess
As suggested 

### by the 

### Court one ofthe

### ways to secure general recreational shoreline access is for the 

### town 

## or state to acquire the 

### land either

### by purchasing it 

### from a willing seller or 

### by using eminent

### domain to take it from an unwilling seller in exchange for the 

### payment ofjustcompensation Another variation is for the 

### town to purchase only an easement over the land for recreational uses not the land itself

### The purchase ofland 

## oran

### easement is an 

### ef fective 

### way to guarantee public access 

### The obvi ous 

### drawback is the cost 

### However for 

### key parcels where a permanent solution isdesired the public 

## may determine that the benefits justify the investment
There are State programs designed to help communities acquire and develop shorefront land to improve public assess For

### example Water front Action grants and 

### Land and 

### Water Conserva tion 

### Fund grants are available through the Office ofComprehensive Planning Department of

## Eco nomic and 

### Community Development 

## 2896800 The Bureau of Parks and Recreation in the Department of Conservation 

## 2893821 admini sters Boating Facilities Program grants for

### acqui sition 

### and improvement ofboat access sites

In addition 

### The Land for 

### Maines Future 

### Board

## 2893261 administers astate 

### bondfunded program to acquire lands with state significance including 

### some lands providing coastal access


### Trading 

## Town Lands One variation 

### on the purchase of land with 

### money is to trade parcels of

### town

## owned land 

## or public rights to use 

### land fordesirable access sites oraccess rights 

## Some ofthe land available for trade 

## may be identified in advance in a shoreway access plan and incomprehensive plans but other opportunities will present themselves as 

### more research is

### doneon land in anticipation of

### develop ment
For 

### example the trade 

## may involve the 

### town releasing its unclear rights to certain land in a proposed subdivision

# eg an old street that 

## may or

## may not have been properly dedicated to the public in exchange for the developer clearly conveying an easement granting shoreway access and shoreline use to a particular group 

# eg li censed 

### clammers and 

## wormers Other transac tions

## maybe a 

### more straightforward 

### swap ofone piece of

### town land for another which is 

### morefa vorable for shoreway recreational 

### use In either 

### case the 

### town will need to

### work with appraisers and attorneys to evaluate the advisability of a trade



### 6 Lease orLicense

Instead of actually acquiring an ownership interest in property a 

### community 

## may be able to negotiate an agreement 

### which allows the public 

## or some portion of the public to use land for shorelineaccess and recreational 

### use If an agree 

### ment can be reached this option is often less expensive than acquisition 

### The document spelling out the rights and 

### re sponsibilities can be extremely flexible in 

## ad dressing unique issues including 

### what would trig ger a termination of the 

### agreement specific 

### re strictions 

### on public 

### use protection from liability and maintenance responsibilities 

### However this 

## may be a relatively shortterm solution and is dependent 

### upon the 

### owners willingness to enter into an 

### agreement The agreement negotiated 

### but not accepted at 

### town meeting by the 

## Town of Wells 

### see endnote 

# 7 is one 

### exampleof

## how this technique could be 

### used Right

## of

# Way Rediscovery Projects

In addition toseeking 

### new points ofaccess it is important for towns to inventory and safeguard already existing public access rights 

## A Right

## of Way Rediscovery Project is a systematic 

## commu nity effort to research and reassert existing legal rights ofaccess which have been neglected or are uncertain
Public rights to roads which run to the shore and shoreline parcels 

## may have been acquired through the years 

### by the 

### town laying out and voting to establish a 

### road bythe 

### town accepting a road which 

### was dedicated 

### offered by a private 

### ownerordeveloper 

### bytown purchase ofa parcel through gift 

### byprescriptive 

### use orthrough acqui sition 

### by lien for

### nonpayment of real estate taxes 

### Sometimesthe 

### town loses track ofthose rights

## es pecially as use patterns 

### change Forexample a public road to an old ferry landing 

## mayhave fallen into disuse 

### when a bridge 

### was built But public rights might 

### remain Careful research in public records 

## may allow the 

### town to 

### document continu ing public rights and to reclaim a site for public 

### use
For further information or a

### copy of 

## Maine ShoreAccessPublic Access Series Coastal 

### Rightprinciple of adverse possession that is 

### open continuous notorious and uninternipted use of private property for a certain period oftime 

## 20 years in 

### Maine under a claim of right adverse to the

### owner will create a prescriptive easement to continue such use Such an easement forpublic use 

### may also be created byimplied dedication where the owner clearly acquiesces to public use and the publics enjoyment has lasted for such a length of time that the public would be materially affected by a denial or interruption ofthe enjoyment 

### Town of Manchester 

### v Augusta County

### Club 477 

## A2d 1124 

## Me1984 Finally
it has been argued but not conclusively settled in 

### Maine that public rights

### may also be acquired by local

### custom where public use ofthe beach or property by

### common consent and uniform practice ispeaceable free from dispute and continuous 

## so long as the

### memory of

### man runneth not to the contrary 

### 46212d 671 

## Ore1969 7 In fact in 

### 1989 the 

### Town ofWells had 10 ofthe 126 lotsalong 

### Moody Beach appraised to assrss the possibility ofacquiring the intertidal portion of

### Moody Beach through the use ofeminent 

### domain That appraisal valued the intertidal area ofthe 10 lots at

### $516000 If representative of values for the other lots it was projected that it 

### 17 Marshall

## v Walker 93 

## Me 53245 

## A497 would cost approximately 

### $65 million to acquire 

## 1900 the entire intertidal portion ofthe beach In lieu ofproceeding with acquisition ofthe land the 

### Town and beachfront property owners negotiated a revocable license that would allow residents and homeowners ofWells their accompanied guests and specified seasonal residents to 

### make daytime use ofthe area of

### Moody Beach below the high tide line for quiet recreational pursuits This negotiated license was rejected by voters at the town meeting in 

### March 1990 

## 8 Bell

## v Town ofWells 557 

## A2d 168 169 

# Me 1989 

## 9 Barrows 

### v McDermott 73

# Me 441449 

## 1882 10 Moore 

## v Griffin 22

# Me 350 356 

## 1843 Hill 

## v Lord 48

# Me 83 86 

## 1861 Marshall

## v Walker 93

# Me 532 

## 53637
11 Mathews 

## v Treat 75

# Me 594 

## 1884 12 Andrews

## v King 124

# Me 361 

## 1925 13 Id at 

### 364
14 French 

## v Camp 18

# Me 433 

## 1841 15 Bell

## v Town ofWells 557 

## Aid 168 17576
16 Storrer 

## v Freeman 6

### Mass 435 

## 1810

18 WelVeet 

## v Glaze403 

### Mass 79 July

## 20 1988

Prepared bythe University ofMaine School of

## Law Marine 

### Law Institute
Produced by the Sea Grant Communications office through a grantfrom the National Oceanic and Atmospheric AdministrationSea Grant College Program 

### Award Number 

## NA89AADSG020

Additional copies are availablefrom Sea Grant Communications 30 Coburn Hall University of

### Maine Orono

## ME 04469 orthe University ofMaine School of

## Law Marine 

### Law Institute 246 Deering 

### Avenue Portland

## ME 04402 

# Si 1q45 E 

## =

University ofMaine University ofNew Hampshire Sea GrantCollege Program 

## E

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