The news-democrat. (Providence, R.I.) 1906-1909, 1907-05-09

a
cision has been handed down by Cfnei
Justice knowiton OF tho supreme eour,
OF Massachusetts, In the case OF bu.ieI
sns'stra,r u deaS or wt tIuo To 70
beach. rights OF public oatilhs'
navigation" and towing =,
IL is OF particular interest, however 10 70
the people OF Rhode Island. where so
much OF the land abuts on ocsan. bay or
river. and seems 10 settle afrirmauvey
the much vexed question as To whether q
man who owns beach property mas INC INC
right to the use or that proP*Hty 10 ia"
exclusion OF the general public
That this materially enh3noes the Hal-
uatlon OF such property 10 private own
ers as II adds immeasurabiy 10 i's az az
tractvenoas as a home investment, goes
There have been decisions in this state.
but mono so fun as the following:
This ia "A petition for the registration OF
n title 10 an estate on the seashore' at
Kay View. Gloucester. The premises IN
clude a vacant, unimproved, SANDY
beach. not exceeding 100 rods In width
over which tho tide Gibbs and flows. Ques-
tions arose az the hearing In regard 10
rights. claimed by owners OF neighbor1ng
estates along the shore, and by the AZ
tornay- general in behalf OF the genera
public to uea the beach for bathing, nsh-
Ing. fowling. navigation and for general
purposes. REQUESTS for rulings were
made by both parties, ana the )unse @ ol
the land court ruled as follows i. 30
much OF the locus as lies below mean
high water mark is subject 10 the pubic
rights In regard TO navigation ana TO the
right in the general public, at any state
OF the tide, OF nshing and fow1ing there
on 2. These rights do not carry Will
them any right TO cross the locus apoee
mean high water mark. g. Ihere ~ ho
public right OF bathing on the locus y
There Is no public right 10 cross llIe
beach or shore for any purpose other
than navigation. fishing or rowing 10
the refusal 10 rule as reques.eu ~ ,s,-rn,,' ,I,'
fh.
general excepted. and tho petitioners eA
cepted TO the ruling that the seLesa ia a.
public have a right 20 use the peach Iol
fowling The principal questions arsueu
hefore ms are whether the public have a
right 10 use the premises between hIgn
water mark and low water nlark 10,
bathing and fowling. or for either OF
these purposes
NO BATHING RIGHT.
The answers 10 these questions depend
SIMON the common law as modified by the
colonial ordinance OF l64l-4T Ihe most
.mportant part OF the argument has been
in regard TO bathing The law or Eng
land on this subject was dlscusseu az
rrear length and with much learning IN
Blundell V. Catterall, 3 b. ana Ala IoN
and Il was held. by three or the iouS
Judges, that at common law there is no
nublic right OF bathing In such way
as 10 make any use OF the land on 'hs
seashore between high water mark ana
low water mark. Although this decision
has been criticised, II has peen 'tenteu
by the courts and by most text Wr'N.s
ms settling the law. IL was UNANIMOUSLY
affirmed in the recent case or brlnck-
man " Matley Q9o) Ch. 3lS. III we icl-
low the decisions in England we therepy
settle this part OF the respondent claiill'
Sec shirley V. Bowlby. l52 L. :. j, ~, 70
In considering the colonial ordinance OF
1elt-z7 and the cases which nave peen
oecided under IT, we find continuation OF
this view The ordinance is treated a
scttling the common law or Massachus-
stts and as embodying the local law as
,a Inc ,us priyatum, which In England
ts renresented by the Crown, and the JUS
r,ihllc,lm, which Is there represented py
fhe narliament, both OF which IN thls
country are subject TO the exercise Oh
locis,ative power Com V. CharlestoWh
! pick. $50. is3. 1sl, 1856: Drake V. curtis,
Cush So 9s: Weston V. sampson Iusn
$50; Com " Roxbury. Gray 1Jl, fs' ts,'
In tho first part OF the ordinance pubic
rights are secured. for householders, 10
free fishing and fowling wherever the sea
ebbs and flows. In the latter part OF tne
ordinance, private ownership, supJect TO
the right OF navigation and other pupnc
rights. Ia extended TO low water marx
wnere the sea doth not ebb above leo
Surther" In tide water. above low water
mark. no other public rights are mention
cd except as against public rights. which
arc protected for the benefit of the peo-
Die. private ownership is made perfect.
NOT LIKE PONDS.
The provisions and the conditions In
~efertnce to land under tidewater are
different from those that pertain to great
ponds. In these the entire proprietorship
is kept In the state for the benefit OF the
public, and unless granted by the legis-
iature or by n town under Its authority
they are TO be appropriated 10 such pub
lie uses as the progress OF civilization
and the increasing wants OF the commun-
ffy properly Atty Gen. V. Herrick. ante;
West Roxbury V. Stoddard. Allen 15S;
Iittrger ". Eames. 12l Mass. $50; Slater
v. Gum, l70 Mass. 800.
In the seashore the entire property, un-
Aef-tAe colonial ordinance -is-iHth indi-
vidual, subject to the public rights. Com.
v. Alger. Cush. IS; Com. v Roxbury,
. Gray, s92 Weston V. Sampson, Cush.
2fT; Marshall v. Walker. 20 Maine, $50.
bS6 See also other cases above cited.
Among these is OF course the right OF
navigation. with such Incidental rights as
pertain thereto. We think that there Is a
right TO swim or float in or upon public
waters as we'll as 10 sail upon them. But
we do not think that this includes a
right TO use for bathing purposes as these
words are commonly understood, that
part of the beach or shore above low wat
or mark where the distance to high water
mark does not exceed one hundred rods.
whether covered with water or not II Is
plain we think that under the law OF
Massachusetts there is no reservation or
recognition OF bathing on the beach as a
separate right OF property in individuals
or the public under the colonial ordinance
FOwLLNG RIGHTS.
The right of fowling was expressly men
fioned in the ordinance OF 1e4l. and was