McGarvey v. Whittredge
28 A.3d 620
Me.2011Background
- McGarvey and Kleintop own intertidal land along Passamaquoddy Bay; Bird operates a commercial scuba business and crosses McGarvey’s intertidal land to reach the ocean; the dispute concerns whether such crossing is a public right of use of intertidal lands; the Superior Court held public crossing for scuba is lawful under public trust rights; the issue is framed as Maine common law governing intertidal ownership and public trust; the opinion reviews historical development from Colonial Ordinance to Bell II and Bell I and applies them to scuba diving.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the public has a right to cross intertidal land to reach the ocean for scuba diving | McGarvey argues crossing intertidal land is not public right | Bird relies on public trust extending to navigation | Yes, public crossing for scuba is permissible under Maine common law |
| Whether Bell II’s three uses constrain or permit broader public rights such as scuba diving | Public rights extend beyond fishing, fowling, navigation | Bell II should limit rights to enumerated uses | Public trust rights may be broader than enumerated uses and accommodate scuba diving |
| Whether stare decisis prevents expanding public trust rights beyond Bell II | Bell II should expand to modern uses | Overruling Bell II would undermine stability | Court favors gradual evolution, respecting Bell II while allowing development |
Key Cases Cited
- Bell II v. Town of Wells, 557 A.2d 168 (Me. 1989) (public trust rights broadly interpreted but not a general recreational easement)
- Bell I v. Town of Wells, 510 A.2d 509 (Me. 1986) (recognizes Colonial Ordinance incorporated into Maine law; private intertidal ownership subject to public rights)
- Marshall v. Walker, 93 Me. 532 (1900) (public rights in intertidal land expansively construed)
- Andrews v. King, 124 Me. 361 (1925) (public right to land on intertidal for navigation; includes incidental uses)
- Deering v. Proprietors of Long Wharf, 25 Me. 51 (1845) (public may pass freely to lands of others after landing; public rights ancillary to navigation)