Bell v. Town of Wells

BELL, Edward B. et al. WELLS, et al.

TOWN OF

Supreme of Maine. Judicial Court

Argued 21, 1988. Sept. 30, 1989.

Decided March D.

Sidney (orally), F. John St. Thaxter Gleason, McHold, L. Lawrence C. Sharon Curtis, Thaxter, Walden, Nancy Ziegler, C. Micoleau, Portland, Stevens, Broder & Haskins, Hancock, George plaintiffs. L. for Brett, Burrows, Todd De- Tybe Orlando Rieser, University of Maine logu, Alison Institute, of Law and Marine Law School Portland, amici curiae. Gen, Tierney, Paul Stern Atty.

James E. Atty. Gen., D. War- (orally), Asst. Thomas ren, Gen., Philip Ah- Deputy Atty. F.W. rens, III, Gen., Augusta, Deputy Atty. Bureau of Lands. State Public Healy (orally), T. William C. Michael Dana, Portland, Knowles, Verrill & of Wells. Town Richardson, Lyn L. Barri Harrison Stouder, Bloom, Elizabeth G. Richardson & Portland, Emmet, Troubh, Richard Everett Carson, N.R.C.M., Augusta, for B. Conser- and Natural Re- Law Foundation vation Council Maine. sources Baird, Austin, Jensen, Ralph Gardner W. Kennebunk, Henry, guardian ad litem. & C.J., McKUSICK, Before ROBERTS, GLASSMAN, WATHEN, COLLINS, CLIFFORD, HORNBY and JJ. the

McKUSICK, property rules of law dictate lished Chief Justice. Moody at plaintiff oceanfront owners in 1984 quiet In their title action initiated in fee to intertidal land Beach hold title Wells, the State Bu- against the Town easement, broadly con- to an be subject Lands, and various individu- reau of Public strued, only for fish- permitting public use als,1 other owners of Edward B. Bell and (whether ing, fowling, and Moody Beach in by the sea at land bounded business) any other uses and recreation sought judicial declaration a Wells2 or related thereto. reasonably incidental limiting public may injunction the use the Although contemporary public needs After a make of the beach. four-week broader, (York trial, clearly much Superior Court Coun- recreation are bench Brodrick, J.) legislature simply on en- ty; October cannot courts and the plaintiffs’ favor declar- judgments rights tered long-established property alter these legal Moody ing the state of the title to needs; new recreational to accommodate so, doing the court Beach. reviewed taking prohibitions on constitutional governing applied rules of compensation property without 3 Maine, ownership of intertidal land considered. On this basis we must be the Public Trust Intertidal Land declared conclusion agree Superior Court’s with unconstitutional, a factual Act4 and made Land Trust in Intertidal the Public acquired had determination Act, declares an unlimited Moody by Beach local no easement over land for to use the intertidal ap- present custom or otherwise.5 On “recreation,” Finally, is unconstitutional. peal,6 affirm. public ease- the record in this case no on proven custom has been by ment local agree Superior Court’s We Beach,7 assuming Moody at even legal exist of the state of the title declaration —as case —that firmly need not be decided this Moody Long Beach. estab- (Supp.1988), enacted Originally §§ all users 4. 12 M.R.S.A. 571-573 1. named as defendants were litigation by during pendency P.L. of this plaintiffs’ property persons other than claim- 16, 1986). (eff. July ch. 782 ing under instruments recorded in the York County Registry Superior The of Deeds. defendants, relying in addition to on 5. At trial granted status as intervenor-defendants custom, asserted that the doctrine of local Natural Conservation Law Foundation and the acquired intertidal had to use the Maine, Resources Council of and also to about easement on the doctrines of zone based (known defendants) as Tier II 40 owners Supe- prescription implied The dedication. on the other side of non-oceanfront lots located prescription rejected also rior Court Moody Beach. Ocean Avenue claims, pursued party and no dedication appeal. those issues on Moody 45 oceanfront lots at Beach 2. Owners of joined appeal with in this 6. All defendants action, originally joined plaintiffs in this but exception See n. 1 of the Tier II defendants. convenience, litigation the owners of 17 in the course of the opinion refers this above. For plaintiff withdrew or were dismissed. lots appealing as the collectively defendants remaining appel- lots are now owners of the comprehen- We have received Town of Wells. this court. The case authorities lees before appeal- reply briefs from all sive briefs and variously refer to the holders of title to briefs defendants, amicus as an extensive as well oceanfront, riparian, upland, such lots position supporting defendants’ brief curiae owners. littoral associated with named individuals from University of Law and the of Maine School affected Intertidal land means ‘land ... 3. Institute. Marine Law high the mean watermark tides between high water- 100 rods seaward from the either on local cus- their claim based watermark, is the mean low whichever dry mark or sand area as to use the asserted a tom 12 M.R. mean watermark." closer to the Tier II At trial the intertidal zone. well as the (Supp.1988). acquired That definition derives a S.A. had asserted defendants directly of 1641- interti- personal from the Colonial Ordinance to use the private and easement I), Beach, (Bell regardless Moody of whether Bell v. Town Wells 47. See dal zone at right. (Me.1986). large enjoyed a alternative such At times the claim, "flats," "foreshore," rejected and the Tier their are and “beachfront” terms joined appeal. II defendants have used. acquired encompassed then the areas now known as easement be Maine a Ogunquit, Moody, local custom. and Wells Beaches. privately over owned place activities took Recreational The Facts Kennebunk, Cape Elizabeth and beaches similar Dr. Churchill inferred that ac- sandy located Moody Beach beach beaches of Wells in tivities occurred It is within the Town of Wells. about Churchill, however, century. Dr. the 19th long Moody mile and lies between Point on to recreational specific found no reference north, Ogunquit town line on the particular in area now known activity south, east, on the and a the Atlantic Ocean Moody Beach. as Moody Beach has a seawall on the west. strip dry wide intertidal zone with a regarding more recent testimony The high water mark. sand above the mean Moody Beach public recreational use privately hundred owned More than one conflicting. Defendants’ witnesses Moody lots front on the ocean at Beach. they always had considered testified that addition, past in the In the Town of Wells public and that the had Moody Beach acquired by three lots eminent domain general recreational used the beach which it uses for access to the ocean. remem- long they could purposes for as plaintiff Each now the court owns a before evidence, however, the the whole ber. On cottage on one of 28 house or situated Superior found: Court lot is private oceanfront lots. Each about only open and continuous on the west 50 feet wide and bordered exist in this case for proved use to ... trial, stipu- parties Ocean Avenue. At filing of this years preceding the 20 plaintiff owners lated that the oceanfront (and public’s was the lawsuit ... in their parcels hold title to the described matter) consistent plaintiffs’ that that their simple deeds in fee absolute and length strolling up and down habit of parcels on the Atlantic were bounded plaintiffs All of the Moody Beach. beach, A known as Ocean. now willing perfectly testified that were Beach, immediately Ogunquit lies this, complained about it permit never Beach; Village of Moody south this activi- permit and would continue acquired that eminent Ogunquit beach future. ty

domain 1925. regarding at trial the histo- The evidence I. Moody ry recreational use Privately The Public Easement inconclusive. Dr. Edwin Beach was Not Ex- Land Does Intertidal Owned Churchill, of the Maine State chief curator That Reserved Beyond tend Museum, to 17th cen- testified that visitors Broadly Con- Colonial Ordinance a tury used the beaches and number Maine strued operating in the Wells area of hotels were Fee Title Upland A. Owner’s century. An half of the 19th

by the latter Land Intertidal specifically refers to history of Wells case, we exam- appeal in this is much On the first “large hotel beach historical sources ined in detail the by persons who are patronized in summer ownership of governing the bathing.” legal regime Dr. in search of sea air v. Town in Maine. Bell ques- intertidal land the beach testified that Churchill 7).8 (Me.1986) (Bell Wells, that Wells Beach tion was Wells Beach but quiet complaint, plaintiff party, title actions filing pensable and that the Shortly their after join the State of the doctrine of sover- owners moved to barred oceanfront were therefore Superior necessary party and the eign immunity. Maine as granted In June 1985 the the motion. 515-18, I, vacated that A.2d at In Bell 510 moved to of Maine and other defendants State dismissal, holding plaintiff own- oceanfront grant- quiet plaintiffs' title actions. dismiss State, ers, presumptively hold fee and not the motion, held that of the Colo- land virtue title to the intertidal rights Moody the State was trustee Beach, State is not "a nial Ordinance and State an indis- this interest made the legal research- common law from the Colonial Ordinance The elaborate and historical prevail in Maine: did not es reflected in the briefs filed extensive 1810 decision in appeal Ever since Storer with us on this second fail to demon- [the before, ], long Freeman as well as any error in the conclusions we strate point has been considered law on ago. years reached less than three rest; and we do not feel perfectly Long before 1820 it was established liberty it as an ourselves at to discuss Massachusetts, applica- the common law of open question. territory including Dis- ble to its entire Bank, Lapish Bangor Maine, trict of that the owner of shoreland added). (1831) very next (emphasis presump- above mean water mark year Supreme the Massachusetts Judicial tively held in fee title to intertidal Court, speaking through Chief Justice fish, public’s right subject only Shaw, vesting of the rule fee stated owner- fowl, navigate. Free- See Storer v. ship upland land in the owner: of intertidal man, (1810) C.J.) (Parsons, 6 Mass. 435 being question rule in ... a settled [T]he (involving Cape in land in Elizabeth the property, extremely rule of it would be Maine). gov- District of That rule titles, injurious stability to the and to erning origin titles to intertidal land had its peace the and interests of the communi- Ordinance of 1641-47 of Colonial the ty, seriously question. in to have drawn Bay Colony long Massachusetts before 255, Bates, (13 Pick.) 30 Barker v. Mass. separation the of Maine was received into (1832) (Colonial applies Ordinance in long by the common law of Massachusetts Colony).10 territory Plymouth of former usage practice throughout jurisdic- McDermott, 73 Me. See also Barrows v. tion of the Commonwealth. Id. at 438. (1882) (rule property law derived Then, by X, force of article section 3 of applies in Pis- from the Colonial Ordinance Constitution,9 originally property cataquis County, though Maine rule was even Colony). of the Acadia confirmed the law of the new State of later, Only years Maine. this court pioneer Supreme opinion speaking through Chief Justice Mellen cat- rights, property Shively Bowlby, coastal v. egorically rejected argument 1, 548, an 14 S.Ct. 38 L.Ed. 331 U.S. (1894), formerly by Gray, Justice rule of real law taken into written that, adoption entirely clear since the trustee easement in the intertidal [I]t ordinance, land, Moody colony every grant of zone at Beach." Id. at 517. In remand- Court, cove, sea, creek, bounding upon to the we stated that the or or sea, “may including Town of Wells and the other defendants and either in terms arm mark, by proof public right, bounding if at trial establish the the land flats to low water or water, any, scope upland, granted to use the and the sea or salt with no public right restraining operation to use the intertidal zone." Id. at limiting terms suggested Attorney General could 518. We grant, and flats have and where the land represent convey- remain in the case to inter- by any intervening not been severed ance, est. Id. at 519. legal pass estate has had the effect to grantee, subject to a limited in fee to the X, section of the Maine Constitution 9. Article way for boats and vessels. originally today: read and still reads Justice Shaw also noted: Id. at 80-81. Chief State, All laws now in force in this and not by principles have been affirmed The same remain, Constitution, repugnant this shall supreme court of of decisions of the a series force, repealed by and be in until altered or Maine, of the United and the circuit court Legislature, expire own or shall their Maine, holding principles of States limitation. colony ordinance have the Massachusetts provision the Massachu- This is derived from adoption, by usage been established Separation, ch. setts Act of Mass. Laws state. long common law of that held as the I, 10. 161. See Bell 510 A.2d at 514 n. 106; Dunlap Pickering, v. 7 Greenl. Knox v. 366; Stetson, Bangor Lapish v. 4 Mason Justice Shaw also authored Common- 10. Chief 85; Bank, Taylor, (7 Cush.) Emerson v. Alger, 8 Greenl. 61 Mass. wealth v. 42; Shep. Long Wharf, Deering leading construing applying Colo- case Greenl. Alger emphasized title the fee nial Ordinance. upland Id. at 79. owner in intertidal land: held Chief ‘equal footing’ doctrine,”12 Justice the Massachusetts Su- a doctrine Court, preme emphasizes Judicial recently that has been most discussed by uniqueness of the Maine11 and Massachu- Supreme United States Phil- legal setts governing rule title lips to intertidal Mississippi, Petroleum v.Co. 484 U.S. land or flats: (1988).13 108 S.Ct. 98 L.Ed.2d 877 Any history such revisionist view of Massachusetts, comes by virtue of an an- years. too late at least 157 Lapish See enactment,

cient commonly colonial Bank, Bangor 8 Me. at 93 Prior called the really Ordinance of but separation the Commonwealth of passed Massa- remaining in force to already granted upland chusetts had day, the title of the owner of land fee owners title the intertidal land within bounded tide water extends from territory including its entire the District of water mark over the shore or flats to low Contrary argument, Maine. mark, to the amicus water if beyond one hundred nothing pre-1820 there Massa- rods. thus created in governing chusetts common law title to the easement, the flat is not a mere but a repugnant intertidal zone that was fee, title in support which will a real action, constitution of already the new State. As or an trespass quare action of noted, repugnance, absence such arti- fregit, clausum may be con- X, cle section 3 of the veyed by its Maine Constitution owner with or without upland; declared that in force in and which he all laws the Dis- build enclose, provided trict Maine in 1820 remain in impede he does not would public right way force in the over it for new State. See n. above. boats or Furthermore, X, subject vessels. But his title is to the article section 5 of the public rights navigation fishery; new Maine Constitution declared: therefore, long so as the flats have grants All of lands ... which have enclosed, not been built those been said ... made Common- public rights are not restricted or Massachusetts], wealth before the [of abridged_ It is because of the ordi- separation of said District [of Maine] vesting nance the title in fee of the flats having place, shall take ... effect in upland, the owner of the that a con- district, within the said shall continue in veyance bounding of his land on the tide force, full after the said district shall water, name, by whatever whether separate become a State. “sea,” “bay,” “river,” “harbor” or has Separation, See Massachusetts Act of been held to include the land below 1819, 161, Mass.Laws ch. 1 Seventh.14 grantor water mark as far as the owns. Phillips in Petroleum decision 1988 in 18-19, (citations Id. at 14 S.Ct. at 554-55 way plain carefully no contradicts the omitted). explained Shively decision in 1893 in v. 18-19, of the brief amici curiae contends 152 14 Bowlby, U.S. at S.Ct. at coming 554-55, that the State of on Maine into the and Maine Massachusetts had separation Union on pow Massachusetts much earlier exercised their statehood “obtained title to its intertidal lands under ers over their intertidal lands and had Gray "equal footing” 11. Justice wrote: 13. The doctrine is based on the principle that new States enter the Union on an principle The rule or of the Massachusetts equal footing original with the thirteen States. adopted'and practised ordinance has been Maine, Plymouth, Nantucket and Martha’s Separation provid- 14. The Massachusetts Act of Vineyard, since their union with the Massa- incorporat- ed its own terms that it would be Colony chusetts under the Massachusetts Constitution, ed into the Maine where it re- Province Charter of 1692. X, mains in force as article section 5. The text 1, 19, Shively 548, Bowlby, X, v. 152 U.S. 14 S.Ct. of article section 5 is omitted from modern (1984) (emphasis added). Constitution, 555 printings of the Maine but is to be found in the text of the Maine Constitution argu- Maine, 12. The Town of Wells makes a similar prefixed to the 1820 Laws of the 1821 (vol. 1), ment. Laws of Maine and Revised Statutes of 1841, 1857, and 1871.

173 adopted very navigate privately rules of real owned land for prevailing many pleasure different from those as for as well business or sus- McDermott, —-, tenance, Barrows v. other states. 484 U.S. at 108 S.Ct. at 73 Me. at 799, 449; 98 L.Ed.2d at 890. ways given and we have other sympathetically generous interpretation to sum, long we have since declared that encompassed what is within the terms Maine, Massachusetts, upland as in “fishing,” “fowling,” “navigation,” ample owner’s “title to the shore [is] reasonably incidental or related thereto. Wilson, State v. upland.” 42 Me. example, operator power For of a boat Walker, (1856). also v. See Marshall may pick up passen- hire and land his 532, 536, (1900) (“the Me. 45 A. land, Andrews v. gers on the intertidal proprietor of the main holds the shore ... (1925); King, 124 Me. 129 A. 298 fee, lands, however, subject, like other “navigation” also includes the to trav- publicum, jus of the waters, Camp, French v. el over frozen purposes use it for the and of (1841), Me. 433 to moor vessels and dis- fishery”). land,

charge cargo and take on on intertidal B. The Public Easement Wilson, Reserved and, State v. 24; Me. at after

Intertidal Land landing, pass freely “to to the lands and houses of others besides the owners Starting prop with the rule of real flats,” Deering Proprietors v. Long erty pri law that title to intertidal Wharf, Similarly, 25 Me. fee, vately held in only question broadly “fishing” construed to include presented by present appeal is the worms, Lemar, State v. digging scope that the common law (1952),clams, State 87 A.2d 886 pri reserved to the to use that Leavitt, 105 Me. A. vately owned land. That reservation of Ldbbey, Moulton shellfish, public rights, which we have denominated however, never, We have decided a I, easement, 516; Bell 510 A.2d at Mar question scope pub- of the intertidal Walker, shall v. 93 Me. at 45 A. at except lic by referring easement 499, derives its definition from same specific public three uses reserved granted Colonial Ordinance that the fee to “fishing,” Ordinance. The terms “fowl- upland Barrows owner. As said in we ing,” “navigation,” interpret- McDermott, liberally 448, 73 Me. at “[w]hen ed,16 public’s right delimit the to use this statute or [by ordinance has thus communi privately land. ty owned acceptance practice] become a State, of the common law of a it must be general Plainly the recreational easement regarded adopted entirety....”15 in its claimed the Town of Wells cannot be encompassed justified as within or reason- The Colonial Ordinance as received into ably fishing, fowling, naviga- related to or common law of Maine and Massachu- attempt granted setts reserved out of the title tion. The Town of Wells does fee Instead, argues upland public only any justification. owner a such easement fishing, fowling, navigation. public rights fishing, fowling, We that the fish, fowl, exclusive; public have may navigation held that the are not Although Superior Cape Court found as histori- title to intertidal land in Elizabeth in the Maine, cal fact that the framers of the Colonial Ordi- Ordinance in its District of Colonial public nance did not intend to curtail use of entirety compass had been received as the full the intertidal zone that time was current at the applicable principles. common law See Stor- cattle, driving resting for travel and for Freeman, er v. 6 Mass. 435 Superior Court also found: inci- 16. Even a liberal construction of what is right by necessity usage apparently This fishing navigation dental to does not author- long enough formally did not survive to be temporarily ize an ... "ice-cutter to incumber approved by the courts as a common law scraped right.... another’s flats with the snow from his Co., Haynes McFadden v. & DeWitt Ice At least when the Massachusetts Su- ice.” 319, 324, preme Judicial Court declared the state of the 29 A. public rights justices an curiae before the listing does not exhaust the amicus Supreme by the common law out of the Massachusetts Judicial Court retained they considering ques- upland own- 1974 when were interest vested points scope public tion of the of the easement in er. The Town to evidence colonial swimming argument use of beaches for and football the intertidal zone. That was games. and other We do not find the itself, argument persuasive. By

Town’s interpret should the colonial ordi- the historical fact of recreational activities vesting to allow nance as ... land, privately on owned whether intertidal significant public uses the sea- all land, says or other little as to who was fishing, fowling shore[;] that while engaging in those activities or what was navigation may exhausted those any legal rights public scope change uses uses in these inconsequen- to be there. Activities of an with time and now must be deemed to tial and nature —even if nonintrusive important public include interest might well were fact recreation. activities— participation acquiescence have had the Justices, Opinion 365 Mass. owners, as the (1974) (stating 313 N.E.2d regard Court found the case curiae, argument unanimously of amicus modern-day strolling length of justices). rejected by the Massachusetts event, Moody Beach. all the cases the unanimous Our answer is the same as recognizing in Massachusetts and Maine justices: opinion of the Massachusetts principles the common law of intertidal grant a fee interest] “[T]he [of property interests Ordi- read Colonial parties colonial ordinance effected having nance as restricted the reserved interpreted provide has never been fishing, fowling, and easement only uncertain and littoral owners such example, navigation and related uses. For ephemeral rights as would result such Walker, this court in Marshall v. 93 Me. at interpretation.” Id. No decision ei- 498, declaring 45 A. at the nature of ther or the Massachusetts court the Maine jus publicum in the intertidal land as open-ended interpreta- supports any such “the to use it for the privately tion of the uses to which purposes fishery,”17 and of subjected. may owned intertidal be only to those set forth activities related where a reported Maine has no case specified following oft-quoted uses in the general claim easement summary: bathing, sunbathing, and such as recreation them, may may Others sail over moor walking privately intertidal land owned them, upon craft allow their their accept We cannot has even been asserted. bare, rest the soil when vessels to argument of the Town of Wells that them, upon may may land and walk authority in precise prior the absence of ride or skate over them when covered disregard open for us to Maine leaves it ice, bearing may fish in the with water and to language of the Colonial Ordinance them, dig fish in over shell water public fashion a “no more burdensome” them, them, may manure from take sea easement that will meet the undoubted ma- may not take shells or mussel but public society for more needs of modern deposit scrapings upon of snow nure or of di- recreational facilities. The absence the ice over them. is, for the authority rect Maine at best 536-37, (emphasis 45 A. at 498 add- Id. at Town, in our decision. a neutral factor ed). is no au- Plainly Marshall v. Walker Furthermore, authority case we do have permitting of interti- thority public for use deciding point guide us in squarely on purposes. general recreational dal land for question presented to us in Maine time. Two Massachusetts Su- argument, A made the first related also cases, in 1907 Wells, decided put preme forth Judicial Court Town of is one that was "fowling" not intentional. the court’s omission of 17. Of course as well as the 1974 unanimous dered a opinion well reasoned walking advisory opinion justices of its quot- that is along privately land, owned intertidal ex- above, ed have considered the ques- cept exact to the extent it is fishing, incidental to tion raised appeal ruled fowling, navigation, does not fall within adversely to the claim now made easement reserved out of the Town of Wells. grant private ownership by the Colonial Opinion Justices, Ordinance. General, Butler Attorney 195 Mass. Mass. 313 N.E.2d 561. The Massachu- (1907), 80 N.E. 688 held justices unanimously setts informed the easement intertidal land does not extend Representatives Massachusetts House of public bathing. The Massachusetts proposed creating that a statute “public court noted that the Colonial Ordinance right-of-passage” on-foot free along the public rights mentioned no except for fish- state’s seashore high between the mean ing, fowling, navigation. It reasoned water line and the extreme low water line as follows: would taking constitute an unconstitutional property, the seashore the entire un- 689-92, property. Id. at ordinance, der the colonial is in the indi- N.E.2d 568-69. vidual, subject public rights. is, course,

Among right these The Maine defining common law rules navigation, property such incidental interests in intertidal pertain thereto. We think that there is a come from the same Colonial Ordinance upon public to swim or float in or source as the Massachusetts common law waters as well as to sail them. But rules on that subject, and the Maine case we do not think that this includes a development subject sig- on the no bathing to use purposes, as these respect departed nificant from that in Mas- understood, commonly words are sachusetts. need for access part of the beach or shore above low along certainly strong the seashore was mark, water where the distance to in Massachusetts in today. 1974as Maine water mark does not exceed one hundred circumstances, In these the three unani- rods, whether covered with water or not. opinions, mous addressing Massachusetts plain, think, It is that under the law precise issue here raised in Maine for of Massachusetts there is no reservation time, persuasive precedent the first are recognition bathing on the beach as the case at bar. separate right property in individu- bathing, A easement for sunbath- als or the under the colonial ordi- ing, walking and recreational cannot be nance. justified assumption on the factual that it 83-84, (citations Id. at 80 N.E. at 689 omit- is “no more on the burdensome” ted). landowner than the Colonial Ordinance Improve

Michaelson v. Silver Beach fishing, fowling, naviga- easement for Ass’n, 251, 259, 173 ment adding Mass. justify N.E.2d tion. To a further easement held that an ground artificial beach it is “no more burdensome” plaintiffs’ property front of the self-contradictory. seashore is on face its No one by public dredging created pri suggest suggests became or could such plaintiffs by vate bathing, sunbathing, doc easement for accretion,18 trine of and held further that walking and recreational is to be substitut- the proper Fishing, defendant Association of other ed for the ancient easement. ty vicinity enjoined fowling, important owners in the should be and remain using private plaintiffs’ newly from If the created uses of the Maine coast. fishermen, fowlers, bathing purposes, “for usual has ten beach down to landowner now land, using adding mark.” in 1974 the and boaters his ten Finally, low water bathers, sunbathers, obviously justices of the Massachusetts court ren- and walkers Young, King by See 18. Much earlier in Maine we had held that the natural accretion. may of the owner be increased lands oceanfront aggregate public public makes the easement more of a easement tailored to its public need. specific Furthermore, one would ex- burdensome. magni- of comparison direct a pect seen, Thus, legal regime as we have would show burdens relative of tude ownership of intertidal land governing substitution bath- a MoodyBeach in firmly established the District of was for the fisher- sunbathers, walkers ers, to Statehood. It had been so prior Maine using the beach fowlers, boaters men, by in 1810 Massachusetts Su- declared greater much in a result fact in involving in a would case preme Judicial owner. fee upon Elizabeth. Storer v. Cape in burden land intertidal Freeman, previously 6 Mass. 435. As not- difficulties as other would A court ed, the Maine in 1820 Constitution both public easement for declaring a well grant of the intertidal land confirmed recreational walk- sunbathing, bathing, upland owners and fee to the took over in intertidal land. owned privately ing on the public law of Maine the reserved as the fall considera- hand, uses those one theOn fishing, fowling, limited to easement recreational comprehensive of the bly short Const, X, navigation. See art. §§ as the urges scope Wells Town use century ago, this emphatically a court Over need, also consid- public modem argument rejected “that the court uses to which routine erably short legal regime] if change satisfied that [that can find no We put. are beaches public operate beneficially it does not under bathing, allowing sun- for basis principled circumstances.” Barrows v. present privately owned on walking bathing, and McDermott, 73 Me. at judicial 449. The allowing picnics and land, intertidal bound, just is legis- branch much as the many other activi- frisbee-throwing and the branch, by prohibi- lative the constitutional in engage regularly people ties against taking tion no basis there But beach. compensation. for use without declaring public easement for history That would turn the recreation. general II. Moody Beach pub- into a zone intertidal indistinguishable The Public Trust in area recreational Intertidal Land lic Beach, Ogunquit Act Constitutes an adjacent Ogunquit acquired in Village entirety its Unconstitutional Taking by domain. eminent legislature, by The enacting in 1986 foregoing considerations demon- Act, Public Trust Intertidal Land why strate a court 571-573, cannot extend a M.R.S.A. declared that “the in §§ privately easement owned intertidal tertidal lands of the State impressed are beyond that reserved in the Colonial public trust,” with a id. § Ordinance defined years over 340 those “right include a history. general To declare a recreational to use intertidal land for recreation,” id. easement, the court would be engaging 573(1)(B).19 legislature imposed thus legislating, and it would do so without the all (defined intertidal land by the Act benefit of having had the political pro- in accordance with the Colonial Ordinance) cessesdefinethe natureand extent the general easement for use public ly complete- need. It would also do so for “recreation” without limitation. The practical free constraints imposed Superior Court held the Public Trust legislative branch government Intertidal Land Act unconstitutional as a the necessity of its raising money separation violation of the powers provi pay easement taken from sion of the Maine Constitution, art. III. landowners. objectives of the Town of We do not reach the separation powers Wells are better achieved tak- question because the Act takes for 19. The PublicTrustinIntertidalLand Act time too late for the Act to be an issue in that I, early enacted 1986 at a time when Bell appeal. first See n. 8 above. pending A.2d was still in this court but at a greater rights use much in the intertidal contained both our State and Federal by zone than are reserved the common law against taking Constitutions private of and therefore the Act on its face consti- property public for just use without com- tutes an taking private unconstitutional pensation. property. agree We therefore with the analysis Our and conclusion are the same Superior Court that the Act is unconstitu- under both Long ago Constitutions. tional, ground holding but we our court said: Takings violation of the Clauses of both the Takings designed [The Clause] Maine and the United States Constitutions. operate operate and it does prevent Const, Const, See I, 21; art. U.S. § acquisition title to land or to any amend. V. easement in it or to a permanent The Public Trust in Intertidal Land Act it, appropriation from an owner for creating public easement for “recrea- use, public without the payment actual tion” leaves that term both undefined and just compensation tender of a for it. unlimited—with the exceptions sole Smith, Cushman v. (1852) public may recreation not interfere (emphasis added). Opinion their 1974 any improvement with structure or lawful- Justices above, already discussed ly land, maintained on intertidal nor justices of the Massachusetts court have motorized vehicles other than watercraft be already the very question answered now used there by unless authorized the State before us. 365 Mass. 313 N.E.2d 561. municipality. See M.R.S.A. They proposed declared that a statute 573(2)(B),(D). very nature of those merely public footpath along create a exceptions emphasizes the all-inclusive zone, the intertidal a much more limited recreational easement created Act and less intrusive easement than over intertidal land owned in fee Act, that taken the Maine would consti- upland property By holders. its use of the tute an taking unconstitutional property unqualified “recreation,” term per- the Act from the owners of the fee. The Massa- mits organized both individual and recrea- justices’ reasoning chusetts precise rel- any tion of form and nature. Members evance to the case at bar: in unrestricted numbers are thus border police elusive between the given to come on this power of prohibition the State and the property, only bathing, not sunbathing, for against taking property without com- walking general recreation, but also pensation subject has been the of exten- for other recreational activity whatev- litigation commentary. sive See including, er example, for games ball Bosselman, Banta, Taking Callies & competitions, athletic camping for extended Issue But these difficulties need hours, operation (including of vehicles even permanent concern us here. The vehicles, ATVs and other motorized physical property intrusion into the municipal authorization), State or nighttime private persons, which the bill would es- parties, beach riding. and horseback This tablish, taking is a property within comprehensive easement for recrea- even the most narrow construction of sharply tion differs in magni- nature and phrase possible under the Constitu- tude from the fishing, easement for fowl- tions of the Commonwealth and of the ing, and related uses that United States. the common law alone reserved favor of It is true that the bill does not com- ownership out of the fee of inter- pletely deprive private owners of use tidal land it at the same all time vested upland property owners. The their seashore in the sense Act thus constitutes a taking taking property that a formal does. for a use. But case provides readily distinguishable Since compensation reg- the Act no is from such merely prohibits particu- landowners whose ulation as burdened some general recreational easement use taken lar or uses which are harmful to the use, prohibition public. it violates the Alger, See Commonwealth v. 178 Comm’n, 58, 825, 3141, 483 86 The interference U.S. 107 S.Ct. 97

Cush. (1987), a private property here involves L.Ed.2d 677 where California had right denial wholesale of an owner’s building permit upon conditioned a seaside public. inter- possessory exclude the If a “mak[ing] owners’ an easement meaning at property est in real has across their beachfront available to the right general it must all include permanent basis,” public on a the Court Nichols, others. Eminent Do- exclude taking, found an unconstitutional however (Rev. ed.) 3d main slight impact § 5.1[1] the adverse on the economic Mass, owners, saying: Id., 689, 365 at 313 N.E.2d at 568. “permanent occupa- physical We think a easement taken recreational occurred, purposes tion” has of that for Act owners’ by the Maine over oceanfront rule, given per- are a where individuals gov- distinguished land must be from the pass manent and continuous regulating private action land ernmental fro, property may so that the real years examined

use that we in recent traversed, though continuously be even See, e.g., Hall Takings under the Clause. permitted to particular no individual is Protection, Board A.2d Envtl. 528 permanently himself station (Me.1987) (restriction building on 453 premises. Main, 482 A.2d dunes); Curtis v. sand restrictions); 1253, (Me.1984) (zoning 1258 832, 3145, at S.Ct. at 97 L.Ed.2d at v. Maine Land Islands Land Co. Seven Teleprompter 686. See also Loretto v. Comm’n, Regulation Use 419, 102 Corp., Manhattan CATV 458 U.S. (restriction (Me.1982) on timber har- (invalidat 482-83 (1982) S.Ct. L.Ed.2d 868 “regulatory vesting). In those cases of prohibiting York law landlord New inquiry into taking” we make factual “a interfering with television facili cable substantiality the diminution val- Kaiser Aetna placed premises); on his ties Id. 482. States, ue of involved.” 164, 100 S.Ct. v. United 444 U.S. analysis inappropriate, how- That becomes (1979) (denying federal 62 L.Ed.2d ever, consti- us is the when issue before government’s public’s claim of to nav authorizes a tutionality of a statute that private pond opened to the sea igate into a As private property.20 physical invasion marina). creating a by its owner scholar written: one already The fact that the common significance physical occu- The modem easement has reserved courts, they some- pation is that while fowling, fishing, for intertidal nontrespassory injuries do hold times (even for uses navigation, related deny compensation compensable, never of that ease- though specific objects physical for a takeover. pursued as well ment be for recreation Fair- profit) not mean Utility, and Michelman, does Property, as sustenance can, compen- Founda- paying on the Ethical the State without ness: Comments landowners, Law, take Compensation” tions “Just sation general (1967) (emphasis a easement addition Harv.L.Rev. Justices, Opinion Coastal recreation.21 See In Nollanu original). California specific the ease- argues that we land burdened further involves The Town Wells taking a ask there has been ment. should not whether zone, statutory whether the of the intertidal attempt but state, guise principle under 21. The enlarge would easement law, interpreting sanction a its common cannot prop- taking upland relative to the owner’s be a another, property of physical invasion of the if erty be correct as a whole. The Town would way Supreme Court’s hold- vitiated in no ing separable intertidal zone were no interest in the Robins, Shopping Center v. in PruneYard affected, If a munici- but that is not the case. S.Ct. L.Ed.2d 741 U.S. example, imposes restric- pality, tions, setback Supreme construc- the California Court’s taking depends on the whether there is a speech free California tion of the Constitution’s regulatory impact lot as a whole taking. perpetrate The Califor- did not clause neighborhood But if regime as a whole. seeking to had held individuals nia court municipality to use all commences then shop- taking privately pamphlets owned public way, in a setback distribute of that as a 365 Mass. The com- unadapt- N.E.2d 561. local sanction were custom] public only mon law has reserved a political society ed to the conditions of easement; limited the Public Trust in Inter- here, existing have never been comprehensive tidal Land Act takes a ease- force in Connecticut. ment for “recreation” without limitation. The inclusion of “custom” in 14 M.R.S.A. any The absence of compensation to the fee (1980), providing 812 and 812-A §§ owners renders the Act unconstitutional. preventing acquisition means for “custom, otherwise,” by easements use or III. explainable legislative merely is exer- The Town Wells Has Failed to Prove a cise overabundant caution. There is a Public Easement Has Been Estab- question application serious whether by lished Dry Local Custom in the prevail- local custom doctrine to conditions Sand Area or the Intertidal Land at ing in Maine near the end of the 20th Moody Beach century necessarily consistent Superior rejected all con stability desired certainty of real estate public acquired rights tentions that the titles. Moody by Beach prescription, implied In any Superior accept- event the Court’s dedication, or local custom. The Town ance of the doctrine of local custom was Wells does not contest prescrip the court’s not essential to its ultimate decision. That tion findings, and dedication but it does founded, decision adequately without appeal finding the court’s evidence more, finding on its that the Town of Wells prove public adduced at trial fails to recrea prove had failed to at least two factual rights tional Moody established in Beach predicates usually required application local judgments custom. We affirm the doctrine, namely, of the local custom Superior Court, but we do not find it public usage long must have occurred “so necessary to decide whether the court was memory as the of man runneth not to the holding correct in that under the common contrary” peaceable and it must have been law of public may Maine the acquire by dispute. Town, free local custom an easement privately over proof bears burden of on the claim of a Very owned land. few American states public custom, point easement local can recognize English doctrine of compelled no evidence this record that easements local custom. 3See Powell Court to find that those two (1986 on Real Property Supp. If & 414[9] 1988). predicates factual are met. In these cir- The Maine case that discusses such detail, pre- cumstances the easements some Town Wells cannot Piper v. Voo rhees, 305, 311, appeal vail on from the 155 A. trial court’s ad- (1931), approval leading cites with findings. Con Hoefler, verse See Luce v.Co. rejecting doctrine, necticut case (Me.1983). Thus, Gra Walker, 130, 133-34, ham v. 78 Conn. 61 A. nothing Town of Wells takes on its local That latter case had held: argument, assuming pub- custom even opinion are of may acquire that such rules of lic an easement that means [W]e English gave common in this State. [easements ping enjoy "public proprietor center continued forum” homeowner or the of a modest retail access under the state constitution even advertising establishment. As a result of though forum doctrine under the environment, 25,000 congenial the lure of a Amalgamated First Amendment enunciated in [by proper- persons are induced the commercial Plaza, Inc., Employees Logan Valley Food ty congregate daily_’’ owner] 447 U.S. at U.S. 88 S.Ct. 20 L.Ed.2d 603 78, 100 S.Ct. at 2039. The decision affirmed in Tanner, by Lloyd Corp. had been curtailed granted PruneYard no easement or other inher- U.S. Quoting 92 S.Ct. 33 L.Ed.2d 131 ent of access to the or to indi- court, Supreme the California vidual; merely regulated the terms under repeated empha- in PruneYard stated: “It bears property lawfully permit which the owner could sis that we do not have under consideration the selective access. privacy rights of an individual “fishing,” “fowling,” strictly to and “navi-

Conclusion gener- gation”, “sympathetically however development pressures on Maine’s As interpretation of ous” the those terms continue, will increas- real estate might The Court concludes that the be. opportu- ingly seek shorefront recreational right to have the unrestricted shoreowners century variety, and 21st nities of the 20th naviga- fowling, any member of the from the fishing, exclude limited to unsympathetic person tion. No one can be lands unless that is en- intertidal opportunities goal providing such fishing, fowling navigation. gaged in fortunate everyone, just to those premised upon the That conclusion is erro- frontage. The solu- enough to own shore assumption neous that the Colonial Ordi- system, our constitutional how- tion under preeminent is the exclusive and nance ever, municipalities to is for the State fact, public rights. source of all property rights or purchase the needed ob- rights in the intertidal lands existed at com- through the by tain them eminent domain law, long mon before the Ordinance.1 compensation, not to take payment just rights not dis- Those common law were through legis- compensation them without and are broad placed by the Ordinance redefining the judicial decree lative enough permit to the activities described Here, rights. scope private property in Intertidal Land Act. the Public Trust Moody to Beach whatever various visitors right interpret I the common law Because thought, the state of the title to may have flexibly expansively than of use more and doubt the intertidal land was never does, judg- the I would vacate the Court and relevant under the Maine Constitution constitutionality of uphold the ment and law, owners, occupiers, buyers, case and merely confirms that it the Act the basis entitled of shorefront land were and sellers existing a matter of rights as recreational rights their as so rely to common law. regulation In the of State defined. absence power, permitted by police to the extent justly resolve attempt fairly to and Any meaning of our constitutional that is the controversy is made more important against taking private prohibitions and for an accurate by difficult the need just compensation. property without of the relevant as- reconstruction faithful entry judgments is: affirmed. of human years pects of more than development. common law activity and GLASSMAN, HORNBY develop- gap in the Rarely is there such a COLLINS, concur. JJ. confronts ment of the that court law WATHEN, Justice, with whom impression con- first significant issue of CLIFFORD, Justices, ROBERTS ago long cerning enacted an ordinance join, dissenting. relevant histo- My as 1641. review me that legal, persuades ry, both social and agree that recreational I do not not accurate- opinion does confined the of the Court rights in Maine coast are Massachusetts Liberties regard made the The Laws and 1. In this documentary (1982) following findings p. historical fact: historical 18. Other public could makes it clear that did evidence Ordinance] framers the Colonial [of fowling fishing, to own travel and use the for their not intend beaches public rights necessity in the intertidal right by driving exclude other cattle. This prior might to 1648. have existed long enough zone that usage apparently not survive did Century example, poor in 17th roads For as a formally approved the courts be dangers existed America and Colonial right can be no doubt but there common law inland, trying both before and to travel right and for in 1648 that it was a Ordinance, made passage Colonial after also ex- many years The framers thereafter. right along zone a the intertidal travel public rights could de- pected custom private zones. intertidal on both subsequent velop of the law and be Konig Testimony and Barnes of Professors Liberties, so passage Laws and of the 1648 and 86. The Laws Defendants’Exhibits p. long Barnes at not immoral. were right expressly discussed the and Liberties Barnes, open areas. drovers to rest cattle ly public’s define to use Maine veyance subject to a individual was shore. jus publicum. Id. at 14 S.Ct. at Revolution, Following 552.3 the American advantage With of hindsight, it is people “the of each state them- became now beyond established doubt that de sovereign; and in selves that character rights termination naviga- hold absolute all their fundamentally intertidal a mat ble waters and the soils under them for ter of state law. This conclusion derives use, prevailing interpretation subject only from the their own common English regarding ownership common since surrendered the Constitu- of the intertidal lands.2 Under inter government.” general tion Martin pretation, king title held to all the lands Waddell, Pet.) 367, (16 v. Lessee U.S. below the mark water which were case, 10 L.Ed. 997 In a recent affected the ebb tides. and flow the Supreme the United States E.g., Shively Bowlby, U.S. principle restated the held 548, 552, (1894); S.Ct. L.Ed. Bell v. original states, thirteen states and all new Wells, (Me.1986); Barker union, upon entering acquired title to Bates, 255, (1832); 30 v. Mass. 259 Blun all subject lands under waters the ebb Catterall, 1190, Eng.Rep. dell v. 106 1193 of Phillips and flow the tides. Petroleum (1821). king’s ownership of those 469, 484 Mississippi, Co. v. U.S. 108 S.Ct. qualified. lands was The lands were 791, 794-95, (1988). 98 L.Ed.2d 877 As thought “incapable ordinary of and sovereign, states, king those like the hold occupation, improvement” cultivation and public. the intertidal lands trust for the and appropriately more devoted to E.g. Phillips Mississippi, Petroleum Co. v. navigation, commerce, uses such as and 794; Shively Bowlby, 108 at S.Ct. 152 fishing. Shively Bowlby, 11, atU.S. U.S. at at 569. S.Ct. king’s ownership S.Ct. at 552. The of It is now common certain unless the the intertidal lands was therefore of two modified, ownership law has been of the types. title, He held the or jus privatum, intertidal lands lies the state. It is also absolutely. sovereign As he also held the public rights or established “that jus publicum in the individual States have trust the of public. Although authority benefit the the the of the define limits king possessed power convey recognize held in trust lands and to mark, lands below con- any private rights they water in such lands as see English interpretation 2. The subject is acquired in turn based title to the intertidal zone Comment, upon concept public rights. e.g. an ancient Roman of “natural certain See Coastal holding things, including Legal Securing law” that some Recreation: Methods Public shores, Seashore, Rights their nature are common to all. Me.L.Rev. 73-77 Hale, writings of Lord Chief Justice Things common to mankind the law of jurist support, Century, 17th noted of the nature, air, sea, water, running are the however, theory king presumptively sea; consequently and the shores of the no title held to the intertidal zone but that prohibited approaching man therefore is from ownership possible of those lands was at com- seashore, any part of the whilst he abstains law. mon farms, monuments, edifices, damaging from ground The shore is that that is between the etc. which are not in common as the sea is. ordinary high-water 2.1.1; mark low-water Butler, and Inst. See also Con- Commons prima mark. This doth and of common cept: Concept An Historical Rele- with Modem facie belong king, both in the shore of vance, (1982); Mary Wm. & L.Rev. sea and the shore the arms of the sea. Comment, The Public Doctrine in Trust Maine’s Submerged Rights, Lands: Public State Obli- true, Courts, gation Although may and the Role ... it is that such shore 37 Me.L.Rev. commonly parcel adja- is 107-08 manor cent, subject belonging and so to a ... be Wells, (Me. Bell v. prima In 511 n. 5 yet king1 is the s. facie 1986), Hale, Maris, this Court noted con reprinted the existence of a De A Jure ch. in Collec- trary regarding ownership view England of the inter Tracts tion Relative Law England. tidal Manuscripts (F.Hargrave zone medieval Under 12-13 1st ed. from view, adjoining upland 1787). the owner of the had fishing fowling. Phillips fit.” at 794. The Mas- of free Sec- S.Ct. 16 provided: tion Colony Bay sachusetts altered common sovereign regarding ownership by Every law Inhabitant is an howse fishing free holder shall have fowl- enactment of a Colonial Ordinance and the any great ponds Bayes, Coves adoption of as subseqeunt that Ordinance Rivers, so as the sea ebbes and farre part of the common law. Maine entered presincts flowes of the towne within part of Massachu- Union State dwell, free where unlesse the men and, achieving independent setts after or the same Towne Generali adopt purported statehood the Massa- them, appropriated have otherwise pro- usage chusetts of the common law vided that this shall be extended to of Maine. The issue thus becomes: What give any leave to man to come change the common law proprietie others there leave. without wrought by been scheme (De- Body Liberties Massachusetts private ownership that arose the Colo- 1641), reprinted Perry cember in R. re- customary nial and the Ordinance later, years Body 150.4 Six sulting from Ordinance? made Liberties amended and more Enactment of Colonial Ordinance comprehensive. 2 of the “Liberties Section I, King provided England, grant- replaced Common” 16 and 1620 James Section as follows: ed Plymouth to the Council “for governing planting, ruling, ordering, and hous-holder Everie Inhabitant who fishing fowling, in England shall free ... all Newe America great Ponds, Bayes, Groundes, Coves Riv- Havens, Landes, Soyles, Firme flows, ers so far as the Sea ebbs Portes, Waters, Rivers, Fishing The ...” precincts of the town where within the (March Bay Charter of the Massachusetts dwell, the Free-men of the unles 4,1629), reprinted Perry, in R. Sources of town, or Court have same the General (1960)(reciting prior grant our Liberties appropriated them. Provided otherwise I). grant by This James was confirmed appropriate any to that no town shall years eight and reiterated later Charles great persons, any particular person or Bay I in the Charter of Massachusetts conteining then ten acres of Pond more England. of New Hill embraced whole upon come land: and that no man shall Lord, v. Me. The Charter their proprietie without leave anothers empowered the officers of the Massachu- expressed; then as heerafter otherwise Bay Company “to make setts Lawes determin, is de- clearly the which (sic) of Ordinnces for the Good and Welfare coves, creeks, and other clared that in all _” Perry, Company R. the saide where places, salt water about at 89. On the Sources our Liberties of flows, Proprietor of the Sea ebbs and conferred, authority of the so basis propriete adjoyning shall have the land appointed General Court a committee the Sea to the low water mark where prepare place a draft of laws to limitation rods, a hundred doth not ebb above discretionary power magis- it ebs farther. not more wheresoever 143-44. trates. Id. at As a concession Proprietor shall not Provided that such magistrates vigorously who resisted power stop or by this libertie have laws, agreed of it was that enactment passage of boats or other ves- hinder the in force the initial set of laws would remain creeks, any or in, through sea sels years only. for at 145-46. three mens houses lands. coves to other Body of of 1641 was enacted Liberties lying in common great And Ponds for town, 16 of the temporary though basis. Section some within bounds Liberties, fish any free man to Body predecessor it shall be there, repasse passe and Ordinance, gave fowl to all inhabitants Colonial Jordan, English liberty significant to use law. Conant 4. to note that the It is great departure ponds A. a clear constituted through law, propriete on foot mans as our common the owner of end, they trespasse upon any so not lands bounded on the sea or salt water mans corn or meadow. mark, [1641-1647] shall hold to low water so that he does not hold more than one hundred rods Liberties Common The Book high water mark.” below Id.5 Libertyes Concerning General Lawes and (Boston, the Inhabitants Massachusetts prevailing usage Relying on the referred Mass.1647) reprint (facsimile D. Freeman, to in this had Storer v. Cushing, The Laws and Liberties Mas- years held for over that the Colonial 41,1976). sachusetts at Section 1641-1691 part Ordinance of Maine common law. 2 of the Liberties Common has come to be Bank, In Lapish Bangor 8 Me. 85 known as the Colonial It Ordinance. (1831), the issue was whether a deed con- grants “propriete” upland adjoining to the veying along conveyed lands the Penobscot owner to the low watermark of tidal wa- upland. the intertidal as lands well as ters, not to exceed 100 rods. Ordi- argument rejected This Court nance terms reserves to inhabitants the applicable Colonial Ordinance ei- right fishing fowling. pro- of free It enactment, ther adop- construction or up- vides further that the fee title of the ], tion. “Ever since as v. Freeman [Storer land owner in the intertidal lands does not before, long point as well the law on this give passage him the to “hinder the rest; perfectly has been considered as or other vessels.” boats Id. The courts liberty and we do not feel ourselves at have construed this clause as a reservation open question. discuss it as an We deem navigation. usage in question applicable to ... Wells, e.g., See Bell v. species property.” Fifty- Id. at 93. (Me.1986). later, McDermott, years one in Barrows v. Reception Principles plaintiff argued 73 Me. 441 Ordinance into the Common Law of apply the Ordinance did not to lands situ- Maine ated within the ancient Acadia. ac-We The District of Maine did not become knowledged that the Ordinance did not ex- part of Bay Colony the Massachusetts until regarded tend to Maine its terms but we terms, By its the Ordinance did not of the common Ordinance apply Maine, territory that is now public acceptance of Maine virtue legislative body responsible nor did the usage. precise We method described its governing authority enactment have adoption following of terms: Moreover, territory. prior over that to the adopted solely It is not at Ordinance] [the separation of Maine from Massachusetts declaring discretion court its the Ordinance “was annulled with the char- (sic) adoption, but the court find because by authority ter of which it was made.” largely accepted that it has so and been Freeman, 6 Storer Mass. 438 by community that it acted as law (1810). years separa- Ten before Maine’s fraught would mischief to set it be with tion, however, private ownership cre- aside. by ated the ordinance declared of noted, Although explicitly at the common law of Massachusetts. Id. 448. not “[A]n usage prevailed, upon classically force elements which now has we relied two Shortly separation upon quite after Maine's a basis as firm and im- from Massa- founded chusetts, movable; Supreme being property, Court of Massachusetts of that a settled rule applied extremely injurious stability held that the Colonial Ordinance it would be colony Plymouth despite titles, of the fact that as a peace interest of the and to the and legislative positive enactment the ordinance seriously community, to have it drawn Bates, never embraced that area. Barker v. question. upon usage It is founded a (1832). Mass. ancient, practice unvary- immemorial and so origin, ing, tracing precise its that without though question But the rule in cannot be source, law, must now be deemed a rule of common law positive traced to this as a rule of usage. proved by opinion it is still a settled rule such are every part of the State and legal recogni- things people approved considered essential for the custom, all; namely, long-continuing writing all tion of us- without will bind age general agree- peo- consent or does it matter whether and tacit what See Custom Classical ple ment. Schiller declares its will vote or circum- Law, Roman (1937- and conduct? Wherefore even Va.L.Rev. stances 1938). principle rightly is most received accurately, Stated Maine did not abrogated only by are adopt but rather fashioned statutes Ordinance legislator vote of the but also the tacit usage the law from the custom and through consent of all desuetude.7 Although grew out of the Ordinance.6 example developed such a clear of law from The Oracles the Law Dawson, J. rare, jurispruden- usage custom and is (1968) (Julianus, (quoting Dig. Dig. 1.3.32 Julian, concept origin. tial is of ancient 94)). I conclude that the source of the law highest prestige jurist classical de- ownership of the Maine shore is custom as a source of scribes the use of recognition usage this Court’s (roughly Roman law the classical era acceptance. legisla- deed of transfer or No A.D.): B.C. to 235 existing grant scheme of tive created properly pre- private ownership, plaintiffs’ but rather the Immemorial custom is ownership exclusively from cus- served as law and this is the law that is derived usage. tomary public rights, on to have been enacted For law. The the oth- said hand, predat- since us for no other reason er existed at common law statutes bind by the ed the Ordinance and the custom of than that have been received ownership.8 Accordingly, disputes con- opinion people, properly also those involving provision acquiesced in to have of the Ordi- acted be- 6.In a case settled, right. dealing "great ponds” nance this Court come a universal Comment, principles were A.2d at 939. See also noted that the of the Ordinance Id. at Law, recognized practiced Reception Common in Maine as a matter Maine’s (1979). Massachusetts L.Rev. of custom even before second 283-84 brought Bay Charter of 1691 the District of among debate scholars 7. There is considerable political of Massachu- under the control Maine setts. accepted indepen- as an whether custom was during classical era and dent source of law people The same conditions which led the abrogate a statute. whether custom could fowling Massachusetts to declare "free that such notions There are some who contend fishing” as one of their “liberties” existed during post-classical customary arose necessity for a here. There was same Schiller, period. Ro- Custom in Classical See fishing fowling for sustenance. resort Law, 24 Va.L.Rev. 268 man cases, compar- colonists in a In both were atively very and not fertile coun- uninhabited public rights a discussion of the source 8. For They gained only try. It was a wilderness. Waters, Waite, Rights Maine see Public Husbandry scanty from the soil. subsistence interesting to It is Me.L.Rev. crops depre- with failure of was attended pub sovereign ownership and the note that the savage common law dations foes.. being “great ponds”, both unknown lic ponds England, which restricted the use of law, solely from the are derived at common customary private owners was not suited and streams to growing out of the Ordinance. law and It is com- to their conditions necessities. custom and the Id The distinction between England monly of said that the common law aptly as fol law has described common been and, by brought the colonists in a was over lows: law, general became their but it is held sense First, every custom is in some fundamental adopted only they so much of it as was needs, respect exception ordinary law of from the an to their new conditions suitable society, of the land. consistent with the new state Second, appli- every in its general policy custom is limited course of conformable to the apply generality of pursue. cation. It does not to to which intended citizens, 227, 234, 938, per- Jordan, only particular of but to a class 77 A. 107 Me. Conant v. Although particular place. (1910). opinion, point sons or to a At an earlier in the 940 persons— govern plurality always a of process adoption must of in the we described the thing as custom inher- is no such a following for there words: only person plurality must be judicially adopted, sense ent in one not in the It has been —the State, restricted. it to this but that the Court extended really stating by two rules amount These found it extended that the Court ways. A itself, right, proposition different same in two expression a so as the of

185 Common- cerning previously undefined of nature of the owner’s interest attributes rights ownership (7 Cush.) should Alger, wealth v. Mass. 53 61 by original resort to the be resolved (1851), leading construing one of the cases sources, the common and custom. As law court, According to the ordinance. process adopting of illustrated easement, “imports not an an ordinance Maine, Colonial Ordinance in custom is an license, privilege, incorporeal right, but unwieldy source of law. difficul- Obvious re, to, jus proprietary a real or title a documenting prov- ties are involved in, itself, in the soil contradis- and interest dynamic process public usage of usufruct, or an uncertain and tinction to a established, acceptance. Even once Moreover, at 70. precarious interest.” however, sufficiently rarely custom is com- holder could use traditional forms the fee prehensive to resolve all areas of conflict attempted against persons of action who dispute. present excep- case is no rights ownership. his interfere with tion. trespass for maintain unlawful “[H]e ownership evolving concepts Private thereon, entry trespass on the case for public rights. obstructing rights fishery, his or writ _” “grant of land” occasioned Mar- entry against a disseizor designed promote Ordinance was com- Walker, 532, 537, 497, shall v. A. 93 Me. 45 by encouraging the construction of merce (1900). fishing, Subject rights 498 to the private expense. wharves at “To induce fowling, expressly reserved them, persons to erect the common ordinance, riparian in the ordinance, pro- England was altered ample “title to the shore owner’s [is] viding proprietor adjoining of land Wilson, ....” upland State v. water, salt sea or shall hold to lower (1856).9 Freeman, ...” Storer v. mark water interest The substantial nature of the (1810) (emphasis origi- Mass. in the is illustrated accorded to the littoral owner nal). Accord, e.g., Commonwealth v. Beal, Sawyer v. this decision in Court’s Charleston, (1 Pick.) 18 Mass. case, A. 848 In that 97 Me. (1822). Notwithstanding pur- limited brought plaintiff, littoral owner suit to pose, this Court has followed the lead of statutorily prescribed penalty un- recover a describing rights Massachusetts statute der R.S. ch. That riparian expansively owner in terms of prohibited the erection of fish weirs or simple ownership. See, e.g., Bell v. fee Wells, “in front of the (Me.1986). wharves tide water Chief emphasized riparian Justice Shaw the substantial shore or flats” of the owner.10 ed, applying subjects provided Queen’s custom he did not encroach to all the domain, sense, materially interrupting truly legal custom at all in the for, general navigation. says, as Coke ‘that is the common law’. Wilson, Allen, 42 Me. at 26. ed.1964) State (7th Making C. Law in the (emphasis original). in the Although expressly reserved 10. the Ordinance fishing public, this Court did Wilson, riparian In the defendant owner erect- permit place fish weirs not construe it to him ed a wharf between and low water marks riparian privately own- on the er, owned flats. on the shore of the Penobscot River. The in- hand, right to do on the other did have the charged him with of a dictment construction effectually This distinction secured so. consequent obstruction of an an- nuisance and fishing. riparian superior owner ferry landing place. Defendant’s convic- cient Sylvester, Duncan though tion reversed even his construction advantages acknowledged: of- ‘These are Cotut boats, impeded passage wharf the free value, great riparian proprietor ten of sphere ownership. This Court within his of Having right with others. a common has over explained: waters, may, he without others to fish those held, proprietor right, has never been that such [I]t exercise of that or im- unreasonable others, erecting precluded rights has been wharves proper the of interference with flats, notwithstanding piers upon advantages." superior his own and himself of these avail Forty years Treat, prevent passage 75 Me. it would the free of vessels later in Matthews v. boats, (1884), privi- again ground reiterated the so far as the was so cover- 594 this and 186 precise 536, (emphasis added). issue was the construction of 45 Id. at A. at 498 phrase addition,

the of “in front the shore or flats.” In we have that the held lands of The Court the analyzed issue with refer- riparian may the owner be increased purpose ence to the of the statute which accretion. v. King Young, natural 76 Me. protect rights was to the of littoral (1884), convey 76 and may that he the flats pro- owner and concluded that the statute yet upland versa, retain or vice or hibited fish which near the weirs were “so convey separately. E.g. both Snow v. injure to injuriously shore another as or Co., Desert Island Mount Real Estate 84 affect the latter in the of his enjoyment 18, 14, 429, 24 A. Me. rights 358, as such owner ...” Id. at Looking ledger, at the other side A. at 848. The stressed the fact consistently pub- we characterized rights the statute no in the created new E.g., lic’s interest as an easement. Bell v. purpose owner. “extend Rather its was to Wells, 509, (Me.1986). A.2d 516-17 It him protection” enjoy- to additional true, however, that it is easement that existing rights, ment of provide his and to undergone change significant has since its redressing him with a tres- means non By inclusion Ordinance. its terms passory interferences with the “use Ordinance extended liberties of enjoyment Id., of his land.” 54 A. at 848. fishing fowling only to inhabitants who In this right case we described the Perhaps were householders. as a result of littoral owner as follows: lim- “Within the preexisting recogni- or common law a ownership its his he has all the exclusive contrary usage early opinions tion of Id., rights of an 97 Me. owner.” pub- liberties as a Court described the A. at 848. McDermott, right. lic v. e.g., See Barrows Walker, In 45 A. Marshall v. (1882). Although 73 Me. the liber- (1900), suggested owner grew ties secured Ordinance out of appropriate might the flats the flats to sustenance, necessity provide to filling by building himself on them or them expanded include were soon to recreational thereby public rights provided cut off fishing fowling. this Court only navigation unreasonably is not acknowledged possibility that the liber- impaired by this action. by pleas- chiefly ties “now exercised were tramps might has ordinance become a of our ure and idle who seekers be

[The] it, law, proprietor common profitably employed_” more Id. More- over, public’s fishing the main the shore water for holds to low easement exceeding expanded dig- not one hundred He such as rods. include activities Lemar, lands, subject, worms, fee, ging holds it in other 147 Me. like State v. however, (1952), digging jus publicum, right for shell- to the 87 A.2d 886 (1854), fish, Me. 472 purposes Libbey, it for the use Moulton however, not, Leavitt, navigation fishery, digging clams. State (1909).11 right ap- 72 A. interfere with his of exclusive 105 Me. include propriation unreasonably rights shall not now highway impede navigation by filling turning waters as a even to use the frozen, upland, by building Camp, 18 Me. 433 it into wharves when French v. it, other structures so that neces- and include for recreational travel sarily purposes. E.g. would be there- Aroostook Lum- excluded Smart v. by. Co., ber 527A. owner,

leged riparian position pling to the shore weirs for the even and erect fish, regard rights public. catching having public purpose also held those only necessarily private ownership give cannot do so. This must proprietor privileges some do Id. at 598. belong public. Among is the others Lemar, Moulton, in fact all dealt attaching and Leavitt erecting fixtures thereon or regulate authority proprie- with the of the State them to the Hence while shores. by grap- public rights at tor of the fasten his seine various issue. flats

187 up public rights This Court summed the nor the common law the would authorize in beginning (sic) the intertidal taking flats at the of of ‘muscle-bed manure’ from Walker, century this person.” Marshall v. 93 Me. the of land another Id. at 356. (1900). 45 A. “may plaintiff brought 497 sail The in Moore an action in them, may upon trespass quare over moor their craft against clausum defendant them, may upon their entry upon high allow vessels to rest his river flats between bare, the soil may when land and walk and low water mark and removal of six upon them, may ride or gondola skate over them loads of mussel-bed manure. The ice, when bearing rejected covered with water Court the defendant’s contention them, fish in may dig the water over only that the Ordinance reserves not the [and] 536-37, shell in them fish ...” Id. fishing fowling per- of but also sand, ballast, A. at 498.12 taking mits sea manure and Rather, right as a of soil in the flats. the The last time this Court examined of practice Court held: “No such can be rec- public rights in intertidal lands we ognized depriving legal of his owner adopted expansive right of view the of rights according title, sup- to his unless navigation. In King, Andrews v. ported by proof, that would establish a (1925), 129 A. 298 the shore owner right. language common of the reser- defendant, operator claimed that the of a vation the ordinance cannot extended be hire, power small right boat for had no beyond meaning the obvious of the words passengers high on his flats between fishing fowling.” The decision in plaintiff argued and low water mark. The approved forty years Moore was more than express that under the terms of the Ordi- King later this Court in Young, v. nance, right navigation of was limited (1884). Me. 76 purpose passage to the stated to “other navigation men’s houses” or pur- Similarly, prohibited taking for the we have poses fishing fowling. rejected We of seaweed from the flats of another. rigid this construction of the Ordinance and title seaweed is the owner “[T]he flats_” Lord, held that the reservation in the Hill v. Ordinance 48 Me. encompassed general right navigation. (1861). Although we have not decided More significantly, right noted question, at least one commentator has mooring included suggested of ves- ownership the scheme of sels, discharging and the taking prohibits established the ordinance also cargoes, provided unoccupied. the flats are taking empty sand and Accord, Comment, Id. at 129 A. Deering at 299. shells from the flats. See Long Wharf, v. 25 Me. In Public Trust Doctrine in Maine’s Sub- addition, per- members of the were merged Rights, Lands: Public State Obli- privately Courts, mitted to make such uses of gation and the Role pursuit owned flats pri- Me.L.Rev. “[i]n [their] affairs, vate of business pleas- as well as prohibiting taking In addition to (emphasis added). ure.” Id. flats, certain substances from the we have imposed This Court has prohibited deposit limitations on the also substances right example, to use the intertidal flats For flats. McFadden purposes. Co., for certain Significantly, Haynes how- Ice 86 Me. DeWitt ever, held, (1894), suggest- we have not nor A. this held that even ed, ownership company, the scheme of estab- defendant ice a member precludes pub- deposit public, lished Ordinance had no snow using plaintiff’s lic from the intertidal zone for com- flats and low between argued mon recreational beach activities. watermark. The defendant engage Griffin, since Moore a fisherman had the held such as the ordinance certain activities on the flats “[n]either boat, that, horseback, sleigh. logically suggests given contemplated 12. A commentator ice Waite, opinion, riding the date of the the mode at 172. anchoring placing public his boat there or an ice Those common law. uses of inter- surface, or hut on frozen submerged boat the “an impor- tidal and lands remain ice-cutter, by analogy, should be tant, allowed grown up others have but well. temporarily to flats encumber another’s press increasing population of an scraped with snow from his ice.” Id. at heavy upon lead to demands Maine’s 324, disagreed, 29 A. at 1069. We how- great ponds and recreation seacoast for ever, and took a restrictive more view of uses. right public’s the to encumber the flat. Id. at 607. The Law noted Court later rights Property can not be established the had stated “the needs of Justices a analogy alone. The fisherman has a growing society may a varie- lead to wider right go upon to flats another’s to take ty public submerged uses” of lands. fish, his because the ordinance of 1647 533, Commissioner, Harding v. right expressly ... the reserved of fish- (Me.1986). ery. right go The fisherman has a to 1925, In this decided An- when upon another’s flats because it is one of drews, expanded right navigation the we rights. right his reserved But no such doing plaintiff’s and in so we noted that to was reserved the ice-cutter. ... And landing place a flats had used as been perceive to company, we fail how an ice years. fifty King, v. 124 Me. Andrews operating upon navigable one of our riv- rejected rigid appli- 129 A. 298. We ers, possess deposit right can the the cation terms of the Ordinance and scraped upon

snow ice from its the flats owner, contemporary usage adjoining resorted to notions of of an without the lat- among public acceptance ter’s consent. not re- and strike It is the order to rights served in the ordinance mentioned rational fair balance between nor has the to thus rights. ... ownership public Similarly, in recognized incumber another’s been present controversy should consider we by judicial or affirmed decision. ... usage accept- public current notions of fishing, Although practice ance. Id., A. at 1069.13 fowling navigation, classically de- Court, sitting In modem times this as the fined, important, may have become less Court, upon Law has not called been developed other recreational uses have public further define and delineate the acceptance past public received within have, however, expressed right. We years. persuaded that sixty I am public rights in view that intertidal lands in ar- Court and the erred Justices, In dynamic. Opinion are resting development in further (Me.1981), question posed 437 A.2d 597 effectively confining public rights to those to the Justices concerned the constitutional- recognized prior to 1925. had been ity releasing of a bill the state’s interest .any addi- Although placing must avoid we submerged intertidal In filled lands. shoreowner, there is tional burden commenting on the reasonableness of the confine, in the no nor have legislation, recog- reason to individual Justices rights confined, rights past nized that sub- must merged strictly usage prevailing and intertidal lands evolve in the 17th passage Century. logic sup- of time. Neither reason nor ports necessary and con- unfortunate Navigation, fishing, fowling were analysis; flowing clusion from this Court’s purposes pub- historical for which the developed namely, rights of the principle that the common law lic trust however, entirely recognized analogous to its 13. We have more extensive it- in Great in tidal flats. use intertidal flats. Colonial Ordinance Ponds than fishing, boating, prohibited ownership fowling, skating self Great addition ice, riding gave also Ponds title the intertidal flats swim whereas Ponds, Consequently Palangi, riparian Me. owners. the State Great Gratto benefit of ice them. holds to the Great Ponds for the A.2d and cut from title Co., public. Conant Rockport Id. at 24 A. 802. Barrett v. Ice 24 A. 802 227, 230, Ponds, Jordan, public's right A. to use Great extinguished fishing, would be if shore. The narrow view taken fowling, longer were no Massachusetts court does not exclude practiced. When walking the necessities of the on the foreshore Century disappear 17th emphasis and the purports; requires as it it merely that a moves from those person desiring historic activities to oth- along to stroll the fore- burdensome, er uses no more the common shores of that state take with him a rights law of the fishing keeping should remain vital. line or net. with The citizens of Maine apparent purpose are still need of Colony Ordi- sustenance, albeit, in decisions, a different form. past nance and its the Maine Supreme Judicial Court can refuse to genius The of the common law has been such a draw delicate distinction between ability legal its adapt chang- to doctrine to rights expressly reserved the ordi- ing needs and circumstances. As we noted nance and similar recreational activities. long ago: “The common would ill de- With such a refusal the court will avoid its familiar panegyric ‘perfec- serve as the “declaring the anomalous result of tion of human expand reason’ if it did not trespasser bathing, same man a who progress society develop trespasser up was no when to his knees right justice.” with new ideas of In re water, lobster, or neck in in search of a Robinson, 17, 23, 33 A. crab, shrimp.” or a importance The increased of recre- Comment, Coastal Recreation at 83. use of ational the shore is The evident. power of body the Maine coast to restore case, In the context of this I would not and mind is Legis- well known. The Maine attempt provide comprehensive defini- specifically lature has recognized that tion of the recreational activities that could among “recreational uses are im- the most rights fall within the common law portant people today Maine use who public. plaintiffs requested a declara- intertidal pres- land for relaxation from the ownership tion that their subject only enjoyment sures of modem life and for rights fishing, fowling and navi- beauty.” nature’s 12 M.R.S.A. § gation. granted their (Supp.1987-1988). Such a resource request, confining public rights not, been, subject is and never has previously recognized by those this Court ownership. firmly exclusive I believe that denying any develop- judicial further primarily intensity it is of the modem rights. ment of those I conclude that the use rather than the nature of the use that rights pub- court was error. The provides impetus litigation. for this are, minimum, lic enough at a broad degrees use, intensity Given similar include such recreational activities bath- imagine one would that a shoreowner ing, sunbathing walking. As ordinari- might prefer presence sunbathers, ly practiced, such activities involve no addi- swimmers and strollers over fowlers and tional burden on the shoreowners and noth- Further, suggest- fishermen. as has been ing deposited is taken from or on the inter- elsewhere, adopted by ed the narrow view litigation present tidal lands. The does not today results in absurd and easi- require that we delineate the outer limits ly permissi- thwarted distinctions between rights. On the record before us impermissible activities: ble only necessary plain- to rule that the recognize re- narrow view would tiffs are not entitled to a declaration [A] picnic resting stricting public rights fishing, fowl- a rowboat while navigation. refine- trespass Any on the foreshore but as a further brand develop- performed sit- should common law the same activities while ment await legislative ting spread on a blanket on the fore- ment or action.14 Similarly, validity provision permit- Trust not rule on the since we consider the Public only ting municipalities in Intertidal Land Act to determine wheth- shore to authorize use of the declaratory sought by precludes er it plaintiffs, relief vehicles. See 12 M.R.S.A. motorized pass we have no occasion to 573(2)(D). § Specifically, I outer limits of that Act. would Constitutionality the Public Trust high watermark and either 100 rods sea- Intertidal Land Act high ward from the watermark or the watermark, mean low whichever is closer April Legislature On 1986 the Maine to the mean watermark. enacted the Public Trust in Intertidal Land rights 573. Public trust in intertidal § Act, Act, P.L. ch. 782. That subse- land quently codified as 12 M.R.S.A. 571-573 rights. 1. Public trust (Supp.1987-1988),provides that the interti- rights trust in intertidal land include the trust, subject dal lands are the of a following: public rights is the trustee of State A. The to use intertidal lands, in the intertidal and that fishing, fowling navigation; fishing, include recreation as well as The to use intertidal land fowling, navigation. legislation The B. recreation; in entirety reads its as follows: rights Any other trust to use C. Legislative findings purpose 571. § recognized by the Maine intertidal land Legislature The finds declares that specifically common law and not abro- im- the intertidal lands of the State are gated by statute. pressed public trust and that the 2. Limitations. The described responsible protection State is of the in subsection 1 do not include: public’s interest in this land. A. The removal from the intertidal Legislature The further finds and de- sand, soil, any rocks or other land of public clares that this trust is of the minerals; generally common law of Maine and de- structure, any B. Interference with practices, rived from the conditions and improvement development or erected Maine, English needs in from Common or maintained on intertidal land ac- from the Massachusetts Coloni- Law and State; cordance with the laws of this public al of 1641-47. The Ordinance depositing any refuse or C. The evolving doctrine reflective of trust is an land or in the water waste intertidal traditions, customs, heritage and hab- land; covering or intertidal Maine, people. Maine its of the diverged operation of motorized doctrine has from the laws D. Use or navigable England public The vehicles other than water- and Massachusetts. craft, specifically unless authorized encompasses trust those uses of interti- municipal or ordinance. state law dal land essential to the health wel- uses people, fare of the Maine Municipalities 3. Police Powers. to, include, fishing, are not limited jurisdiction but to exercise their shall have fowling, navigation, footway use as a powers public control use of police along land, points except the shore and use such exer- between intertidal where by any These recrea- purposes. superseded for recreational cise is state law. impor- among the most tional uses are rights. chapter This 4. Other today who use people to the Maine tant rights in intertidal not affect does from the for relaxation custom, intertidal land arising prescription, land from society and for en- pressures dedication, of modem acquiescence any implied beauty. of nature’s joyment chapter This does not af- other source. up- public rights dry sand areas fect de- Legislature further finds and The arising land from intertidal protection of the clares that dedication, custom, implied prescription, chapter in this is of referred to uses acquiescence, trust doctrine grave concern great public interest source. other to the State. Definitions held that the Public Superior The “in- Land Act violates chapter, the term Trust Intertidal used

As powers provision separation of all land of this State tertidal land” means addressing Constitution. Without the mean Maine by the tides between affected Hunter, plicit. Superior ruling, this Court now State v. Court’s (Me.1982). inquiry par- holds that the Act is unconstitutional be- whether taking cause constitutes “explicitly granted power ticular has been Because, view, property. my government, and to to one branch of state rights in the lands common law intertidal so, III, If article section no other branch. uses, merely includes the Act recreational to exercise forbids another branch declares the common and there is no law15 explained, As power.” Id. at 800. statute, however, taking property. posed the one question is similar to provisions may constitute does contain evaluating whether an the federal courts law, i.e., existing an addition to common political question non-justiciable issue is a provisions declaring that intertidal lands ‘textually there is a —namely, “whether subject are the of a trust and constitutional commitment’ demonstrable public rights. the State is trustee of those to another branch of the of the issue Accordingly, my analysis requires a review government.” (quoting n. 4 Baker v. holding Superior Court’s 186, 217, 691, 710, Carr, 369 U.S. 82 S.Ct. separation powers provi- Act violated (1962)). L.Ed.2d 663 sion of the Maine Constitution. Although does the Maine Constitution acknowledged au- judicial parameters not define alter, Legislature “codify, thority of the provide power, opinions the of this Court main- abrogate” or the common law but judicial pow- guidance. The essence of the by making tained that it must do so new er, legislative, is distinguished from the existing by interpreting law rather than resolving specific controversies its focus on Construing in Bell v. opinion law. our In parties litigation. in particular between holding I that the State is not a Wells Webb, held 3 Me. 326 Lewis v. public rights, of the the court found trustee granting par- to a legislative a resolve that legislative interpretation contrary appeal a decree litigant ticular the to authority judi- upon encroached the of the improper exer- probate of the court was Constitution, gov- ciary. the Maine Under Legisla- judicial power by the cise of the into three powers ernmental are “divided striking peculiar of the and ture. “It is one legislative, departments, the execu- distinct it is dis- judicial power of that Const, features Ill, art. judicial.” and tive in decision of controversies be- played the provision separation powers of 1. The § contending parties; the settlement tween persons, person or be- provides that “[n]o and redress of their of their departments, one of these shall longing to contrast, By a wrongs.” Id. at 332.16 belong- powers properly any of the exercise legislative power “must of proper exercise Be- of others.” Id. ing to either the prospective; a general and in its nature be powers of separation the rule of cause all, is the binding on all. It rule for Constitution, prin- the explicit in the Maine make and legislature to province of the in the strictly construed than is more ciple laws; province and and it is the only im- establish the rule is system where federal private disputes be- and decide ter the laws enacting Trust in Intertidal the Public 15. In the, Act, regulate, By judicial Legislature sought concerning persons. to the or Lands preserve tween understood, judicially-created public public protect generally power, courts is expanded rights rather than to create controversies power and determine to hear originally rights by legislation. was The statute questions in liti- parties and adverse between merely as a means "to proposed encourage draft form the, only authority, not gation. inherent It is pub- claims of courts to facilitate judg- binding orders but to make to decide ments, Com- easements in the seashore.” lic recreation judicial power; and constitutes ment, at 102. Coastal Recreation inform the tribu- used to instrumentalities the nal, choice or fixed left to its own whether LeClair, again em- Law Court State v. 16. In law, auxiliary power and merely that to are judicial power is exercised phasized that only through things persons operate on private dispute resolution. context of of it. virtue its action designate [Jjudicial employed power, to is ... 522, 531, LeClair, A. State v. department government which it omitted). should, (1894) (quotations (sic) interpret adminis- intented duty judges alter, expound apply abrogate, codify the common Legisla- them.” at 333. Because the e.g., Kamp law. See Atlantic Oceanic upon ture in Lewis had conferred an indi- Bank, grounds v. Camden National litigant right particular vidual him a (Me.1984). A.2d I would find no alone, upon judicial it had encroached separation powers provi violation power. of the sion Maine Constitution. evaluating Legislature whether the upon power encroached it judicial when Conclusion enacted the Public Trust Intertidal Land opinion Twice its this Court mentions Act, I legislative first note enactments finding Superior Court concern- presumed must be constitutional. Ace Tire public’s “strolling” up habit Municipal Waterville, Co. Officers length Moody down the Beach and the (Me.1978). Superior A.2d acquiescence owners. De- Legislature Court held that the violated the spite testimony shoreowners’ separation powers provision because permit activity would continue to this in the law, purported interpret had the common future, they so, are bound to do and the rather than make law. I new conclude order, affirmed this Legislature acted to declare the exist- Court, acknowledge any does not ence of in the intertidal trust on the beach. stroll lands, regardless of ex- whether that trust opinion nothing dispel This Court’s does legislative isted at common law. The find- obvious mo- conclusion that ings 571, in- purpose, 12 M.R.S.A. § on, Moody every ment Beach and other independent findings only clude three one Maine, public’s right shore Signif- of which refers to the common law. even to stroll the intertidal lands icantly, paragraph section first hangs by the slender thread shor- “Legislature finds and declares” I will not eowners' consent. hazard trust intertidal lands and guess whether that consent will be forth- responsible” protect- that the “State is coming. my judgment, public rights In ing public’s “the interest.” “Leg- completely not so paragraph quickly second of section should be extinguished. declares that the I admit the Court has islature finds further assiduously of the common law.” path trust followed the taken me, paragraph, “Legislature but, In the final courts of Massachusetts protection By interpreting goal. is not the Maine further finds great public uses ... is of interest it, attempting revise I history, without grave concern.” recogniz- legally find a sufficient basis for ing rights limited in the recreational Legislature Even if assume that the my strengthened I am Maine seashore. law, purported interpret the common by the fact those same conviction it has the essence of not encroached recognized Maine been is, judicial as noted function which judgment. Legislature. I would vacate the above, disputes the resolution of between Leg- litigants. Undoubtedly, particular response partly

islature acted Act, however, pro-

present litigation. The general applicability de-

vides a rule

signed poten- to aid resolution all regarding scope disputes

tial

public’s rights in the coast of Maine. entire all, “for bind- provides rule Act all,” parties rule for simply Webb, 3 Me. litigation.

to this Lewis Act is with- therefore authority to Legislature’s the scote of

Case Details

Case Name: Bell v. Town of Wells

Court Name: Supreme Judicial Court of Maine

Date Published: Mar 30, 1989

Citation: 557 A.2d 168

Court Abbreviation: Me.