195 Mass. 79 | Mass. | 1907
This is á petition for the registration of a title to an estate on the seashore, at Bay View in Gloucester. The premises include a vacant, unimproved, sandy beach, not exceeding one hundred rods in width, over which the tide ebbs and flows. Questions arose at the hearing in regard to rights,
The answers to these questions depend upon the common law, as modified by the colonial ordinance of 1641-47. The most important part of the argument has been in regard' to bathing. The law of England on this subject was discussed at great length and with much learning in Blundell v. Catterall, 5 B. & Aid. 268, and it was held, by three of the four judges, that at common law there is no public right of bathing in such a way as to make any use of the land on the seashore between high water mark and low water mark. Although this decision has been criticised, it has been treated by the courts and by most text writers as settling the law. It was unanimously affirmed in the recent case of Brinckman v. Matley, [1904] 2 Ch. 313. If we follow the decisions in England we thereby settle this part of the respondent’s claim. See Shively v. Bowlby, 152 U. S. 1, 19, 26.
In considering the colonial ordinance of 1641—47 and the cases which have been decided under it, we find confirmation of this view. The ordinance is treated as settling the common law of Massachusetts, and as embodying the local law as to the
The provisions and the conditions in reference to land under tide water are different from those that pertain to great ponds. In these the entire proprietorship is kept in the State, for the benefit of the public, and, unless granted by the Legislature or by a town under its authority, they are to be appropriated to such public uses as the progress of civilization and the increasing wants of the community properly demand. Attorney General v. Herrick, 190 Mass. 307. West Rozbury v. Stoddard, 7 Allen, 158. Hittinger v. Eames, 121 Mass. 539. Slater v. Gunn, 170 Mass. 509. In the seashore the entire property, under the colonial ordinance, is in the individual, subject to the public rights. Commonwealth v. Alger, 7 Cush. 53, 78. Commonwealth v. Rozbury, 9 Gray, 451, 492. Weston v. Sampson, 8 Cush. 347. Marshall v. Walker, 93 Maine, 532, 536. See also other cases above cited. Among these is, of course, the right of navigation, with such incidental rights as pertain thereto. We think that there is a right to swim or float in or upon public waters as well as to sail upon them. But we do not think that this includes a right to use for bathing purposes, as these words are commonly understood, that part of the beach or shore above low water mark, where the distance to high water mark does not exceed one hundred rods, whether covered with water or not. It is plain,
The right of fowling was expressly mentioned in the ordinance of 1647, and was thereby created as a public right in householders, if it did not previously exist at the common law. The language was retained in the ordinance when it was enlarged by additional provisions. Col. Laws, 1660, (Whitmore’s ed.) 90. There may be ground for a question as to whether it was nullified by the subsequent grant of lands to individual proprietors between high water mark and low water mark. We think it better to hold that it was not. We know of no case in which the question has -been decided, but in Commonwealth v. Alger, 7 Cush. 58, 68, the right to use the shore for fowling is referred to as a public right.
We have considered the questions principally discussed at the argument. We are of opinion that a decree should be entered that the premises are held by the petitioners in fee, subject, however, as to that portion between high and low water mark, to the easement of the public for the purposes of navigation and free fishing and fowling, and of passing freely over and through the water without any use of the land underneath, wherever the tide ebbs and flows.
So ordered.
