To the Honorable House:
The undersigned justices of the supreme court submit the following reply to your questions of May 5, 1994. Following our receipt of your resolution, we invited interested parties to file memoranda with the court on or before September 1, 1994.
SB 636 (the bill), as amended, proposes to amend RSA chapter 483-B (1992) by inserting after section 9 a new section, 483-B:9-a, titled “Public Use of Coastal Beaches.” The legislature’s purpose is set out in the bill as follows:
It is the purpose of the general court in this section to recognize and confirm the historical practice and common law right of the public to enjoy the existing public*86 easement in the greatest portion of New Hampshire coastal beach land subject to those littoral rights recognized at common law. This easement presently existing over the greater portion of that beachfront property extending from where the ‘public trust’ ends across the commonly used portion of sand and rocks to the intersection of the beach and the high ground, often but riot always delineated by a sea wall, or the line of vegetation, or the seaward face of the foredunes, this being that beach where violent sea action occurs at irregular frequent intervals making its use for the usual private constructions uneco[n]o[m]ical and physically impractical.
The bill defines “coastal beaches” as “that portion of the beach extending from where the public trust shoreland ends, across the commonly used portion of sand and rocks to the intersection of the beach and high ground, often but not always delineated by a seawall, or the line of vegetation, or the seaward face of the foredunes.”
The bill states that “New Hampshire holds in ‘public trust’ rights in all shorelands subject to the ebb and flow of the tide and subject to those littoral rights recognized at common law” and that the “ ‘public trust’ shoreland establishes the extreme seaward boundary extension of all private property rights in New Hampshire except for those ‘jus privatum’ rights validly conveyed by legislative act without impairment of New Hampshire’s ‘jus publicum’ interests.” The bill then provides that
for an historical period extending back well over 20 years the public has made recognized, prevalent and uninterrupted use of the vast majority of New Hampshire’s coastal beaches above the ‘public trust’ shoreland. The legislature recognizes that some public use of the beach area above the public trust lands is necessary to the full enjoyment of the land. The general court recognizes and confirms a public easement flowing from and demonstrated by this historical practice in the coastal beaches contiguous to the public trust shoreland where the public has traditionally had access and which easement has been created by virtue of such uninterrupted public use.
Further, the bill states that “[a]ny person may use the coastal beaches of New Hampshire where such a public easement exists
Your first question asks “[w]hether New Hampshire law identifies a particular coastal feature or tidal event as outlining the maximum shoreward extension of the public trust area boundary . . . beyond which the probable existence of private property rights may, without a public easement arising from historical practice, restrict any public access under the provisions of Part I, Article 12 of the New Hampshire Constitution and the 5th amendment of the United States Constitution.” We answer in the affirmative.
Part I, article 12 of the New Hampshire Constitution provides that “no part of a man’s property shall be taken from him, or applied to public uses, without his own consent, or that of the representative body of the people.” This clause requires just compensation in the event of a taking. Piscataqua Bridge v. N.H. Bridge,
The public trust has its origins in the concept of the jus publicum, an English common law doctrine under which the tidelands and navigable waters were held by the king in trust for the general public. See Sax, The Public Trust Doctrine in Natural Resource Law: Effective Judicial Intervention, 68 Mich. L. Rev. 471, 475-76 (1970). The English common law was based, in turn, upon the ancient Roman concept of “natural law” that held that certain things, including the shores, by their nature are common to all. See Comment, The Public Trust Doctrine in Maine’s Submerged Lands: Public Rights, State Obligation and the Role of the Courts, 37 Me. L. Rev. 105, 107-08 (1985). At common law, the king had
Following the American Revolution, “the people of each state became themselves sovereign; and in that character hold the absolute right to all their navigable waters and the soils under them for their own common use, subject only to the rights since surrendered by the Constitution to the general government.” Martin v. Waddell,
In 1889, this court rejected a Massachusetts law that adopted the low water mark as the boundary between public and private ownership. Concord Co. v. Robertson,
The Robertson court rejected the need to vest New Hampshire private property owners with fee title to the tidelands below high watermark:
While the [Massachusetts] ordinance maintains the public title of large ponds, it converts into private property, and gives away, a great amount of tide-land. ... In this state, the transfer of the fee to the abutters has not been necessary to encourage improvements below high-water mark. Their common-law*89 right of reasonable use has been sufficient for all the purposes for which the [Massachusetts] ordinance changed the common-law title.. .. Private ownership of so much of the tide-land (not exceeding 100 rods in width) as is bare twice a day, and public ownership where vessels can come to a wharf at low tide, is not an adequate or useful adjustment of rights for commercial purposes. Where tide-land ought to be improved and occupied by the abutter, above and below low-water mark, he has a common-law right to improve and occupy it.
Robertson still represents the law in New Hampshire. While it is settled, therefore, that the public trust in tidewaters in this State extends landward to the high water mark, the following common law questions are not settled: what is the high water mark; where is it located; and how is it located. We do not purport to determine in this opinion answers to such questions.
Your second question asks “[w]hether the effect of [the bill], which recognizes that the public trust extends to those lands ‘subject to ebb and flow of the tide’ infringes upon existing private property rights as protected by Part I, Article 12 of the New Hampshire Constitution and the 5th amendment of the United States Constitution.” We answer in the negative.
As already set out in our answer to your first question, New Hampshire has long recognized that lands subject to the ebb and flow of the tide are held in public trust. “Land covered by public water is capable of many uses.” Concord Co. v. Robertson,
In addition, we have uniformly held that owners of property adjacent to lands held in public trust have common law rights which are “more extensive than those of the public generally.” Sundell v. Town of New London,
These rights, recognized at common law, constituted property which could not be taken without compensation .... These private rights of littoral owners include but are not necessarily limited to the right to use and occupy the waters adjacent to their shore for a variety of recreational purposes, the right to erect boat houses and to wharf out into the water. We have also held that these private littoral rights are incidental property rights which are severable from the shore property itself and may be conveyed separate from the littoral property,
. . . Because these littoral rights are an incident of ownership of shore property, their value is reflected in the fact that shorefront property commonly is substantially more valuable than property otherwise situated.
Id. at 844,
always subject to the paramount right of the State to control them reasonably in the interests of navigation, fishing and other public purposes. In other words, the rights of these owners are burdened with a servitude in favor of the State which comes into operation when the State properly exercises its power to control, regulate, and utilize such waters.
Sibson v. State,
Your third question asks “[w]hether the provisions of [the bill], which recognize a public easement in the ‘dry sand area’ of historically accessible coastal beaches is a taking of private property for a public purpose without just compensation in violation of Part I, Article 12 of the New Hampshire Constitution and the 5th amendment of the United States Constitution.” Except for those areas where there is an established and acknowledged public easement and subject to the assumptions contained in the discussion below, we answer in the affirmative.
The bill apparently recognizes two property interests in two distinct areas of shoreland. First, the bill establishes that “New Hampshire holds in ‘public trust’ rights in all shorelands subject to the ebb and flow of the tide.” Second, the bill establishes a public easement in land “extending from where the public trust ends across the commonly used portion of sand and rocks to the intersection of the beach and the high ground, often but not always delineated by a sea wall, or the line of vegetation, or the seaward face of the foredunes.” This high ground is generally known as the “dry sand” area. The bill states that
for an historical period extending back well over 20 years the public has made recognized, prevalent and uninterrupted use of the vast majority of New Hampshire’s coastal beaches above the ‘public trust’ shoreland. . . . The general court recognizes and confirms a public easement flowing from and demonstrated by this historical practice in the coastal beaches contiguous to the public trust shoreland where the public has traditionally had access and which easement has been created by virtue of such uninterrupted public use.
As noted in our answer to your first question, this court has not defined the term “high water mark.” Because, however, the bill states that the dry sand area is not within the public trust we will, for purposes of this opinion, base our analysis on that assumption. We construe the bill, therefore, as recognizing public trust rights below the dry sand area and a prescriptive easement in the dry
“To establish a prescriptive easement, the plaintiff must prove by a balance of probabilities twenty years’ adverse, continuous, uninterrupted use of the land [claimed] in such a manner as to give notice to the record owner that an adverse claim was being made to it.” Mastin v. Prescott,
[e]vidence of continuous and uninterrupted public use of the premises for the statutory period ... is insufficient alone to establish prescriptive title as a matter of law. The nature of the use must be such as to show the owner knew or ought to have known that the right was being exercised, not in reliance upon his toleration or permission, but without regard to his consent.
Vigeant v. Donel Realty Trust,
Problems militate, however, against the use of the prescriptive doctrine. “First, there is the obvious problem of establishing factual evidence of the specialized type of adverse use for the requisite period of time . . . needed to create an easement by prescription.” 3 R. Powell, Powell on Real Property § 34.11[6], at 34-171 (1994). “Secondly, prescriptive easements, by their nature, can be utilized only on a tract-by-tract basis, and thus cannot be applied to all beaches within a state.” Id. In a suit to quiet title, adequate evidence may well exist to prove that on a given piece of property, the area landward of the public trust across the dry sand is subject to a public easement. Such a determination is, however, a judicial one.
*93 It is the constitutional mandate that questions of law belong to the judiciary for final determination, as a necessary deduction of the required separation of the legislative, executive and judicial powers of government. (Const., Part I, Art. 37). It follows that legislation cannot bar or restrict this power of the judiciary, and the courts have inherent power, through appropriate process, to act upon and decide such questions, if they are not of a strictly political nature.
Cloutier v. State Milk Control Board,
Although the bill does not completely deprive private property owners of use of their property, “[t]he interference with private property here involves a wholesale denial of an owner’s right to exclude the public.” Bell v. Town of Wells,
“Property,” in the constitutional sense, is not the physical thing itself but is rather the group of rights which the owner of the thing has with respect to it. The term refers to a person’s right to possess, use, enjoy and dispose of a thing and is not limited to the thing itself. The property owner’s right of indefinite user (or of using indefinitely) . . . necessarily includes the right ... to exclude others from using the property, whether it be land or anything else. From the very nature of these rights of user and of exclusion, it is evident that they cannot be materially abridged without, ipso facto, taking the owner’s property. The principle must be the same whether the owner is wholly deprived of the use of his land, or only partially deprived of it.
Burrows v. City of Keene,
When the government unilaterally authorizes a permanent, public easement across private lands, this constitutes a taking requiring just compensation. See Nollan v. California Coastal Comm’n,
*94 [A]s to property reserved by its owner for private use, the right to exclude [others is] one of the most essential sticks in the bundle of rights that are commonly characterized as property .... [0]ur cases uniformly have found a taking to the extent of the occupation, without regard to whether the action achieves an important public benefit or has only minimal economic impact on the owner. We think a permanent physical occupation has occurred, for purposes of that rule, where individuals are given a permanent and continuous right to pass to and fro, so that the real property may continuously be traversed, even though no particular individual is permitted to station himself permanently upon the premises.
Id. at 831-32 (quotations and citations omitted); see Loretto v. Teleprompter Manhattan CATV Corp.,
Because the bill provides no compensation for the landowners whose property may be burdened by the general recreational easement established for public use, it violates the prohibition contained in our State and Federal Constitutions against the taking of private property for public use without just compensation. Although the State has the power to permit a comprehensive beach access and use program by using its eminent domain power and compensating private property owners, it may not take property rights without compensation through legislative decree. See Eaton v. B.C. & M.R.R.,
Based on our- response to your third question, we deem it unnecessary to answer your fourth question.
We emphasize that this opinion does not amount to a judicial decision. An opinion of the justices on proposed legislation is not binding upon the court in the event the proposed legislation
October 27,1994
Jeffrey R. Howard, attorney general {Anne E. Renner, assistant attorney general, on the memorandum), filed a memorandum in support of negative answers to questions one and two.
Thomas J. Kirby, of Pelham, filed a memorandum on behalf of twenty-three members of the New Hampshire House of Representatives, in support of an affirmative answer to question one and negative answers to questions two, three, and four.
McLane, Graf, Raulerson & Middleton P.A., of Concord {Gregory H. Smith & a. on the memorandum), filed a memorandum on behalf of the New Hampshire Senate, in support of an affirmative answer to question one and negative answers to questions two, three, and four.
Senator Burton J. Cohen, of New Castle, filed a memorandum in support of negative answers to the questions presented.
Upton, Sanders & Smith, of Concord {Frederic K. Upton on the memorandum), filed a memorandum on behalf of affected beachfront property owners in support of affirmative answers to the questions presented.
Michael L. Donovan, of Concord, filed a memorandum on behalf of the Town of Rye in support of negative answers to the questions presented.
Noucas & Keenan P.A., of Portsmouth {Christopher W. Keenan on the memorandum), filed a memorandum on behalf of the Concerned Citizens of the Seacoast, in support of negative answers to the questions presented.
Dr. Chris D. Kehas, of Rye Beach, filed a memorandum in support of an affirmative answer to question one and negative answers to questions two, three, and four.
Stephen J. Little, Mary Gladys Little, and Richard D. Little, of Portsmouth, filed a memorandum in support of affirmative answers to the questions presented.
Byron M. Philbrick, of Rye, filed a memorandum in support of affirmative answers to the questions presented.
Eugene Ritzo, of Rye, filed a memorandum in support of affirmative answers to the questions presented.