110 N.H. 8 | N.H. | 1969
Appeal under RSA ch. 541 from orders of the New Hampshire Port Authority (RSA ch. 271-A) made under the provisions of RSA ch. 483-A entitled “Tidal Waters.”
Section 1 of that chapter provided in part as follows: “No
Plaintiffs, Howard W. and Olivia F. Sibson, own a parcel of land in Rye containing about four acres situated on U. S. Route 1A more or less opposite the entrance to Ragged Neck Park, commonly known as Rye Harbor State Park. They sought permission under RSA ch. 483-A to fill this land, now divided into 11 lots, for the purpose of erecting ahorne for themselves on one lot and “possibly build homes” on the other 10 lots “and sell them.” This parcel is “marshland” and as to the fill required Mr. Sibson “couldn’t honestly say whether it was four feet or three feet or what.” The Fish and Game Department opposed plaintiffs’ request. Its marine biologist testified that there was saline water on the property and that circulation takes place in the area. He further testified that filling of this property would destroy “roughly four acres of nutrient producing grasses and algae which will have a detrimental effect on fisheries in our nearby coastal waters.” There was evidence from another marine biologist that this site “is part, not of the salt marsh proper, but of the landward side of the salt meadow, an area of differing conditions and properties from the rest of the productive estuary.” He further testified that these areas “do not add to the estuarine ecology.”
The Authority denied the Sibson petition for permission to fill their land. After a requested rehearing, in reaffirming its previous decision, the Authority made the following statement:
RSA ch. 483-A by its terms applies to “any bank, flat, marsh, or swamp in and adjacent to tidal waters.” S. 1. Tidewaters “are those in which the tide ordinarily ebbs and flows, including the sea, and also bays, rivers, and creeks, so far as they answer this description. A body or stream of water cannot be considered as tidal merely because, under unusual circumstances, the level of the water is affected by the tide, nor is the amount of salt in the water material.” 2 Tiffany, Real Property (3d ed.), s. 659; Nudd v. Hobbs, 17 N. H. 524; Clement v. Burns, 43 N. H. 609, 621; Concord Manufacturing Co. v. Robertson, 66 N. H. 1, 4, 7; 56 Am. Jur., Waters, s. 448. See Borax Consolidated v. Los Angeles, 296 U. S. 10, 22, 27.
It is well-established law in New Hampshire that, subject to the power of the Federal Government to act to the extent necessary in the interest of interstate or foreign commerce (State v. Zetterberg, 109 N. H. 126, 129), tidewaters are public waters. As such they are within the power of the Legislature to make such laws as the public good may require. State v. Sunapee Dam Co., 70 N. H. 458, 460; St Regis Co. v. Board, 92 N. H. 164, 169; New Hampshire Water Resources Board v. Lebanon Sand & Gravel Co., 108 N. H. 254. Regulations such as prescribed by RSA ch. 483-A “to prevent . . . fill runoff back into tidal waters” and “to protect . . . marine fisheries and wildlife” (s. 3) are in “the public good.” State v. Stafford Company, 99 N. H. 92, 97; Commissioner of Natural Resources v. Volpe & Co., 349 Mass. 104; Colberg, Inc. v. California, 67 Cal. 2d. 408, 416. See United States v. Rands, 389 U. S. 121.
It follows that the rights of littoral owners on public waters are 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. State v. Stafford Company, supra; Colberg, Inc. v. California, supra, 422; United
RSA ch. 483-A by its terms regulates designated lands “in and adjacent to tidal waters.” S. 1. This court held in State v. Downs, 59 N. H. 320, 321 that “adjacent to,” “adjoining,” and “contiguous” were synonymous and meant “in contact with.” If the terms of this statute were interpreted to mean that the Legislature intended to regulate all marshlands and wetlands no matter how far removed from the sea, the public purpose, if any, to be accomplished in comparison to the restrictions imposed on the property of such owners would make the statute in this respect of doubtful constitutionality. Michaelson v. Silver Beach Improvement Ass'n, 342 Mass. 251; Goldblatt v. Hempstead, 369 U. S. 590.
However, a statute will be construed to avoid a conflict with constitutional rights whenever that course is reasonably possible. Corning Glass Works v. Max Dichter Co., 102 N. H. 505, 509. Consequently we hold that RSA ch. 483-A was intended by the Legislature to be an exercise of its “dominant servitude” over tidal waters and to apply only to land in or contiguous to tidewaters, that is, to land of littoral owners. United States v. Rands, 389 U. S. 121, 122; State v. Stafford Company, 99 N. H. 92. See RSA 482:41-e, ch. 488-A. See also, Mass. Gen. Laws, ch. 130, s. 27A, “bordering on coastal waters.” We concur in the position taken by the State in its brief and with the contention of the plaintiffs that on the record their property does not fall within the purview of RSA ch. 483-A and that the orders made thereunder by the Port Authority relative to it are null and void for lack of jurisdiction.
RSA 483-A has been amended in several respects by Laws 1969, ch. 387. Additionally, Commissions have been established
Appeal sustained.
