Have you ever set out on a long walk down the beach, only to stop short when a sign indicates that a portion of the beach is private property? Does the homeowner own the beach all the way to the water? Edward Englander, founding partner of E&C, is known for his expertise in disputes involving beach rights. In this Q & A, he shares some insights with us.
Are beach rights the same in every state?
In most states, beaches are public. In Massachusetts, our laws reflect policies established in the 1600s, when the Massachusetts Bay Colony took land from the King and gave ownership to the colonists. It was a bold move at the time, but after the Revolution, it meant that the land seaward of the high water mark was not in the public trust. There are public rights, but there is private ownership. The Colonists established the public rights to fish and fowl and navigate. The attorney general has made a modern exception. “Fowling” can mean walking on the beach with binoculars — birding rather than hunting. This exception has not been tested or upheld in a court. There is no exception for beach blankets or volleyball.
Does this mean that beach rights are more frequently contested in Massachusetts than elsewhere?
It means there is a unique aspect to cases in Massachusetts. Beaches are open to the public in most states between high and low water where the tide ebbs and flows, but in Massachusetts there can be private ownership of tidelands depending on the language in the deeds dating back to the 1600s.
How did you get involved with beach rights cases?
The first case I litigated was in Hyannis Park, Weiss v. Kevorkian. As part of that case, I studied the Colonial Ordinance of 1641/47, which is the foundation for the Massachusetts beach rights laws today. People began coming to me because I had developed expertise in a complex area. Since that first case in early the 1980s, I’ve done many others.
Could you provide an example of a recent beach rights case and how it resolved?
Leahy v. Graveline is a great example. I represented what are known as “back lot” owners in Hyannis Park in West Yarmouth on Lewis Bay. Peter Kevorkian’s case only settled the rights for a small portion of the beach at Hyannis Park. In Leahy v. Graveline, the litigation involved all of the beach. The back lot owners – the owners of lots that did not have beachfront access – sued all the waterfront owners, claiming a right to use the beach. The lower Court ruled the back lot owners have a right to use the beach, based on a theory called implied easement – essentially finding beach rights were intended based on the layout of the subdivision. There were six roads laid out in the subdivision, all of which went to the beach and ended at the beach. Each house fronted on a road and the beach was not conveyed to anyone.
How do you prepare for a case like this?
In this case, we reviewed the deeds of record, the plans of record, and advertisements for the sale of the lots in the development in the 1890s. The Hyannis Park subdivision was created in 1892 and was marketed as providing water access to all residents. In the original deeds, each lot was a small rectangle. We hired a surveyor to detail the boundaries of the waterfront lots in comparison to the high and low water lines. Of note in the title, the last of the lots in the subdivision was sold around 1906. In 1926, someone calling himself the “surviving trustee” of the development company started deeding out pieces of the beach, but the problem was he had absolutely no authority to sell the beach area to anyone. The Land Court found those deeds were null and void. The Land Court found that title to the beach rested in the heirs of the original developers and it still rests in those heirs. Significantly, the Land Court found that the beach area was subject to an implied easement allowing all of the back lot owners at Hyannis Park to use the entire beach area.
The case was appealed by one of the beach front owners who refused to accept the decision of the Land Court. The Appeals Court issued its ruling in our clients’ favor on July 12, 2012. The decision upheld the ruling of the Land Court in its entirety, confirming an easement to use the beach by implication that the waterfront owners had not extinguished. We demonstrated to the Land Court judge at trial and in our appellate brief that the back lot owners had used all of Hyannis Park beach for usual beach purposes. The waterfront owners could not show they had gained rights to the beach by adverse possession against the original heirs of the developers or the back lot owners. It is extremely difficult to establish rights by adverse possession to land like a beach where there are no boundaries or evidence of use on the ground. The appellate court ruling affirming the existence of beach rights in this case is clearly the right result.