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Right of Passage


In a letter dated October 24, 2012 to Seabreeze property owners, Alan J. Knauf, the attorney for Restore Public Water Rights in Rochester, NY, Inc. writes the following:

"While originally the case also included a claim that the additional beach, which accumulated since 1984 when the Irondequoit Bay Pier was built, was public land, we have (by the enclosed Notice of Partial Discontinuance) deleted that claim, so as to not create a real estate issue for you."

"Our only claim related to the beach is that the public has the right of passage along the lake shore below the ordinary high water mark."

Oh really!

In light of the many precedents regarding accretion (Who's Beach is it, anyway?), I'm not surprised by the discontinuance. Pleased, but not surprised. That leaves the question of the public's right of passage along the lake shore. Even a cursory examination of this centuries-old clashing of public and private interests will reveal that half a dozen different jurisdictions along the Great Lakes have through the years reached a dozen different resolutions. And often, just a few years later, promptly reversed themselves.

Case in Point in Ohio

The Ohio Supreme Court this week ruled that the public has no right to use the shore of Lake Erie above the natural shoreline, which it defined as the line at which water usually stands when free from disturbing causes. The Court in State ex rel. Merrill v. Ohio Department of Natural Resources also decided that same line represents the boundary between privately owned uplands and the state-owned lakebed.

The unanimous 7-0 decision reversed aspects of earlier decisions in this case by lower Ohio courts which had drawn the boundary line for purposes of the public trust and state ownership at the water’s edge as it exists moment to moment. However, the Court also rejected the argument advocated by other parties in the case, the State and two environmental groups, that the boundary should be the ordinary high water mark (OHWM).

The Merrill case was begun in 2004 by a group of lakefront property owners in response to ODNR’s position that the state owned the shore up to the OHWM and the owners must obtain leases from the state for certain uses of the shore below the OHWM. (ODNR subsequently abandoned that position, leading the court of appeals to rule that the Ohio Attorney General lacked standing to pursue the appeal on behalf of the State, a ruling that the Supreme Court reversed.)

Although the case began as a dispute over title, also at issue was the public’s right to use the Lake Erie shore. Pursuant to the public trust doctrine, the public has a right to use land and water within the public trust for certain important purposes, including boating and fishing. It is undisputed that Lake Erie and the lakebed are owned by the state and are subject to the public trust. The Merrill case involved questions of how far state ownership and the public trust extend up the Lake Erie shore and, secondarily, whether walking the shore is a protected use.

The Lake County Court of Common Pleas and the Ohio Court of Appeals for the 11th District had ruled that the public has no right to use the Lake Erie shore above the water’s edge. The public has a right to walk along the shore, but only to the extent they keep their feet wet by staying on state-owned lakebed. The Ohio Supreme Court did not expressly discuss the public’s right to walk along the shore, but it did hold that the territory held in trust by the state does not extend landward beyond the “natural shoreline” as it defined the term, meaning that the public has no right to use the privately owned shore above that natural shoreline.

Although the Court of Appeals had called the case one of “first impression,” the Supreme Court emphasized that its decision regarding the boundary of the public trust along the shore of Lake Erie was merely a reiteration of law settled in an 1878 Ohio Supreme Court case, which was clarified in a 1916 Court case and codified by a state statute in 1917.


In Massachusetts

A "public on-foot free right-of-passage" along the seashore between the mean high water line and the extreme low water line is not a natural derivative of the rights of fishing, fowling and navigation over the tidal lands preserved for the public by the colonial ordinance of 1647 [684-688]; nor have the rights so preserved been expanded by the passage of time to uses for public recreation in tidal lands privately owned [688-689].

Establishment of a "public on-foot free right-of-passage" over tidal lands privately owned, as proposed in a pending legislative bill, thereby denying the owners' right to exclude the public therefrom, would not be an uncompensable exercise of the police power, but would constitute a compensable taking for public use under art. 10 of the Declaration of Rights of the Massachusetts Constitution, and the Fourteenth Amendment to the United States Constitution. [689-690]

In a pending legislative bill proposing a "public on-foot free right-of-passage" over tidal lands privately owned, a provision that "any person having a recorded interest" in such land may petition the Superior Court "to determine whether . . . [the bill] or the activities authorized . . . [thereby] constitute an injury for which the owner is entitled to compensation" under G.L.c. 79, is insufficient to satisfy the constitutional requirement of fair compensation for a taking by eminent domain [690-691]; the provision raises serious constitutional questions with respect to the separation of powers [691-692]; and the procedure proposed in the bill is inadequate both in the scope of its potential compensation and the notice accorded to property owners of their right to recover damages [692-694].

On June 27, 1974, the Justices submitted the following answer to a question propounded to them by the House of Representatives:

The Justices of the Supreme Judicial Court respectfully submit this reply to the question set forth in an order adopted by the House on May 8, 1974, and transmitted to us on May 10, 1974. The order recites the pendency before the General Court of a bill, a copy of which has been transmitted to us with the order. This bill is entitled, "An Act authorizing public right-of-passage along certain coastline of the Commonwealth" (House No. 481).

We are unable to find any authority that the rights of the public include a right to walk on the beach. In a case presenting a very similar question to that raised by the bill, it was held that the public rights in the seashore do not include a right to use otherwise private beaches for public bathing. Butler v. Attorney Gen. 195 Mass. 79 (1907). "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, we think, that under the law of Massachusetts there is no reservation or recognition of bathing on the beach as a separate right of property in individuals or the public under the colonial ordinance." Id. at 83-84. See Michaelson v. Silver Beach Improvement Assn. Inc. 342 Mass. 251 (1961).

When all is said and done

Aside from the principle of the thing, who stands to gain here? Even if the public should be given the right of passage, passage to what? The last house on the beach? Seabreeze is a sandbar, the fore shore a dead end.

It certainly will not benefit the boaters. Every case I've looked at specifically excludes the right of access from the water except for emergencies. A stroll along the fore shore isn't the same as coming off your boat to party it up on the beach. And if there's one restriction every jurisdiction bordering the Great Lakes has agreed on it's this: Don't bring a six-pack, a folding chair and a picnic basket. Passage or not, it's still private property. That's true even in Canada, where the public's right of passage has been rejected more than once.