Many assume that the waterfront between the high and low tide line is common ground, accessible to all. Customary use over time, some waterfront owners believe, obligates them to tolerate those who enjoy the beach and who explore the area below the high tide line. Other shorefront property owners, however, become anxious when trespassers appear and some insist on their right to exclude others as far down as the low tide line.
A couple of summers ago, three girls were walking along a beach in a settled shorefront Islesboro neighborhood. They had walked this beach previous summers without complaint from shorefront residents. They were collecting small crabs and putting them in a plastic bucket.
But a recent purchaser of a shorefront cottage confronted the girls when they wandered across the tidal area in front of her house, insisting that the girls were on her property and that they were compromising her view of the bay. Taken aback by her behavior, the girls moved off to the side of the beach and counted the crabs they collected, mindful of this change in the character of their street.
The neighbor who confronted the girls was correct in assuming that her property included the beach and the area below it that the girls were exploring. The legal tradition that supports this view reaches back to colonial days. A Massachusetts colony ordinance of 1640–1647 still shapes our modern perspective on this issue: “… in all creeks, coves and other places about and upon the salt water where the sea ebbs and flows, the proprietor … shall have propriety to the low water mark …” This tradition prevails today because property ownership – and the defense of that property – is encouraged.
Owners can call local police to defend their property rights below the high tide line. It is unlikely, however, that island police would respond to complaints about trespassers walking across private beaches. Not only do police have more important problems to investigate but also they can’t admonish trespassers if boundaries below the high tide line are not marked.
A property line below the high tide line is not always a straight extension of a land-based property line, especially on the coast. Don Garrold, a surveyor and a volunteer at the Penobscot Marine Museum in Searsport, says that surveyors apply a rule when determining the direction a property line takes as it descends into the tidal area. The rule involves the application of basic geometry and the knowledge of neighboring property lines. The process resembles connecting dots that represent the corners where property lines intersect the high tide line, drawing perpendiculars and bisecting angles. It is possible to determine where one’s property line extends into the tidal area but sometimes, Garrold says, it can be a “tough determination.” In addition to the financial cost of confirming the direction one’s line takes it may well be that the owner may be disappointed in the results of the survey.
Garrold adds that tidal property has the same “value” as property above the high tide line. In the past, tidal property has been sold to those who harvested marsh grass, for instance. An old proprietor’s map on record in the Waldo County Registry of Deeds illustrates these agreements. A person bought grassy acreage below the high water mark just like buying any other land. Fish weirs were built on private property in tidal regions. And it can still be done. If a particular tidal area produces an abundance of bloodworms, for example, a fisherman could lease or buy that area even though it’s below the high tide line. The fact that this rarely happens now is less important than acknowledging the powerful belief in the value associated with property ownership and that belief extends even below high water.
Though the knowledge that shorefront property owners do have the right to at least try to exclude others may disappoint some, the idea of property lines extending below the high tide line might work in favor of those trying to restrain the proliferation of long docks. A person cannot, it is assumed, extend a dock across a property line, even one that is submerged. Care would have to be taken while designing a site plan for a dock if property lines below the high tide line restrict the location of the placement of piers, for instance. It may be that a project would have to be postponed for further (and expensive) surveys and legal assistance or abandoned if lines are indistinct and neighbors are not satisfied.
As the coast becomes more crowded, the principle of setbacks might also apply to tidal property someday. On dry land a setback prevents a structure from being built within a certain number of feet from a property line. Setbacks could be used to limit building in tidal areas by dramatically reducing the area in which a dock could be sited. Some projects might be undoable, forcing local residents to negotiate sharing the use of an existing dock and agreeing as friends that obligatory annual maintenance fees might be a convenient alternative to building one’s own private dock.
The idea of owning land to the low tide line might seem discouraging to those who don’t own shorefront property, yet who love to quietly and harmlessly explore tidal regions. Garrold says that owners customarily “look the other way” when shorefront enthusiasts trespass and he recommends continuing this custom. A person could be correct in claiming ownership to tidal property, but he might not be right to admonish trespassers. A reputation for being the neighborhood grump is difficult to overcome, especially among children.
Randy Purinton walks the waterfront on Islesboro.