Published in The Providence Journal (July 6, 1995)
The Rhode Island Supreme Court’s recent decision interpreting the public trust doctrine has cleared the ownership status of much of Downtown Providence and established an important test to confirm private ownership rights in land throughout the State which has been reclaimed from the sea.
The interpretation of Hall v. Nascimento by many in State government and by environmental and other citizens groups raised tremendous concern not just among private property owners, but among business as well.
Because much of Downtown Providence was formerly occupied by the several hundred acre Great Salt Cove, there was a question as to whether the State, and not the private record title holders, owned these extraordinarily valuable former Cove Lands.
The issue also arises along our coastline and tidal rivers, since today cottages, year round residences, restaurants, marinas, warehouses, and other commercial enterprises are often located on filled tidal land.
The Greater Providence Chamber of Commerce, the Rhode Island School of Design, Narragansett Electric Company, and Providence Gas Company sought a declaratory judgment action to clear the status of title. They were supported by prominent businesses, including Fleet National Bank, Citizens Bank, Rhode Island Hospital Trust National Bank, Johnson & Wales University, and Capital Properties, and by the New England Legal Foundation.
To his credit, Attorney General Jeffrey Pine agreed to an expedited court process in order to place this matter before the Rhode Island Supreme Court for resolution as soon as possible.
Two of the properties at issue, the office building occupied by the Greater Providence Chamber of Commerce and the former Providence Market House, constructed in 1773 and now occupied by the Rhode Island School of Design, were located in the former Providence Cove Lands. As to these properties, the State conceded, and the Rhode Island Supreme Court agreed, that a deed from the State of Rhode Island to the City of Providence in 1870, conveying all of the Cove Lands to the City, extinguished the public trust doctrine in such lands. Accordingly, the Court’s holding leads to the conclusion that all properties located in the former Providence Cove Lands are no longer subject to a claim of State ownership under the public trust doctrine.
The two other properties at issue, the Providence Gas Company’s 16 acre parcel, used for the conversion of liquefied natural gas, and Narragansett Electric Company’s eight acre South Street Station, an active transmission facility, were located on the Providence River on land created by the placing of fill to a harbor line.
A harbor line is an imaginary line drawn in the water which establishes the limits to which land can be created or docks and other structures built without being deemed to interfere with the public trust uses of fishery, commerce and navigation.
Our Supreme Court was clearly concerned about any interpretation of Hall v. Nascimento which would apply the holding in that decision to all filled tidal land. While reaffirming its decision in Hall v. Nascimento, the Court was careful to limit that 1991 decision to its narrow facts.
Finding that the Providence Gas Company parcel had been filled with express State approval, and the Narragansett Electric Company parcel had been filled with the State’s tacit or implied approval, and that both properties had been substantially improved, the Court stated that “these factors establish that the fee simple absolute title rests in the title holders, the electric company and the gas company.”
In doing so, the Court reaffirmed dicta in two 19th Century Rhode Island Supreme Court decisions that when land is created by the placing of fill to a harbor line, or the equivalent of a harbor line, and improved, the land becomes private property. (Dicta is a nonbinding statement of a court’s opinion on a particular issue.)
However, the Court also recognized the importance of resolving this issue not just for the four properties at issue, but for the literally thousands of properties throughout the State which include filled tidal land.
This holding is predicated upon non interference with the public trust rights of fishery, commerce and navigation.
The Court specifically provided that under such circumstances the littoral owner “may pursue a course of action seeking to convey the deed to that property to himself or herself and become owner in fee simple absolute. . . .”
Title insurers doing business in Rhode Island are now reviewing this decision to determine what information they will require with regard to specific properties in order to issue policies on filled tidal land which insures against any claim of state ownership under the public trust doctrine.
This important decision should allow owners to remove the cloud over private title to the thousands of Rhode Island business, residences and commercial establishments located on filled tidal lands, allowing them to be used, bought, sold, mortgaged, and insured without a question that the state could sometime in the future claim an ownership interest under the public trust doctrine.
The Court’s decision represents a careful balance of the public’s rights under the public trust doctrine and the rights of private property.
The Court expressly reaffirmed the validity and the vitality of the public trust doctrine in Rhode Island, under which the State continues to hold all land below mean high tide for the benefit of the public for purposes of fishery, commerce and navigation. However, the Court balanced this right with the rights of ownership of private property. Many of the properties at issue have been held in private ownership for generations, if not hundreds of years, have been built upon and improved at private, not public expense, and have been subject to the assessment of property taxes.
By its decision, our Supreme Court has recognized that to protect the public’s interest under the public trust doctrine, the limits of state power need not extend beyond the boundary of legitimate private property rights.