A letter to the editor (“Rise up and protect our shoreline access,” The Independent, March 3, 2016) highlighted claims by James Bedell, described as a “local shoreline access advocate,” that asserted his view that the public “should have unfettered access to and across it [i.e. the shoreline] all the way up to 10 feet past the high-tide line.”
In such report, the shore access proponent recognizes “the problem” that “it is technically private property” and is asserting an easement in favor of the public across this property.
Apparently this shoreline advocate practices what he preaches, as he admits that “when I walk across people’s patios, I know people are inside their house fuming – and I’m not even stopping to fish, which I could be doing.”
That is, of course, trespass, and there are laws against it.
The Rhode Island courts have unequivocally established that the public trust property subject to public use and enjoyment is below the mean high tide line, and above that line, it is private property. There is no legal sanction to allow someone to crawl over someone’s patio because they claim an interest in access to the shore.
Our courts have addressed these issues over two centuries, and they have done so in the context of the Rhode Island constitutional provision pertaining to the public’s rights to enjoying the privileges of the shore.
These court decisions have been remarkably consistent over the years in seeking to balance public and private property rights at the shore. It was to maintain this careful balance that the Rhode Island Supreme Court in 1982 clearly and firmly established the boundary between public and private rights at the shore as the mean high tide line. That is the line which is calculated by reference to the 18.6 year Metonic cycle (the cycle when the new moon starts and ends on the same day).
In choosing this measurement, the court wisely rejected two other alternatives. One potential boundary was the lowest tide line, which the court rejected as this would rob the public of access to dry sand. The other alternative rejected was the line formed by the highest throw of seaweed on the sand. While the court saw the benefit of a line visible on the beach, it reasoned that it would unduly take property from private landowners.
The court also saw benefit in using the mean high tide line as it was a line that could be calculated with mathematical precision, and in fact it requires a surveyor to establish that line. The court apparently also saw benefit in using this line when balancing public and private rights at the shore because it was an average measurement over a long period of time.
In choosing that boundary line, our state Supreme Court also had the benefit of following federal precedent established by the U.S. Supreme Court.
Accordingly, when beach-goers are traversing the shore above the highest throw of seaweed on sand, they should have a pretty good idea that they may be trespassing. If they are crawling across someone’s porch or patio, they should have little question they are trespassing.
It is, of course, the local police who are the first line of defense in enforcing trespassing laws, and that is a difficult job. Waterfront property owners could engage a surveyor to set bounds establishing the mean high tide line. And in Rhode Island, not only is trespassing an offense, but it is also a crime punishable by fine or imprisonment to remove boundary markers set by a surveyor.
So whatever someone thinks, or wishes, the boundaries should be at the shore, we are a nation of laws, and we are supposed to deal with what conforms to law, and as to the public-versus-private boundary line at the shore, that means the mean high tide line.
The author practices law in Providence. His latest book, “Buying, Owning and Selling Rhode Island Waterfront and Water View Property,” was published earlier this year and discusses waterfront property rights in detail.