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Old 03-24-2006, 04:08 PM   #10
Mike P
Jiggin' Leper Lawyer
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Join Date: Oct 2000
Location: 61° 30′ 0″ N, 23° 46′ 0″ E
Posts: 8,158
Just a caution---if this bill passes, a court challenge from shorefront landowners is virtually a certainty.

Some years ago, the Mass Legislature considered a bill that expanded the long-standing "right of passage" in the intertidal zone (ie, between mean high and low water). In Mass, a shorefront property owner has title to the mean low water mark. However, from ancient Colonial times, there has also been a right of passage between high and low water for purposes of fishing, waterfowling and portage. The bill would have expanded this right of passage to the general public, for any purpose. Before the bill could be voted on, a court challenge to it was instituted, as Mass allowed, at the time, for courts to issue what are called "advisory opinions" in certain circumstances. The challenge went all the way to the Mass Supreme Judicial Court, which held that it would be a "taking" of private property, under eminent domain, for public purposes and required compensation to the landowners. The bill was never enacted.

However, as I understand it, Maine, which has identical property laws to Mass, did successfully enact a bill giving the public at large a right of passage, that survived a court challenge.

Your mileage in Rhody may vary. As I understand it, RI adheres to the general US and English rule that a landowner owns to the mean high water mark. Redifining the "shore" as beginning 10' landward of high water might be considered a "taking" of 10' of property from the landowner for public purposes. Or it might not.

Wise men speak because they have something to say; Fools, because they have to say something.
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