I have seen different explanations of the rights of private property owners vs. the rights of beachgoers in Massachusetts but remain confused. Can you explain? Anonymous.
In most states, coastal property owners control and own the land down to, but not beyond, the high-water mark. As long as beachgoers don’t cross that line of seaweed and broken shells, they can use the beach for any legal purpose. However, in 1641, the Massachusetts Bay Colony conveyed most, but not all, rights of ownership to the area between the high water mark and the low water mark (up to 1,650 feet from the high water mark) to coastal landowners. The land—but not the water—between the two tide marks became known as “private tidelands.”
With some limited exceptions, beachgoers in Massachusetts cannot stroll in that area, or make sand castles, without the permission of the upland property owner. Because the water is not privately owned, beachgoers may swim anywhere, but if they touch the private tidelands with toe or tummy they have, in theory, committed a trespass.
However, the “Colonial Ordinance” reserved specific rights of public use within the private tidelands. Those permissible uses have been broadly interpreted by Massachusetts courts to include: (1) the right to fish or to collect shellfish on foot or from a vessel; (2) the right to navigate, including the right to float on a raft, windsurf, or sail; and (3) the right to hunt birds for sport or sustenance, on a boat or on foot. (Though there is no court decision on point, the Attorney General maintains that this right also covers bird-watching.)
This column relies heavily on an excellent summary of the law and history of this issue published by the Massachusetts Office of Coastal Management: http://www.mass.gov/czm/shorelinepublicaccess.htm.
(Submitted by the Editor)