December 3, 1999
PUBLIC RIGHT OF ACCESS TO BEACHES
By: Matthew Ranelli, Associate Attorney
You asked for a summary of the law regarding public access to beaches under the Public Trust Doctrine including access to the beach area. Specifically, you asked for information on Connecticut and New Jersey.
Beaches between the high and low water marks are part of the public trust in Connecticut and New Jersey as well as other states. The public trust is a common law doctrine. Essentially it holds that the state, on behalf of the public, holds title to the navigable waterways and lands beneath them and the living resources inhabiting them. This includes the beaches below the mean high-water mark.
The public trust traditionally does not extend to the beach area above the high water (i.e., the dry-sand beach). But several states recognize either a right of access across the dry-sand beach or a right-of-way along it. This right to access beaches is usually based in the principle of customary law or some extension of the public trust doctrine. Customary law is law formed based on a historical usage or right that extends back to “time immemorial” or long enough to be “uncontradicted by the memory of man.”
The customary right of access had long been ignored by courts and legislature. Oregon is generally credited with resurrecting the customary right of public access to dry-sand beaches. Several New England States and New Jersey also have recognized the right. Connecticut's Supreme Court has rejected customary law theories.
The idea that the public has a right to access and enjoy the seashore has ancient roots dating back at least to the sixth century Roman code of Justinian. The right was imported into the English common law tradition and through that to the United States after the American Revolution. Every state, upon recognition of statehood, receives ownership of the public trust lands.
The Public Trust Doctrine exists in every state. Under the doctrine, states hold special title to the tidal and navigable water, the lands beneath them, and the living resources that inhabit them. Specifically, the state holds title to the beach area waterward of the ordinary high tide line. The state holds the title in trust for the benefit of the public. The public has a right to use and enjoy the public trust lands for a variety of purposes such as fishing and bathing.
In theory, the title to public trust land has two components (1) the public trust (i.e., jus publicum) and (2) the private property rights (i.e., jus privatum). This theoretical split in title allows private property owners abutting the public trust to acquire a portion of the title for limited rights to use the public trust land for docks and other coastal activities. But the rights are limited to prevent them from unreasonably impairing access to the public trust lands.
The doctrine has been incorporated into the statutes (or even the constitutions) of most states.
DRY-SAND BEACH ACCESS
Several states have enacted or considered laws in the past 50 years to legislate or codify a public right to the dry sand beaches. These laws, referred to as open beach laws, take several forms. But all generally allow the public to cross and use the dry sand area.
In New England, open beach bills have been rejected in advisory opinions by the states' Supreme Courts as unconstitutional takings (see generally The Curious Resurrection of Custom: Beach Access and Judicial Takings, David J. Bederman, 96 Colum. L. Rev. 1375 (1996)). The Massachusetts House of Representatives requested an advisory opinion from the state Supreme Court in 1974 on a bill to create a right of access over the dry-sand beach. The court concluded that the bill would constitute an unconstitutional taking. In 1994 New Hampshire's Supreme Court rejected a similar bill in advisory opinion. And in 1989 Maine's Supreme Court struck down the Maine Public Trust In Intertidal Land Act (Bell v. Town of Wells, 557 A.2d 168 (Me. 1989).
In other states, such as Texas and Oregon, the laws have been upheld and opened vast expanses of beach to the public. Texas passed its open beach law in 1959 and Oregon passed its in 1969. According to Bederman, the laws in Texas and Oregon are materially different from the New England bills. Whereas the New England bills attempted to establish that a customary right existed, the Texas and Oregon laws simply said that if such a right exists under one of several legal theories the title would vest to the state. In effect they left the door open for the courts to decide whether the right existed. The courts in Texas and Oregon subsequently affirmed the publics rights. The Texas court used the traditional theory of prescriptive easements while the Oregon court took a more innovative approach.
In recognizing the public's right to the dry-sand beach, the Oregon court took judicial notice of the customary law theory to expand its decision to cover all of the state's beaches along the Pacific Ocean (see State ex rel. Thornton v. Hay, 462 P.2d 671, 672 (Or. 1969)). In that case, the state sought to enjoin Hays from building fences and other improvements on the dry-sand beach of their beach-front property. Essentially the state argued that it held a prescriptive easement on the property that would be unreasonably impaired by the construction. The court noted prescription decisions only apply to the specific tract of land in question and that deciding the case on that basis would lead to tract-by-tract litigation of beach-front property rights. Instead the court decided that the entire ocean-front of the state ought to be treated uniformly. It took judicial notice of the customary law doctrine and found that the public's access to and use of the dry-sand beach had been the custom of the land since the beginning of the state and beyond.
In Connecticut, the courts have recognized the public trust doctrine as it applies to the waterfront since at least 1933. The state Supreme Court noted “the public, whose representative is the state, is the owner of the soil between the high and low water mark on navigable water where the tide ebbs and flows. The owner of the adjoining upland has certain exclusive yet qualified rights and privileges in the submerged land adjoining his upland” (Rochester v. Barney, 117 Conn. 462 (1933). However the court has not recognized a public right to the dry-sand beach. The court may have taken note of the various decisions and legal theories of recognizing such a right, but has not found them applicable to a case in controversy (Leabo v. Leninski, 182 Conn. 611 (1981)).
In fact the court has specifically rejected the use of the customary law doctrine to establish a right of way or an easement (Graham v. Walker, 78 Conn. 130 (1905)). The court noted that “[o]wing to essential differences between the legal and political institutions of the two countries, the law of this State, unlike the common law of England, does not sanction the establishment of personal rights of way or other easements by immemorial local custom.”
A lawsuit, currently awaiting review by the state Supreme Court, regarding public access to the town beach in Greenwich does not necessarily relate to the public trust doctrine as it applies to beaches, rather it argues the beach is in the public trust because it is a municipal park (Leydon v. Town of Greenwich, CV 95 0143373 S, (July 1998)).
In New Jersey the courts have recognized the public trust doctrine to give all residents access to the state's public trust land. Recently, the courts expanded the public's right to include use of the dry-sand beach (Matthew v. Bay Head Improvement Association, 471 A.2d 355 (1984)).
In that case, town residents sued the beach association and beachfront property owners asserting that defendants denied public its right of access to public trust lands on the beaches in the municipality and its right to use private property fronting on the ocean incidental to public's right under the public trust doctrine. The court held the public must be given both access to and use of privately owned dry sand areas as reasonably necessary under the public trust doctrine. The court noted that it did not need to rely on legal theories used in other jurisdictions such as prescriptive easements or customary law. Rather it decided to simply modify the public trust doctrine to reflect the reality of the times that people need to use the dry-sand beach to enjoy the area below the high water mark. The court stated that “[a]rchaic judicial responses are not an answer to a modern social problem. Rather, we perceive the public trust doctrine not to be “fixed or static,” but one to “be molded and extended to meet changing conditions and needs of the public it was created to benefit.”