Opinion: Erosion Does Not Erode Ownership

By Chuck Parrish, Vinyard Gazette

House bill 254 is not constitutional and if up held would set a dangerous precedent, potentially affecting all waterfront landowners.

The bill, recently voted out of the committee on natural resources, seeks to create public ownership of accreted land following the landward or lateral movement of barrier beaches by natural processes. It is purported to be a simple codification of settled law and applicable only to a few properties with a barrier beach between the ocean and a Great Pond. In fact, it is not about settled law, but rather an attempt to reverse what has been the law since colonial times.

Since the early days of the Colony, accreted land has belonged to the adjacent upland property owner. Conversely, land that erodes becomes public water bottom. This has always been true on a Great Pond or the tidal shoreline.

In a leading case on Great Ponds, Lorusso vs. Acapesket, the Massachusetts Supreme Judicial Court in 1990 held that as a barrier beach migrated into Falmouth’s Green Pond over the public bottom, five upland lot owners, newly adjacent to the barrier beach, acquired the accreted land. A more seaward landowner lost ownership to erosion. Part of the state’s pond bottom rose to become private land and private beach eroded, becoming state bottom in Vineyard Sound.

I welcome notice of any Massachusetts law or court decision that would establish a public right to ownership of land that has accreted onto private property. If new land is created by man or caused by sudden events, like storms, it is not accretion. If created directly as part of an aid to navigation (not incidental spoil) it is public. Otherwise the cases of which I am aware indicate new land accretes to the adjacent landowner.

Even if passed, this bill would certainly be litigated all the way to the U.S. Supreme Court, if necessary. Otherwise, it could become a precedent for public taking of private property rights that could affect the entire country.

It has been argued that Great Ponds are a unique case. I have asked several attorneys for any reason that this situation might be unique and therefore would not be a precedent for other waterfront lands. So far no one, opponent or proponent, has provided a persuasive distinction. If, by legislative fiat, rights to ownership of private property can be expropriated along the shore of Great Ponds, then private property could similarly be expropriated or subjected to onerous regulation or fees along any shoreline facing public water bottoms.

A key question centers on the fact that House bill 254 includes no date to establish a historic shoreline from which future accretions would be measured. Proponents have indicated that the intent may be from the time the bottom became public. This early colonial date would be consistent with a 1991 state Department of Environmental Protection rule establishing a historic high tide line, defined as a recreation of the high tide line before settlement in the area. This historic line is meant to establish a line beyond which adjacent landowners must prove that their land has accreted, not artificially filled. If upheld, this would reverse the common law presumption that accretion, not artificial filling has occurred. Thereby, a great deal of long-ago accreted land might be judged public.

Many would argue that more of the shoreline should be public and that the public should have ready access to the beaches. I would agree. It seems that in hindsight, the Massachusetts Bay Colony, unlike other colonies, made a mistake granting landowners title to mean low water versus mean high water. However, no matter how desirable as public policy, the law does not and should not allow the legislature to expropriate the rights of private property owners without just compensation.

If somehow, these barrier beaches in front of Great Ponds were to become public land, how would the public get there? Would this require eminent domain for public roads and parking lots? Roads and parking lots might well cost more than a thin stretch of unbuildable beach and dunes, with no habitable private land behind. Who would pay for this? Who would pay for all the litigation that is certain to follow any taking of what is and always has been regarded private property?

We are fortunate on the Vineyard to have a better alternative, the Martha’s Vineyard Land Bank and other land trusts. This is a completely legitimate way to provide people access to special places on our Island. People on the waterfront who buy and sell land contribute to the ability of the public to rightly enjoy our Island.

If acting through our elected officials, we determine that there should be more public waterfront and better public access to beaches, land should be purchased, not expropriated by the legislature.

The government cannot and should not be able to trample on rights of individual shoreline landowners, any more than the government can take land for roads or schools without compensation.

If House Bill 254 were, as claimed, a simple codification of settled law, there would be no need for the legislation. In fact, the settled law is just the opposite; land that accretes belongs to the adjacent owners and land that erodes is lost to become new state water bottom.

Chuck Parrish lives in Vineyard Haven. He previously worked for 10 years in state and federal natural resources agencies, where he often dealt with land and water rights issues, including riparian and littoral rights.

Max Lifton