Massachusetts law governing barrier beaches and other accretions which fall on Great Ponds, such as the barrier beaches covered by H. 753, is clear that such beaches belong to the owners of the littoral property, i.e., the upland bordering the shore of the Great Pond. The Massachusetts Supreme Judicial Court has held this to be the case even regardless of who owns the subsurface land of the Great Pond. LoRusso v. Acapesket Improvement Assn., Inc., 408 Mass. 772 (1990).

LoRusso involved facts similar to those contemplated by H. 753. The case involved “a movable barrier beach, which separates Green Pond in Falmouth […which is greater than 10 acres in size and thus a Great Pond] from the open ocean waters of Vineyard Sound.” Id. at 777-78. The defendant claimed ownership of the newly accreted land because it had owned the eroded sandbar as registered land and should therefore continue to own it even after it had moved entirely off its original footprint. Id. at 782.

The court rejected this argument, applying the well-settled general rule that accreted land, even where it has been deposited on what had been part of a Great Pond, belongs to the littoral owner. Id. at 782. Indeed, the Commonwealth was a party to LoRusso, 408 Mass. at 772 n.2, and not only did it not assert any claims to the beach in dispute, it in fact argued in favor of ownership by the landowner adjacent to whose land the beach had accreted. Id. at 773.[1]

This rule is identical to that which applies to non-barrier beach accretions that fall onto the bed of a Great Pond. E.g., Johnson v. Com., 2008WL1723358 at *7-8 (Mass. Land Ct. April 14, 2008) (Long, J.) (holding that the littoral owner, not the Commonwealth, owned the non-barrier beach accretions on the Great Pond in question and noting that the Commonwealth itself had agreed to the accretions becoming part of the littoral owner’s registered land.)

This rule is consistent with other Massachusetts cases that provide that beaches, which move and accrete onto other subsurface lands owned by the Commonwealth, nevertheless belong to the adjacent littoral landowner. E.g., Michaelson v. Silver Beach Improvement Assn., Inc., 342 Mass. 251, 253, 258-59 (1961) (holding that lands lying below the low water mark of the ocean “are held by the state, both as owner of the fee and as the repository of sovereign power,” but that “[a]ccretions onto such subsurface land below the low water mark belong to the contiguous littoral landowner regardless of the fact that such “land” had been the property of the Commonwealth”); see also Burke v. Com., 283 Mass. 63, 65 (1933) (same); Allen v. Wood, 256 Mass. 343, 349 (1926) (same); A. Eno, W. Hovey & M. Pill, 28 Mass.Prac.Ser. sec. 26.5 (same).

Similarly, subsurface land below the channel of a navigable river belongs to the public, Ingraham v. Wilkinson, 21 Mass. (4 Pick.) 268, 283-84 (1826); Adams v. Frothingham, 3 Mass. 352, 1807 WL 787 at *5 (1807), but where land accretes on this subsurface land adjacent to a riparian landowner’s parcel, that new land belongs to that landowner. Adams v. Frothingham, 3 Mass. 352, 1807 WL 787 at *7 (1807).

In short, it is beyond question, under well-established Massachusetts law, that barrier beaches that accrete on top of Great Ponds belong not to the Commonwealth, but to the littoral landowners.

Even were the law of accretions on Great Ponds otherwise, an untold number of the barrier beaches in front of Great Ponds along the majority of Massachusetts’ 1500 miles of coastline[2]  – essentially all of the coastline south of Boston, that in Plymouth and Bristol Counties, the Cape and the Islands – are in private hands. This is so because the Colonial Ordinance of 1641-47, which established that Great Ponds belong to the Commonwealth, did not come to apply to the Great Ponds in these areas until 1692, after the lands surrounding an untold number of these ponds had passed into private ownership.

Prior to the enactment of the Colonial Ordinance in the 1640s, the common law provided that, where the littoral land bordering on a Great Pond had been conveyed to private individuals, those individuals owned the waters of, and land under, those Great Ponds. E.g., Inhabitants of Lynnfield v. Inhabitants of Peabody, 219 Mass. 322, 329 (1914).  The Massachusetts Bay Colony’s enactment of the Colonial Ordinance changed the common law in this regard, e.g., Watuppa Reservoir Co. v. City of Fall River II, 154 Mass. 305, 308-09 (1891) (“Watuppa Reservoir II”), by making the colony, not the littoral landholders, the owner of the waters and bed. E.g., Watuppa Reservoir Co. v City of Fall River I, 147 Mass. 548, 555-57 (1888).

However, in the 1640s, Plymouth and Bristol Counties, the Cape and the Islands were not yet part of the Massachusetts Bay Colony and thus the Colonial Ordinance did not govern them. Indeed, it did not so govern them until the Charter of 1692 merge these lands part and the Massachusetts Bay Colony into a new entity, the Province of Massachusetts.  E.g., A. Bushnell ed., Commonwealth History of Massachusetts, vol. 2 (hereinafter, “Bushnell”), at 7, 11 (1928); Watuppa I, 147 Mass. at 556; Watuppa Reservoir II, 154 Mass. at 308; see also Litchfield v. Inhabitants of Scituate, 136 Mass. 39, 46-47 (1883).

By 1692, the land around many Great Ponds had already passed into private ownership. That being the case, those private landowners owned the Great Ponds, not the Commonwealth, and their rights were unaffected by the changes to the Massachusetts polity that transpired that year. As a result, even were the law to provide that the owner of the Great Pond, rather than the littoral owner, owned a barrier beach that fell on a Great Pond, the successors to those private landowners’ interests on the coastline south of Boston would still today own the barrier beaches that migrate across Great Ponds.

Because any barrier beach anywhere in the Commonwealth that now rests on the former bed of a Great Pond belongs to the landowner(s) against whose land it has accreted, H. 804, if passed, would expose the Commonwealth to potentially enormous damages. The landowners of every one of these beaches along the Commonwealth’s 1,500 miles of coastline would have to be adequately compensated for the taking of their valuable beach properties.

In April 2011 the Massachusetts Land Court concluded that the plaintiff suing to acquire a barrier beach had no prescriptive interest in the Beach.Hamilton v. Myerow, Docket No. 04 MISC. 303223(CWT), 2011 WL 1565924 (Mass. Land Ct. April 11, 2011) (Dukes Co.). (The Court had previously ruled that, because the plaintiff’s beach had been completely eroded and submerged in the Atlantic Ocean, his interest has therefore been liquidated. Hamilton v. Myerow, Docket No. 04 MISC. 303223(CWT), 2009 WL 885952 (Mass. Land Ct. April 1, 2009) (Dukes Co.)). The case is now on appeal.

H. 753 is designed to reverse the Land Court’s decision by giving the plaintiff, but almost no one else as a practical matter, the right to use the section of the beach most important to him: that at the foot of Oyster Pond on the upper waters of which his property fronts.