Over the years, Massachusetts courts have ruled that the scope of activity on private tidal lands, which fall under reserved public rights of fishing, poultry and shipping, is broad and includes all of their “natural derivatives.” For example: [35] See, for example, Joseph L. Sax, The Public Trust Doctrine in Natural Resource Law: Effective Judicial Intervention, 68 Mich. L. Rev. 471, 473 (1970) (describes an extended doctrine of public trust) and James L. Huffman, Speaking of Inconvenient TruthsA History of the Public Trust Doctrine, 18 Duke Envl. L. & Poly F. 1, 47, 3769 (2007) (Summary of Legal Commentary Advocating a Broader Public Trust Doctrine and Discussing the Views of Courts that have adopted or referred to this expanded doctrine while basing their decisions on other grounds). [47] Some courts have defined the ordinary high water mark as the middle high water mark, without giving or recognizing any reason why the middle high water mark is not a waterline along the sea coast. For example, O`Neill v. State Hwy.
Dept., 50 N.J. 307, 323324 (1967); Purdie v Attorney General, 143 N.H. 661, 664667 (1999); and Staat v. Fain, 259 p.E. 2d 606 (S.C. 1979). Some adopt the rule because (apart from bank erosion) the average flood line can be determined more accurately than visual observation of a waterline. State v. Ibbison, 448 A.2d 728, 732 (R.I. 1982) (publicly available case) The average flood line represents the point that can be scientifically determined with the greatest certainty. Ibbison at 732.
Another common reason was that litigants had asked the court to choose between the medium flood line and either a watermark or vegetation mark created by the spring freshet, or the annual storm surge, which generally defines the vegetation line of the dunes; Neither litigant proposed the ordinary wave line as the ordinary high water mark. For example, Purdie at 664665 and Carolina Beach Fishing Pier, Inc. v. City Carolina Beach, 177 SE 2d 513, 516 (N.C. 1970) (revenue). Finally, the courts have sometimes invoked older calm water cases where the ordinary high water mark and the middle high water mark were identical, concluding that the law had already decided on the use of the middle high water mark. Ibbison at 73031. The scientific literature on these cases has also focused on increasing the refinement of measuring average high tide, but not on the higher actual water levels caused by the waves. For example, Maloney & Ausness, op. cit.
Cit. note 44, p. 206, and Cole, op. cit. cit., note 44, 165167. The Florida legislature stepped in and took local right to pass customary laws, except after a complicated legal process initiated by a few local governments. Critics argue that the law has made it harder for municipalities to establish lateral public access to beaches and has done little to resolve ongoing disputes. Some states do not use the middle high water mark or the medium flood line. In states where original land grants were granted during French, Spanish or Mexican rule, the limit of public trust is often further inland, as under civil law more of the beach was public property than under English customary law. [51] Hawaii and Washington have taken into account particularly large waves along the Pacific Ocean by defining the common high-water mark as the vegetation line of the dunes or the marking of floating debris left by the flood. [52] In areas where mangroves dominate, it can be particularly difficult to determine the ordinary high water mark, and surveyors sometimes meander the only practical boundary.
[53] In five states, however, the King of England`s original land grants provided land down to low water, so private landowners owned the wet beach and low swamp, as well as the dry beach and high swamp. [54] (See Figure 3.) [40] The most common terms in the scientific literature are flood line and wet/dry line. See for example Boak & Turner in 690697 (noted that the most commonly used coastal reference was the flood line, sometimes referred to as the wet/dry line). But the flood line could easily be confused with the high average water line or the flood line based on measured heights. See footnote 36 and accompanying text. The term wet/dry line has been criticized as inaccurate. Id., p. 697. Although the colonial ordinance changed ownership of most tidal flats from public to private, it did not transfer all property rights originally held in trust by the state. For one, the regulation did not waive any rights to the water itself (unlike the lands below). In addition, the Act expressly reserved to the public the right to continue to use private tidal land for three purposes: fishing, poultry farming and shipping.
In this context, the question that may arise is that of identifying low water levels. Since the legal status of marine features can be changed in borderline cases depending on the date of the tide, the choice of the tide date is of paramount importance. However, section 11 of the TSC and section 13 of the CBCA did not specify a tide date. In United States v. Alaska in 1997, the Special Master`s report emphasized that the term “flood” was understood to mean “medium flood” according to the established practice of the United States. The U.S. Supreme Court seems to support this view. However, if the average tide is an established standard in the United States, it does not mean that it is an internationally accepted standard. Despite attempts at international standardization of the tide date, there is currently no uniform practice among States in this area. The situation is more complicated because states have used more than one date along their coasts.
So it seems that there are no usual rules for using the tide date. It is also inconceivable that there are “general principles of law recognized by civilized nations” on this issue. For example, a dispute may arise if the States concerned use different tidal data and the legal status of a marine feature is different depending on the date. In this context, three cases deserve special mention. The term dry beach is a misnomer. [39] On beaches with large waves, such as the Atlantic and Pacific Oceans, waves regularly flow far inland from the average high tide line (see photos 10 to 13). A person standing one step inland from the medium high tide line to medium high tide would regularly experience waves that bring water levels between the tibia and the drop.