Living history: Court ruling on whether some Hingham residents can use a beach hinges on colonial ordinance

The Massachusetts Appeals Court ruled today that some families living on Hingham's Crow Point can continue to use a small beach that had been blocked off in 2004 by some other families closer to the water - decades after the entire neighborhood first began using the beach.

In its ruling, the court said a lower-court judge erred in siding with the blockers by incorrectly interpreting part of the Colonial Ordinance of 1641-1647, which codified what is still Massachusetts law on property rights of seaside residents.

At issue was whether the man who owned the land in the late 1800s could separate ownership of the "tidelands" directly next to the water - the beach - and the "uplands" a bit further inland in his will. The lower-court judge said that could not be done under the Colonial Ordinance, because you couldn't have tidelands without uplands, and that therefore the beach access his will granted to neighbors was invalid.

Au contraire, the appellate judges ruled:

In his reliance on the Colonial Ordinance for the conclusion that a landowner cannot own tidelands without ownership of abutting uplands, the judge appears to have applied a rule of construction that has developed from the Colonial Ordinance: in construing deeds of land adjacent to the sea, "[t]he 'presumption of law is, that title to the flats follows that of the upland on which they lie, and proof of title to the upland established a title to the flats.' ... '[A]n owner may separate his upland from his flats, by alienating the one, without the other. But such a conveyance is to be proved, not presumed, and therefore ordinarily proof of the title in the upland thus bounded carries with it evidence of title in the flats.' " ... However, as the quoted language makes clear, the principle is not absolute, and it is possible to sever tidelands from abutting uplands.

However, the ruling is only a victory for half the 24 families that sued - the court said the easement applied only to the 12 properties specifically covered by "an instrument executed by the trustee under the will of Samuel Downer, dated May 14, 1929."

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