In a dispute among people who live on what was once a large parcel along Cape Cod Bay, the Massachusetts Appeals Court ruled today that the ones who don't live right on the beach can use the beach for the sorts of things people did in the 1600s - namely fishing and bird hunting - but that volleyball and suntanning are right out.
In one of those cases that could only happen in Massachusetts (or maybe Maine, which used to be part of the Bay State), the court cited the Colonial Ordinance of 1641-1647 in limiting what activities the owners of 69 parcels away from the water on a particular Dennis beach - and their guests - can do on a beach fronted by 34 other property owners. All the parcels were carved out of what was once a single 217-acre parcel starting in 1903.
The non-shore residents had cited an earlier court decision that let them use a particular path to get down to the beach as proof they had a right to fully enjoy the beach in 21st-century fashion.
But citing the 377-year-old ordinance, which to this day sets down shore rights in Massachusetts, the court said the path only gave them access to the beach to do what the ordinance allowed Puritan colonists to do: "Fishing, fowling and navigation" (the Puritans were not noted for their devotion to frolicking).
And this is because the ordinance grants Massachusetts shoreline property owners ownership of the beach down to the low-tide mark, which in turn means they can bar everybody from the beach - except for people who are fishing, hunting birds or floating above it in a boat during high tide (the navigation part).
Whether the ordinance still covered the beach came up in 2015 after the non-shore owners won a case against four shore owners who sought to bar them from a short path from the nearest road down to the beach. In that case, the Supreme Judicial Court said the original owners of the once single parcel had granted all owners access to it.
But, the appeals court said, while most of the original deeds for the inland parcels in question mentioned the pathway, they said nothing about beach access specifically - while the shoreline deeds and certificates of title noted the parcels were bounded on one side by "the waters of Cape Cod Bay" or words to that effect.
And that, the court said, ties beach access to the Colonial Ordinance - especially since:
[M]ost of these deeds or certificates of title note that the property is being held subject to the public rights reserved by the Colonial Ordinance. Such references would make no sense if the land being conveyed were bounded by the mean high tide mark, with the fee to the intertidal area reserved to others.
But what about the 2015 ruling about the pathway, the one that said the developers meant to give inland owners the right to use it? Doesn't access to that imply that the original owners of the tract meant to give them full access to the beach?
It makes no sense, they argue, for the original developers to have created a system of access ways for the benefit of the inland owners unless such owners thereby acquired significantly greater rights than the public at large. They maintain that because members of the general public can access a public beach down the road, and additionally have the right to undertake fishing, fowling, and navigation in privately held intertidal areas, then it must follow that the original developers intended the inland owners to be able to spread out onto the entire beach area and use it for all normal beach purposes.
Nope, the court ruled. Since their deeds don't mention beach access specifically, all the path gives them is an easier way to get onto the beach for "fishing, fowling and navigation" - and they should count themselves lucky at that, since members of the general public can't use the path and instead would have to hike from the nearest public beach to get in some fishing or seagull grabbing.