So you have the perfect Massachusetts summer vacation planned.
You have rented a seaside cottage and purchased all the necessary
beach supplies. But before you load up the car with towels, beach
chairs, umbrellas and coolers, stop and think about whether the
beach you intend to visit is privately owned, how you are going to
gain access, even if it isn't private, and where you are going
to sit once you get there.
To fully understand whether a beach is public, a responsible Bay
Stater would need to familiarize herself with such legal terms as
"tideland" and "intertidal area," Public Trust
Doctrine (on which ample authority exists because it dates back to
Roman law) and the ever-exciting Colonial Ordinances of 1641-1647.
For those readers seeking a scholarly article on such topics, STOP
READING NOW. The summer is, after all, a time to have fun. But
finding a beach in Massachusetts at which to do so might be harder
than you thought.
Massachusetts is one of a handful of states that still allow
virtually complete private ownership of the beach. And the people
who own beach land are well aware of these property rights. A quick
Google search of "Jim Belushi," "beach" and
"trespass" underscores this conclusion. So when you
stumble across a gorgeous stretch of Massachusetts beach and wonder
why it's deserted, understand that using the beach might
constitute trespassing on private property.
That said, the rights of landowners are not absolute when it comes
to the beach. They have to share with the public, in narrowly
defined circumstances, the area of the beach between the high-tide
and low-tide marks. This area is often easy to spot because it is
filled with seaweed, dead jellyfish and razor-sharp broken shells.
Our courts call this space the "intertidal area."
In Massachusetts, landowners still own the intertidal area, but
they must allow others access in three circumstances: fishing,
fowling and navigation. As interpreted by our courts, you can
access the intertidal areas--be sure to watch where you step--to
fish, look for shellfish and hunt birds. And although you are free
to "navigate" boats and watercraft in the intertidal zone
(presumably at high tide), be sure to find deeper water before low
tide.
One very large exception to these rules exists, however. Under the
Public Trust Doctrine, the landowners do not actually own the
seawater itself, even the water found in the intertidal zone. You
can swim--or do whatever else you want--in this water, so long as
you don't inadvertently touch the seafloor in the intertidal
zone. Nor can you enter or exit the water via the beach or
intertidal zones. Such contacts would, of course, constitute
impermissible trespasses.
Despite these rules, Massachusetts offers numerous public-access
beaches where you may find a tiny patch of sand to enjoy among the
sun-worshiping masses.
Or you could just go to the beach in Rhode Island.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.