In Massachusetts, the public has the right to boat, fish, and fowl in navigable waters.1) Even in non-navigable waters, the public still retains the right to “passage up and down the stream in boats or other craft, for purposes of business, convenience, or pleasure.”2) Navigable waters are those waters where the tide ebbs and flows and non-navigable waters are those waters above the ebbing and flowing of the tide.3)
State Test of Navigability
Early case law established that navigable waters consist of tide waters where the “tide ebbs and flows.”4) It does not appear that commercial use is required for a finding of navigability. Even though one court stated that navigability required waters to be “navigable to some purpose or useful to trade or agriculture,” it was clarified that this type of language is not meant to be a strict limitation of uses defining navigability.5) On the contrary, the court stated that ”f water is navigable for pleasure boating, it must be regarded as navigable water, though no craft has ever been upon it for the purposes of trade or agriculture.”6) Thus, it appears that recreational use will suffice for a finding of navigability.
Additionally, the Massachusetts Department of Environmental Protection defines “Commonwealth Tidelands” as those tidelands ”[lying] seaward of the historic low water mark or of a line running 100 rods (1650 feet) seaward of the historic high water mark, whichever is farther landward.”7)
Non-navigable waters consist of waters above the ebbing and flowing of the tide.8)
In determining navigability, it appears that actual use is not required. One court stated that the relevant inquiry centered around “the capacity of the water for use in navigation.”9)
Additionally, although the public's right to passage over waters exists generally in non-navigable streams, the Supreme Court of Massachusetts clarified in one case that this right also exists for waters that are “navigable in fact,” meaning, streams capable of being used for useful purposes such as trade and travel in usual and ordinary modes.10)
The tidal ebb and flow navigability test is derived from English common law.11)
The Commonwealth, in trust for the public, owns the streambeds of navigable waterways.12)
Ownership of streamside lands in Massachusetts is unlike that of other states, wherein most other states private ownership ends at the high water mark.13) A “unique feature of Massachusetts land law” provides that “every owner of land bounded on tidal waters . . . enjoys titles to the shore and to the adjacent tidal flats all the way to the low water mark (or one hundred rods, whichever is less).”14) Specifically, the Supreme Court of Massachusetts has held that “these [tidal] flats may be occupied by wharves or other erections, provided the passage to lands above is not thereby too much straitened or obstructed.”15)
In Massachusetts, all privately-owned tidal areas are subject to the public trust doctrine, meaning that the land lying between the mean high water and mean low water marks (i.e., tidal flats) are subject to a “reserved easement” in the public, “whereby all members of the public retain the right to go upon the flats for purposes of fishing, fowling, and navigation.”16)
The First Circuit Court of Appeals held that the Blackhall River is navigable in Knott v. Federal Energy Regulatory Commission.17) The court used the federal test for navigability and stated that “the fact that the Blackstone River required portages [does not] defeat a finding of navigability” nor does the absence of actual commercial traffic; simpler types of commercial navigation is sufficient.18)
Extent of Public Rights in Navigable and Non-Navigable Rivers
In navigable waterways, the public has the right to fish, fowl, and boat in the waters.19)
The public has the right to freely pass over all waters in Massachusetts, even if underlying soil is privately owned.20) This right of passage includes the recreational use of the water. Specifically, the Supreme Court of Massachusetts has held that in non-navigable waters, privately-owned streambeds are owned “subject to an easement or right of passage up and down the stream in boats or other craft, for purposes of business, convenience, or pleasure.”21) Additionally, this right has been specifically granted to waters over private soil, where the waters are navigable-in-fact.22) The Massachusetts Department of Environmental Protection also defines “private tidelands” as “tidelands held by a private person subject to an easement of the public for the purposes of navigation and free fishing and fowling and of passing freely over and through the water.”23)
Although there is no mention of the right to wade or portage in non-navigable waterways, wading and portaging may fall within the scope of the right to boat for pleasure or convenience.
Additionally, the Massachusetts Department of Environmental Protection provides that “public rights of navigation . . . exist in all waterways. Such rights include the right to conduct any activity which entails the movement of a boat, vessel, float, or other watercraft; the right to conduct any activity involving the transport or the loading/unloading of persons or objects to or from any such watercraft; and the natural derivatives thereof.”24)
Although the public retains an easement for passage over non-navigable waters (water not subject to the ebb and flow of the tide), the public does not have the right to access the private upland property to reach these waters.25)Crossing, without permission, “the dry land of another for the purpose of gaining access to water or flats in order to exercise public trust rights . . . constitutes a trespass.”26)
Additionally, the Appeals Court of Massachusetts has held that in waters that are navigable-in-fact, but where the tide does not ebb and flow, the riparian owner has the “exclusive right of fishing and gathering ice, subject to regulation for the [public] by the Legislature.”27)
Case law has held that a streamside owner “may build upon his tidal land so as to exclude the public completely as long as he does not unreasonably interfere with navigation.”28)Moreover, streamside owners may build wharves or other erections down to the mean low water mark so long as navigation is not obstructed.29)It is, however, unclear as to what constitutes an unreasonable interference with navigation.
In addition, state statutory law provides that any water-dependent use project30) which includes fills or structure for private use that interferes with the public's rights in Commonwealth tidelands and great ponds shall provide commensurate compensation with the extent of interference caused.31)
1) , 19) Opinion of the Justices to Senate, 424 N.E.2d 1092, 1099 (Mass. 1981); see 310 Mass. Code Regs. 9.35(3) (2000) (describing “public rights applicable to tidelands and great ponds”).
2) Brosnan v. Gage, 133 N.E. 622, 624 (Mass. 1921).
3) Commonwealth v. Chapin, 22 Mass. 199, 205-06 (Mass. 1827).
4) Id. at 205.
5) Att’y General v. Woods, 108 Mass. 436, 439 (Mass. 1871).
6) Id. at 440.
7) , 23) 310 Mass. Code Regs. 9.02 (2000).
8) Chapin, 22 Mass. at 205-06.
9) Woods, 108 Mass. at 440 (emphasis added).
10) , 22) , 27) Brosnan, 133 N.E. at 624.
11) See Woods, 108 Mass. at 440.
12) See Ingraham v. Wilkinson, 21 Mass. 268, 283-84 (Mass. 1826); see also 310 Mass. Code Regs. 9.02 (2000) (“Commonwealth Tidelands”).
13) Sheftel v. Lebel, 689 N.E.2d 500, 503 (1998).
14) , 18) , 26) Id.
15) Ingraham, 21 Mass. at 284.
16) , 25) Sheftel, 689 N.E.2d at 505.
17) 386 F.3d 368, 373 (1st Cir. 2004).
20) Brosnan, 133 N.E. at 624; Ingraham, 21 Mass. at 284.
21) Ingraham, 21 Mass. at 284.
24) Id. 9.35(2).
28) Opinion of the Justices to Senate, 424 N.E.2d 1092, 1099 (Mass. 1981).
29) See Ingraham, 21 Mass. at 284.
30) The term “project” is defined by the Department of Environmental Protection as “any work, action, conduct, alteration, change of use, or other activity subject to the jurisdiction of the Department under M.G.L. c. 91, . . ., which is the subject of a license or permit application.”
31) 310 Mass. Code Regs. 9.35(4) (2000).