A Usenet persona calling itself Melissa wrote:
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Hi Wilf,
On 11 Mar 2005 09:01:10 -0800, you wrote:
Is the concept of "public property up to the 'high water mark'",
which is true in BC, also prevalent in the USA?
I'm not a legal expert in this area, so please take my comments as
only the casual observations of an oceanfront dweller who has some of
her own ideas, and also encounters reports of legal disputes over
ownership versus public access rights now and again.
Yes, the high water mark seems to be a *general* guideline in some
states, but it seems to be a state issue rather than a federal issue
in most cases, and so different states - and their courts - may draw
the lines differently than others.
Except for "National Park" and other such federally "owned/controlled"
land/water rights (military properties, wildlife preserves, etc.), it
seems to be mostly a state issue, governed by state courts.
Oceanfront private property owners will, often enough, challenge
certain boundary and access issues in the state courts (most often in
an attempt to limit public access/usage to as much of the "beach" in
front of their property as possible).
Incorrect. The determination of what is a navigable waterway is a federal
one, and once a waterway has been adjudicated as navigable under the
requisite federal tests, the bed of that waterway belongs to the state, held
in trust for the use and enjoyment of the people, and the state may not
alienate that title if it thereby prevents navigation by the public.
Some states did, however, reserve specific rights in navigable waters under
their constitutions that provide broader navigability right to the public.
However, a state may not *diminish* the federally-protected right of
navigation on navigable waters.
Again, while it does seem that most states do use the "high water
mark" as a general guideline, here in WA state, the line seems to be
drawn at the spot where "dune" and "beach" meet. If the "dune"
erodes, so does the "private property", regardless of the average
high water mark.
This is mostly correct. The doctrines of reliction and accretion determine
title to such lands, and they apply on navigable rivers (and indeed non
navigable streams for the purposes of who holds title to the upland) as well
as on the oceanfront.
Of course, in an area like where I live, even though the "open sand"
beach area can be very wide for long stretches, and the usual "high
water mark" does not, most of the year, reach all the way to the edge
of the "dune" area, winter storms can easily push waves all the way
up to/into the very edge of the dunes (area where vegetation, like
dune grasses and trees grow before giving way to open sandy beach);
so I suppose this may be considered the "high water mark".
The ordinary high water mark can be easily determined through a survey and a
review of tide tables. Extraordinary high water, such as storm surge, does
not move the line.
As I said, I'm no legal expert in any of this, and I currently only
rent a bit of oceanfront property rather than "own" it, so I haven't
paid quite as much attention to all the legal minutiae as I might
have had I "owned" this property. Even so, I still have my own
peculiar views on the "spiritual" aspects of land ownership in
general, and things like "beach/water access" specifically. River
access is also an issue *I* consider to be more "spiritual" than
legal; philosophically speaking anyway. These
"spiritual/philosophical" feelings of mine can push certain opinions
of mine in various directions, even though I appreciate the idea that
beach/water access should be "public". For instance, I have a
"spiritual/philosophical" problem with the idea of driving vehicles
on the beaches for anything other than emergency purposes, yet in my
state, much of the "wide open beach" area along certain stretches is
officially designated as part of the "state highway" system,
inefficient as that may be as any sort of a practical
"transportation" issue. As I see it, it's just a permission for
people to drive on the beaches, which is, in my view, blasphemous at
best.
With regards to river access, it seems that here, even if someone owns
property on both sides of a stretch of river, the water itself,
including up to the high water mark on the banks, is designated as
"public access". So, if a river runs through someone's "property",
the public still has the right to be on the water itself. I see this
as being perfectly reasonable, but Scott seems to have a somewhat
different opinion about this sort of public access issue.
This is simply not within the ambit of our law or our history. Even back in
pre-US England, from which we derived our laws of river access, the law has
always distinguished between navigable and non-navigable waterways, and the
public rights to use a waterway depend on navigability.
It is simply a legal fact that in Colorado, there is not legal right to
float down a non-navigable river or stream. And so far, there is only one
federally-adjudicated navigable waterway in Colorado: The arm of the Navajo
Reservoir that extends into Colorado from New Mexico.
If I keep googling, I'm sure I'll find endless examples in the various
states, but here's something that popped up after just a quick little
google (this one is specifically in North Carolina):
http://www.nccoastalmanagement.net/Facts/publicuse.htm
I've seen even more contentious court battles played out in southern
California (specifically in the L.A. area), where many very wealthy
people own "beachfront" properties, and they will often be in court
trying to restrict access to as much of the beach as possible in
front of their homes.
Here's something I just found with regards to California beach access
rights:
http://www.stoel.com/resources/artic...e/real_01.shtm
Public/private access to various bits of this earth is a never ending
discussion, especially if we're willing to discuss these issues in
spiritual/philosophical terms and not just "legal" terms.
Sorry, but whatever you may feel spiritually, the rights of property owners
to exclude others is strictly a legal issue.
--
Regards,
Scott Weiser
"I love the Internet, I no longer have to depend on
friends, family and co-workers, I can annoy people WORLDWIDE!" TM
© 2005 Scott Weiser