Chapter 9 begins by pointing out that nearly 200 years elapsed between passage of the 1647 Colonial Ordinance (said to have ceded all intertidal lands in Massachusetts to upland owners to meet “wharfing out” needs) and the seminal cases, Storer v. Freeman and Commonwealth v. Alger, confirming that view. There is no language in the Ordinance itself indicating that these marine commerce needs were the predicate for its enactment. And with the Ordinance’s repeal shortly after enactment, these cases, not a subsequent legislative enactment, are the foundation upon which Massachusetts and now Maine’s intertidal land law rests. Case law suggests this is untenable. Moreover, internal inconsistencies exist in both cases, and Supreme Court cases suggest that all intertidal land in a state cannot be alienated. In sum, Storer and Alger are almost certainly incorrectly decided. The preface to this volume and chapter 9 point out that these cases are more correctly seen as “… a post hoc interpretation of the Ordinance—an interpretation that met the commercial needs of powerful Boston Shipping interests in the 1800’s (and today) but one not needed and not intended by the drafters of the Colonial Ordinance.”
Historical research (outlined in chapter 9) bears out this assessment. Settlements and resettlements in Maine authorized by successive Massachusetts’ legislative enactments spanning 160 years (the late 1600’s through the 1700’s) in Wells, Kennebunkport, and North Yarmouth all indicate that founding grants consistently ran from mean high, landward. Intertidal lands (with a handful of exceptions, presumably for “wharfing out” purposes) were retained in public ownership; they were seen as essential for safety, lateral passage, and other public uses. Unless alienated by the respective towns (or now by the State) they remain in public ownership today. These Massachusetts legislative bodies/legislators clearly did not believe that the Colonial Ordinance limited their powers and/or had alienated all intertidal land within their jurisdictional authority. The reasoning underlying Storer and Alger never entered their minds.
A final point worth noting: The historical research outlined in chapter 9 fully supports the recent (2018) York County Superior Court holding sustaining (with one exception) Kennebunkport’s claim of ownership of intertidal lands adjacent to 22 individual properties along Goose Rocks beach that are seaward of the mean high tide line (or the natural seawall). Whether the case will be appealed, and if so, whether the lower court holding will be affirmed, and if so, whether the lower court holding will be extended to those Goose Rocks upland owners not party to that proceeding, and to other intertidal lands in the state remains to be seen.