Chapter 3 points out that over 1500 years ago the Justinian Code and early Roman law held that intertidal lands, by their very nature, were among a group of “things” incapable of private ownership. These “things” included “air, running water, the sea, and consequently the shores of the seas.” The Code and early Roman law also noted that wild animals, birds, fishes that roam freely, “…on the earth, in the sea, or in the air… belong to no one, unless/until there is a capture.” Today we might include outer space and, water in some stage of movement through the hydrologic cycle, in the same category of “things” incapable of private ownership. In sum, the Justinian Code made clear that these “things… cannot be said to belong to anyone as private property.”
After Magna Charta these views were assimilated into English common law, i.e., land seaward of the high water mark was held by the King and Parliament in “public trust for all subjects.” These views with respect to the ownership of intertidal lands were part and parcel of English common law brought to colonial settlements in North America. Early and more recent Massachusetts case law recognized this legal status with respect to the ownership of intertidal land; published cases noted: “… there was no such thing as [private] property in tide waters. Tide waters were res omnium, that is, they were for the common use.”
How these historic views with respect to the ownership and use of intertidal lands were abandoned in Massachusetts (and subsequently in Maine) in favor of judicial holdings said to emanate from language in a 1647 Massachusetts Bay Colony ordinance (an ordinance subsequently repealed), is inexplicable. As the colonies became a new nation the case law in both states narrowed public uses on intertidal lands and granted title to such lands in the two states to upland owners purportedly to facilitate marine commerce. These views were not followed by other of the original colonies (now states) or by any other state subsequently admitted into the Union. The large majority of coastal states (historically and today) adhere to English common law with respect to ownership and use of intertidal lands. The position of Massachusetts and Maine stands alone. It is arguably founded on judicial error. The relinquishing of public ownership of all intertidal land in an entire state to facilitate marine commerce was not needed (or wanted) during the colonial era in either state; it was not needed during the 1700’s and 1800’s as marine commerce grew; it is not needed today.