Accessing the Maine Coast

moody beach case study

In March 1989, the Maine Supreme Judicial Court ruled on a conflict between public versus private rights to the shore in Maine in Bell v. Town of Wells, also known as the Moody Beach case. The case has become a symbol of the conflict between public versus private rights to the shore in Maine, and is cited as authority for the proposition that the public has only very limited rights in the intertidal zone (the area between high and low tide). Since the Moody Beach decision, access to Maine’s coastline has continued to be a contentious issue. Changing demographics and related coastal development have increased concerns that those who do not own coastal property will lose more access to the coast. 

Moody Beach is a sandy beach, about a mile long, in the Town of Wells. About 100 private homes adjoin the beach. In 1984, 28 homeowners filed a “quiet title action” in Superior Court against the Town of Wells, the Maine Bureau of Public Lands, and various individuals. The owners were concerned about the public’s increasing use of the beach, and perceived the town as unwilling to treat members of the public who were abusing their beach “privileges” as trespassers. The owners asked the court to prohibit the public from walking, swimming, sunbathing, or using the beach, including both the dry sand and intertidal zone, in front of their homes for general recreational purposes.

To resolve the dispute, the Law Court had to interpret a centuries-old Colonial Ordinance (applicable only in Maine and Massachusetts and designed in part to encourage the construction of wharves in these English Colonies) that extended private property rights to the low water mark. But the Colonial Ordinance reserved the public’s right to fish, fowl, and navigate over this private space.

In an initial ruling in 1986, the Supreme Judicial Court held that the Colonial Ordinance enacted by the Massachusetts Bay Colonies between 1641 and 1647 modified Maine’s common law (recalling that Maine was a district of Massachusetts until 1820) by extending private ownership of the beach to the low-water mark, extinguishing all public rights in privately owned tidelands, except for fishing, fowling, and navigation. That ruling sent the case back to trial in Superior Court on the issue of whether the extensive public use of Moody Beach had created a public recreational easement by prescription, implied dedication, or local custom.

At about the same time, the Maine Legislature enacted The Public Trust in Intertidal Land Act. The Act declared that “the intertidal lands of the State are impressed with a public trust,” and therefore the public has the “right to use intertidal land for recreation.” As a result, the Superior Court had to address the legality of the Legislature’s action. Seven Private property owners argued the legislative act would effectively take some of their legal property interests away without compensation and that the statute was therefore unconstitutional. After a four-week trial in 1987, the Superior Court decided that the public had acquired no easement over Moody Beach by custom or any other common law doctrine, and that the 1986 Public Trust in Intertidal Land Act, guaranteeing public recreational use of intertidal lands, was unconstitutional. This decision was appealed to the Supreme Judicial Court.

In 1989, the Supreme Judicial Court upheld the lower court ruling and found that the only public interest recognized in the intertidal areas were those articulated in the Colonial Ordinance—fishing, fowling, and navigation—and that the legislature’s attempt to expand those public rights “constitutes a taking of private property for a public use. Since the Act provides no compensation for the landowners whose property is burdened by the general recreational easement taken for public use, it violates the prohibition contained in both our State and Federal Constitutions against the taking of private property for public use without just compensation.”

In the Moody Beach decision, the Supreme Judicial Court affirmed that in Maine, owners of beachfront property or property adjoining tidelands (also called littoral or riparian owners) have private property rights to the low-water mark or low tide area, subject only to a public easement for fishing, fowling, and navigation. Thus littoral or riparian owners may bring an action for trespass against members of the public who enter upon private tidelands without
permission except for the purposes of fishing, fowling, and navigation. The Moody Beach ruling noted that the public still has the right, by virtue of an easement created by the Colonial Ordinance, to use privately-owned intertidal land, but only if engaged in fishing, fowling, or navigation. The land to which this easement applies is the area between mean high water and mean low water (or to 1,650 feet seaward from the high water, if the mean low watermark is even farther seaward). If the shoreline is beach, this is the wet sand area. If the shoreline is marsh, mudflat, or ledge, the intertidal area will commonly consist of gravel beaches or mud flats. However, the decision in the Moody Beach case was close (a 4-3 ruling regarding the issue of public rights in the intertidal area), tempting those who argue that the public’s rights ought to be interpreted more broadly.