Memorial Day is the start of the unofficial war at the shore between private property owners and Rhode Island beachgoers.
Those who own private property running to the ocean know that in summer months, members of the public will often trespass on their property, treating it as a public beach.
I recently talked with one such property owner, who tried to address the perennial problem by engaging a surveyor to determine the precise boundary of his property. He then had boundary markers sunk 6 feet into the ground, denoting the legal boundary between his private property and the public beach.
Within one day, the boundary markers had been ripped out and cast on the beach.
When that property owner approached trespassers who had encamped on his property and politely advised them they were on his property, and could they please move to the public beach, he was threatened by a trespasser wielding a baseball bat.
Yet the law in Rhode Island is crystal clear. The public has access below mean high tide, and above that line, it is private property.
In fact, for more than two centuries, the Rhode Island Supreme Court has strived to maintain a fair balance between private property rights and public rights to the shore. So meticulous and consistent have they been in this regard over the centuries, that some years back I wrote an article detailing this even-handed treatment, which was published in the William and Mary Law School’s Environmental Law Journal.
And the cases continue. Just two years ago, Superior Court Judge Brian Stern decided an important waterfront property rights case, determining that a claimed extensive public beach easement impacting private properties was invalid, despite claims going back to 1909.
There will no doubt be more cases, as waterfront property owners have numerous stories to tell of what is literally the invasion of their private property each beach season.
And while the courts are the ultimate arbitrator of property rights on cases within their jurisdiction, it takes years to get through the court process and it is not inexpensive.
It is the police who are the front lines in enforcing these private property rights, and that is not an easy job. In fact, media reports indicate that this spring, Charlestown police and town officials met with the state’s Coastal Resources Management Council staff to discuss the very issue of boundary lines at the shore, and the difficulty of enforcing trespassing ordinances without clear boundary markers.
Delineating the public/private boundary requires a surveyor, because in balancing private and public property rights at the shore, the Rhode Island Supreme Court wisely determined that it would be unfair to the public to set the boundary line at the lowest tide, as this would rob the public of access to dry sand. It also concluded that it would be unfair to set the boundary line at the highest tide, or highest throw of seaweed on the sand. It reasoned that while that line would be readily visible, it would be unfair to the private property owners and would encroach on their private property rights.
So the court established the boundary line between these two extremes, being the mean high tide line, measured during an 18.6 year Metonic Cycle (the cycle when the new moon starts and ends on the same day). The benefit they saw to this was that it was an average line over a number of years, so it did not take unduly from the public or from the property owner, and furthermore, it could be measured with mathematical certainty. This is why a surveyor is necessary to establish that line.
So when beachgoers are above the highest throw of seaweed on the beach, they should be aware they may be trespassing on private property.
And with boundary markers in place, the police can enforce trespassing ordinances, and restore the balance between public and private rights that our courts have worked so hard to maintain.
John M. Boehnert is a Rhode Island lawyer and author. His most recent book, “Buying, Owning and Selling Rhode Island Waterfront and Water View Property,” was published this year.