Title Tips - June 2015
TITLE TIPS BY JOE VITULLO - JUNE 2015
PUBLIC TRUST DOCTRINE - The public trust doctrine concerns tidal filled lands which were previously submerged in downtown Providence and Newport, originated this way. The doctrine was inherited from England, but is dramatically different from state to state and outside law is inapplicable. The mean high water mark is not the line of seaweed one sees on the beach. It is a topographical elevation along the coast, arrived at by a surveyor, based upon tidal data gathered over an 18.6 year lunar cycle (a variant of the Metonic Cycle). The 18.6 year time period allows enough time for the earth and moon to occupy every possible position in relation to each other, while traversing their respective orbits. The tidal data is collected at a tidal gauge in Newport and at a local tidal gauge installed near the point to be determined. The method was recognized in the U.S. Supreme Court case of Borax Consolidated, Ltd. v. City of Los Angeles 296 US 10 (1935).
Rhode Island Courts have always held that the state owns all land below the mean high tide mark for the benefit of the citizens of the state for the purposes of fishery, commerce and navigation. For those who enjoy the soft-shelled clam and the quahog, an important case is Allen v. Allen 32 A. 166 (RI 1895), which holds that any citizen may take clams below the mean high water mark, without committing a trespass. A legal battle concerning Rhode Island's tidal filled lands has ebbed and flowed for several decades, like the tides themselves. Curiously, the public trust doctrine does not apply to marshlands, even though they are also subject to the tides. Providence Steam Engine Co. v. Providence Stonington S.S. Co., 12 R.I. 348, 357 (1879).
It was recognized in Colonial times that the original undeveloped shorelines of the colony were in no way conducive to off-loading gods and promoting trade and commerce. For this reason the Colonial General Assembly, originally located in Newport, passed an Act on May 28, 1707 stating that:
"each town shall have granted to them full power and authority to settle such coves, creeks, rivers, waters, banks bordering their respective townships....by building houses, and warehouses, wharfs, laying out lots, etc...as the body of freeholders and freemen of each town shall see cause for..." 4 Rhode Island Colonial Records 23,24.
Eventually, in 1870, the state passed the Harbor Line Act establishing lines beyond which fill, wharves and other structures would obstruct navigation and fishery. By establishing the harbor lines, the state acquiesced to upland owners filling below the mean high water mark out to the harbor line. The Courts have always held that the state had the right to convey such land to private individuals. City of Providence v. Comstock, 65 a. 307, 308 (1906); New York N.H. & H.R. Co. v. Horgan 56 A. 179, 180-181 (1903). The difficulty was that where the littoral owner filled in tidal ands, out to the harbor line, there was no formal conveyance of any title. For this reason, there should always be a Special Exception for any tidal filled lands included in Schedule B of all title policies for shoreline properties. The case that ignited the most recent legal battle was Hall v. Nascimento , 594 A 2d 874 (R.I. 1991). In deciding a controversy involving the filling of tidal lands, without a harbor line, the RI Supreme Court inadvertently called in question the title to all Rhode Island's tidal filled land, ruling that the state held title to all filled tidal lands under the public trust doctrine. Environmental proponents of this cause immediately introduced legislation in the General Assembly whereby littoral landowners of filled land would have been required to lease their lands back by paying a one-time fee equal to a year's taxes. Fortunately, the legislation was defeated and astute legal minds manufactured a subsequent case bringing the issue again before the Supreme Court.
In Chamber of Commerce v. State, 657 A.2d 1038 (R.I. 1995) the Court limited the application of Hall v. Nascimento to the facts of that case. The Court, in ruling on the title to three parcels of filled tidal land in downtown Providence, adopted a two-part test to determine the ownership of tidal filled lands. They ruled that a littoral owner who fills along the shoreline, whether to harbor line or otherwise, with the acquiescence or express or implied approval of the state, and improves upon the land in justifiable reliance upon the approval, would be able to establish title to that land that is free and clear. The Court actually suggested that the owner deed the land to himself, herself or itself, becoming the owner in fee simple absolute. The Court did recognize that the state can impose restrictions on the filling in of the shoreline, however, usually through the CRMC (Coastal Resources Management Council, established under R.I.G.L. 46-23-1 et seq.) The Court likened the CRMC to a zoning or subdivision board, which may regulate the use of one's coastal land beneath tidal water, but may not affect the title to the land.
In a subsequent case, Providence Worcester Railroad v. Pine , 729 A.2d 202 (R.I. 1999), the plaintiff took the Supreme Court's suggestion and delivered to itself a Bargain and Sale deed to tidal land it had been filling for decades with state approval. It then sought a Declaratory Judgment in Superior Court affirming its title in fee simple absolute. The Court finally ruled that once the railroad filled in the land below the mean high water mark, with state approval, it established title thereto, free and clear of the public trust. However, this was not the final development in the controversy. The environmental proponents of the public trust doctrine fired the last gun. They managed to get the General Assembly in July, 2000 to enact the following statute:
R.I.G.L. 46-5-1.2 (a): (that as of the effective date)"....no title to any freehold estate in any tidal land or filled land can be acquired by any private individual unless it is formally conveyed by explicit grant of the state by the General Assembly for public trust purposes."
They also included the following provision in R.I.G.L. 46-5-1.2(c): "Any prior enactment which creates a harbor line is to that extent hereby repealed and all harbor lines are abolished...."