February 11, 2013 20:55
The Massachusetts Supreme Judicial Court weighed in on an ugly property rights case last Friday concerning some beautiful beachfront on Martha’s Vineyard. In White v. Hartigan, SJC 11072 (Feb. 8, 2013), the Court considered whether a deed conveying “the beach” in 1841 sufficed to give the plaintiffs title to “the beach” in 2004, notwithstanding that in the intervening century and a half the original beach had vanished beneath the waves. The Court had little difficulty concluding that, absent an express grant of a moveable parcel, no moveable parcel existed and the plaintiffs’ claims were properly dismissed.
In the case, the Norton and Flynn families, tracing their property rights back to the same scion, enjoyed each others’ company for over a century as upland property owners in a corner of Martha’s Vineyard (near Edgartown for those familiar with the island). But bosom friends may not stay best friends forever. Such was the case here and they had a falling out. Among other things, in deeds conveying parcels of the Norton family property, a reservation was made claiming fractional rights in the beach identified in the 1841 deed, notwithstanding that that beach no longer existed. That was of no matter claimed the Nortons; “they maintain[ed] that their predecessors in title created a beach parcel with a moveable northern boundary that shifts with the landward migration of the beach.” The Flynns contested this theory and the Nortons sued.
The basis for the Nortons’ claim was that “the deeds in their chain of title contain either no landward (northern ) boundary or reference as a landward boundary only moveable natural monuments, thereby creating a moveable parcel.” The Court was “not persuaded.” Although the seaward boundaries of property on the littoral might be moveable, the landward boundary was not. To hold otherwise would promote instability of property rights and would be inequitable to upland property owners who (if the moveable property boundary rule applied) would have no opportunity for the benefit of accretion to seaward, but would bear all the risk of erosion from the sea.
Nor did the language of the original 1841 deed help the Nortons’ cause. The case law was clear that references to impermanent monuments or boundaries did not establish a moveable boundary line. Instead, “the boundary ‘must be taken to refer to the condition of the land at the time the deed was given.’” The Nortons’ 1841 boundary of arable land and ponds was ascertainable and their beach parcel was under water.
This ruling was certainly not groundbreaking, but it is significant nonetheless. The precedents relied on by the Court were of an era where rising sea levels raised no concerns. To be sure, erosion occurred, but no one considered that long-term (even perpetual) submergence might be a more accurate description of what was going on at the shore. Not so today. One can find, for example, maps of how sea level rise will specifically affect Martha’s Vineyard. And Boston has a new report released just last week, Preparing for the Rising Tide.
One prediction of a response to sea level rise will be the evolution of the common law to protect society’s interests. As Oliver Wendell Holmes, Jr. wrote in 1888 in The Common Law:
The substance of the law at any given time pretty nearly corresponds, so far as it goes, with what is then understood to be convenient; but its form and machinery, and the degree towhich it is able to work out desired results, depend very much upon its past.
The Nortons’ theory of a moveable parcel to protect their interests from seaside erosion, could just as easily be applied to seaside submergence. In either case, however, the common law does not suggest their remedy. The past does not lead to their desired result; nor, apparently, does Massachusetts’ highest court find it convenient.