The seaside community of Gloucester was recently the center of a water access case that went before the Appeals Court.

In the settled Maslow v. O’Connor, the court addressed rights in a Gloucester subdivision road.

The defendants own the residential lots abutting the waterfront end of Rackliffe Street, an old and private subdivision road that, before 1925, ended at the mean high-water mark of Wonson’s Cove. Under the Derelict Fee Statute, those defendants also own to the center line of that street next to their lots. However, longstanding case law makes clear that the plaintiffs, who own inland lots along Rackliffe Street, have the right to use that road all the way to its waterfront end. In addition, under legislation intended to encourage waterfront development dating back to the early days of Massachusetts (the Colonial Ordinance of 1641-1647), all members of the public have the right to use tidelands between mean high and mean low tide for purposes of fishing, fowling and navigation.

In 1925, the owners of the waterfront end of Rackliffe Street were granted a license pursuant to Chapter 91 of the Massachusetts General Laws to fill the tidelands and build a seawall. A grassy strip and ramp leading down to the intertidal area are now located on the fill owned by the defendants in what would be the extension of Rackliffe Street. The question in the case was whether the plaintiffs had the right to cross that grassy strip and to use the ramp to reach the water.

Relying principally on the terms of the license itself, the Appeals Court concluded that the plaintiffs did have the right to reach the water. That license contains two conditions. Most importantly, it provides that nothing in it “shall be so construed as to impair the legal rights of any person.” This language is a paraphrase of language in G.L. c. 91, section 17. The other condition prohibited any “building or other structure” on the fill within the lines of Rackliffe Street “extended southerly to the water.”

Because, as abutters of the street, the plaintiffs had the right to use the disputed areas to reach the water in order to exercise their colonial ordinance rights, the Appeals Court concluded that “under the 1925 license, any fill placed in tidelands at the end of Rackliffe could not and did not cut off those abutter rights, as such would have violated the ‘no impairment’ clause.”

The license’s prohibition against buildings in the road as extended to the water reinforced that the license intended that the right of plaintiffs’ predecessors to access the tidelands at the end of Rackliffe Street before the 1925 license “remains today.”
Maslow is yet another reminder that owning waterfront property or property located in a private subdivision can present legal issues that other landowners do not face.

Gordon Orloff is a Boston-based counsel at Rackemann, Sawyer & Brewster.