(Continued):What is the “Public Trust” and How Does it Affect Beach Access in Fairfield?
Pfinneas: grace and savoir-faire
8] THE PUBLIC TRUST DOCTRINE: NOTABLE CONNECTICUT CASES
Lay v. King,5 Day 72, 1811 WL 162, (Conn. 1811):
Established the public’s right to fish in and to take shellfish from common waters; the public has the right to fish and shellfish over submerged private lands; also: Peck v. Lockwood, 5 Day 22 (1811). Adams v. Pease, 2 Conn. 481 (1818):
The public has the right to pass and re-pass in navigable rivers. Chapman v. Kimball, 9 Conn. 38, 1831 WL 142,
at *3 (Conn. 1831): •1) “Navigable Waters” defined:“A distinction is always maintained between rivers navigable and those not navigable. –Of the former the public alone has the right; — of the latter, individuals may and generally do own the same right as over other real estate.” •2) Rights in “Navigable Waters”:The line between public and private rights is the high-water mark, referred to as the line of ordinary high water. (reaffirmed: Mihalczo v. Borough of Woodmont, 400 A.2d 270, 271-72 (Conn. 1978). •3) Definition of activities or uses: …“Public rights include fishing, boating, hunting, bathing, taking shellfish, gathering seaweed, cutting sedge, and of passing and repassing…”
Teddy & Snowball: scouting new friends
Enfield Toll Bridge Co. v. Hartford N.H. R. Co.,
17 Conn. 40, 1845 WL 431, at *5 (Conn. 1845):
In deciding the issue of whether the Connecticut River was to be considered a public river (and thus governed by the trust), the CT Supreme Court adopted the "navigable-in-fact test" and concluded that the CT River is navigable even above tide water influence.
Town of Wethersfield v. Humphrey, 20 Conn. 218, 1850 WL 664, at *7 (Conn. 1850):
Discussing non-tidal influenced navigability, and drawing in the essential element of commerce: “(Navigation) only is such, and those only are navigable waters, where the public (emphasis added) pass and repass upon them, with vessels or boats, in the prosecution of useful occupations. There must be some commerce or navigation which is essentially valuable. A hunter or fisherman, by drawing his boat through the waters of a brook or shallow creek, does not create navigation, or constitute their waters channels of commerce.”
Simons v. French, 25 Conn. 346 (1856):
Ownership by the public specifically extends up to the “high water mark.”
Tillie: who's just arrived?
Mather v. Chapman, 40 Conn. 382 (1873):
The title of a riparian (riverbank) proprietor terminates at the ordinary high water mark.
Geer v. Connecticut, 161 U.S. 519 (1896):
Regarding transportation of wild fowl over state lines: the states owned the wild animals within their borders and could strictly regulate their management and “harvest”: “the right to preserve game flows from the undoubted existence in the State of a police power.”
Town of Orange v. Resnick, 109 A. 864, 866
(Conn. 1920): •1) CT recognizes both the tidal and "navigable-in-fact" tests.While CT case law had focused on coastal waters, “all tidewater is prima facie navigable . . . .” •2) the public had established “rights of fishing, boating, hunting, bathing, taking shellfish, gathering seaweed, cutting sedge. And of passing and repassing . . . .” •3) However, all of these rights “are necessarily extinguished, pro tanto, by any exclusive occupation of the soil below the high-water mark by the riparian owner. The only substantial paramount public right is the right to the free and unobstructed use of navigable waters for navigation.” The term “exclusive occupation” is typically interpreted as a structure, such as a dock used to access the water, terminating landward within private property.
Nies v. Bulkey, 132 A. 873, 874-75 (Conn. 1926) and
Edward Balf Co. v. Hartford Elec. Light Co., 138 A. 122, 125 (Conn. 1927):
CT applies the federal test of navigability (waters not subject to the ebb and flow of the tide).
Bogey: shoreside sportsman
State v. Brennan, 3 Conn. Cir. 413 (1965):
“It is settled in Connecticut that the public has the right to boat, hunt, and fish on the navigable waters of the state.” Bloom v. Water Resources Commission, 254 A.2d 884, 887 (Conn. 1969):
“The state, as representative of the public, is the owner of the soil between the high- and low-water mark upon navigable waters where the tide ebbs and flows.” Michalczo v. Woodmont, 175 Conn. 535 (1978):
Defined that “High water mark” = “mean high water mark” = “ordinary high water mark;” and that private ownership of submerged lands is possible, only when basins are dredged from upland, or from inland, non-navigable waters. Leydon v. Town of Greenwich, 777 A.2d 552, 557 n.17 (Conn.2001):
CT State Supreme Court declares the town's residents-only beach-access policy unconstitutional: “Under the public trust doctrine, members of the public have the right to access the portion of any beach extending from the mean high tide line to the water, although it does not give a member of the public the right to gain access to that portion of the beach by crossing the beach landward of the mean high tide line.” Leydon claimed that the Town's residents-only access policy violated the First Amendment because it prevented other individuals from gathering in a public place to exercise their guaranteed rights of assembly and free speech.
Ace Equipment Sales, Inc. v. Buccino, 869 A.2d 626, 631 n.7 (Conn. 2005):
The man-made status of waterways doesn’t matter for purposes of the public trust doctrine: only navigability.
Jasper: pausing, having spotted a regular playmate
Kempner v. Town of Greenwich,562 F.Supp.2d 242 (2008):
“...the Town (Greenwich, CT) has not put forth argumentation, or evidence, that prior versions of its Beach Policy were constitutional,” and had violated Stamford resident Paul Kempner’s First Amendment rights of speech/association in 2005, when it fined him for trespassing after he rode his bicycle into Greenwich Point.
As a cyclist, Kempner had attempted to avoid the non-resident admission & parking fees developed pursuant to the 2001 (Leydon v. Town of Greenwich) decision. The Town reduced those fees after Kempner filed his complaint in 2006 (Civil Action No. 3-06-CV-1393 (JCH), and as such, asserted that Kempner lacked standing to sue (demonstration to the court sufficient connection to and harm from the law or action challenged that supports the party's participation in the case). That challenge was dismissed, since James P. Schwarz, 50, of Stamford, had been added as a plaintiff. The court upheld the town's right to collect fees to cover the cost of the running the facility, (which could not be paid at the beach itself: non-residents were required to obtain the passes off-site, in advance). A second claim of discrimination was dismissed, since, as a senior citizen, Kempner was exempt from the individual admission fee implemented pursuant to the Leydon decision.
Lula: chargé d'affaires of the beach
Some Notable Connecticut Statutes: CONN. GEN. STAT. ANN. § 4-67e: Requires coordination of water resources policy; CONN. GEN. STAT. ANN. § 7-151a: Establishes terminology & defines “state waters”; CONN. GEN. STAT. ANN. § 7-147: Regulates obstructions in waterways; CONN. GEN. STAT. ANN. § 15-12: Defines terminology and regulates obstructions on lands bordering navigable waters; CONN. GEN. STAT. ANN. § 15-140d: Prohibits obstructions to navigation or public use of waters under state jurisdiction; CONN. GEN. STAT. ANN. §§ 22a-16 to 22a-17: Connecticut Environmental Policy Act; CONN. GEN. STAT. ANN. §§ 22a-341 to 22a-349a: Provisions governing channel access and channel lines.
This essay is written for informational purposes, not as legal scholarship, researched from publicly available sources and government documents. We strive to keep these links current, but occasions may arise wherin upgrades to State of Connecticut sites or editing of other portals by their domain owners may cause the links to mis-direct. If this happens, let us know (simply by clicking any image on this page) and we will endeavor to correct.
Lola: the sand, as though a moonscape... she, as though weightless...
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