Barry v. Grela
| Decision Date | 31 March 1977 |
| Parties | , 7 Envtl. L. Rep. 20,698 |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Maurice M. Goldman, Brewster and Elmer E. Johnson, III, Boston, for defendants, submitted a brief.
Alan A. Green, Hyannis, for plaintiff.
Before HENNESSEY, BRAUCHER, WILKINS, LIACOS and ABRAMS, JJ.
The plaintiff claims a right to walk on the defendants' land, between high and low water marks, in order to fish from a jetty not owned by the defendants. A judge of the Superior Court decided that the plaintiff has the right he claims, and the defendants appealed. We uphold the right as part of the 'free fishing and fowling' granted by the colonial ordinance of 1641--1647, found in the 1649 codification, The Book of the General Lawes and Libertyes, at 50. See Opinion of the Justices, 365 Mass. 681, 685, 313 N.E.2d 561 (1974). With a minor change for clarification, we affirm the judgment.
We summarize the statement of agreed facts. The plaintiff and the defendants own lots of land fronting on Centerville Harbor. A jetty built in 1957 at public expense extends from the beach on the defendants' land into the water, and the defendants do not claim to own the jetty. A prior owner of the defendants' land allowed the plaintiff and members of the public to cross the defendants' beach between mean high water and mean low water to enable them to reach the jetty and to walk on the jetty for the purpose of fishing. Since the defendants acquired the land, they have refused to permit such walking and fishing.
The judge ordered judgment declaring that the plaintiff has the right to use the defendants' 'property between the high and low water mark as a means of access to the jetty,' and a right to fish from the jetty, and directing the defendants not to interfere with those rights. The defendants appealed, and we brought the case here on our own motion.
The colonial ordinance was in the nature of a grant of ownership, 'subject to a reserved easement.' Commonwealth v. Alger, 7 Cush. 53, 81 (1851). The right of fishing on the part of the public is not excluded, and extends to the taking of clams from flats open to the natural ebb and flow of the tide. Weston v. Sampson, 8 Cush. 347, 355 (1851). Our cases 'show too plainly for further discussion, that, if there is a right to go upon flats and to disturb the soil for claims, a fortiori there is a right to pass over them for fishing, in the stricter sense of the word.' Packard v. Ryder, 144 Mass. 440, 441, 11 N.E. 578, 581 (1887). In both...
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Sheftel v. Lebel
...purposes, including boating. See Inhabitants of West Roxbury v. Stoddard, 89 Mass. 158, 7 Allen 158, 171 (1863); Barry v. Grela, 372 Mass. 278, 279, 361 N.E.2d 1251 (1977). Indeed, the owner of the flats is without power (in the absence of legislative authorization) to use them in such a fa......
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Connerty v. Metropolitan Dist. Com'n
...on clam flats of the Commonwealth. See, e.g., Opinion of the Justices, 365 Mass. 681, 687, 313 N.E.2d 561 (1974); Barry v. Grela, 372 Mass. 278, 279, 361 N.E.2d 1251 (1977). While access to fishing in the Commonwealth's waters is a protected right, the Commonwealth has authority to regulate......
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Town of Wellfleet v. Glaze
...bathing on the beach; public has right to pass through the water "without any use of the land underneath"). Compare Barry v. Grela, 372 Mass. 278, 361 N.E.2d 1251 (1977) (public has right to cross tidal flats to reach public jetty in order to fish from jetty); Locke v. Motley, supra at 267 ......
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Pazolt v. Director of Div. of Marine Fisheries
...440, 441, 11 N.E. 578 (1887). See also Weston v. Sampson, supra at 355 (right of access by boat to dig for clams); Barry v. Grela, 372 Mass. 278, 279, 361 N.E.2d 1251 (1977) (right of access on foot for purposes of fishing). In addition, the public may use "lines, seines, spears, nets and a......