Purdie v. Attorney Gen.

• Decision Date: 24 June 1999
• Docket Number: No. 97–405.,97–405.
• Citation: 732 A.2d 442,143 N.H. 661
• Court: New Hampshire Supreme Court
• Parties: G. William PURDIE and others v. ATTORNEY GENERAL.

143 N.H. 661

732 A.2d 442

G. William PURDIE and others

v.ATTORNEY GENERAL.

No. 97–405.

Supreme Court of New Hampshire.

June 24, 1999.

Upton, Sanders & Smith, of Concord (Frederic K. Upton, on the brief and orally), for the plaintiffs.

Philip T. McLaughlin, attorney general (Jennifer J. Patterson, assistant attorney general, on the brief, and Leslie J. Ludtke, associate attorney general, orally), for the State.

Michael L. Donovan, of Concord, by brief for the Town of Rye, as amicus curiae.

Nancy L. Girard, of Concord, by brief for the Conservation Law Foundation, as amicus curiae.

Noucas & Keenan, P.A., of Portsmouth (Christopher W. Keenan, on the brief), for Concerned Citizens of the Seacoast, as amicus curiae.

Devine, Millimet & Branch, P.A., of Manchester (Thomas Quarles, Jr. and Thomas F. Irwin, on the brief), for Audubon Society of New Hampshire, New Hampshire Wildlife Federation, Appalachian Mountain Club, and New Hampshire Rivers Council, as amici curiae.

BRODERICK, J.

The State appeals an order of the Superior Court (McHugh , J.) denying its motion for summary judgment and granting the plaintiffs' motion for summary judgment. The plaintiffs are approximately forty beach-front property owners in Rye. The trial court ruled that RSA chapter 483–C (Supp.1998), which defines the public's trust rights in coastal shorelands, effects an unconstitutional taking of private property. On appeal, the State argues that: (1) the legislature had authority to establish a statutory boundary line for public trust rights in coastal shorelands; (2) issues of material fact were disputed; (3) the trial court erred in making factual findings and relying on policy considerations in granting the plaintiffs' motion for summary judgment; and (4) the trial court abused its discretion by rejecting the State's offer of new evidence to disprove the court's erroneous factual findings. We affirm.

I

In 1995, the legislature enacted RSA chapter 483–C, which recognizes the State's public trust rights in "all shorelands subject to the ebb and flow of the tide to the high water mark and subject to those littoral rights recognized at common law." RSA 483–C:1, II. The statute defines "high water mark" as the highest "syzygy" line or "the furthest landward limit reached by the highest tidal flow" over the nineteen-year tidal cycle, excluding "abnormal" storms. RSA 483–C:1, V. Soon after the statute was enacted, the plaintiffs brought an action asserting that the statute effected a taking of their property without just compensation in violation of Part I, Article 12 of the New Hampshire Constitution and the Fifth Amendment of the United States Constitution.

To limit the issues for trial, the parties agreed to file cross-motions for summary judgment. In ruling for the plaintiffs, the trial court concluded that "settled" common law defines the term "high water mark" as the " mean high tide line," and therefore, the legislature's action in setting the boundary line at the highest elevation of tidal action was an unconstitutional extension of public property rights and a taking of the plaintiffs' property. The State's motion for reconsideration was denied, and this appeal followed.

II

We first address the State's argument that the trial court erred in denying its motion for summary judgment because the legislature acted within its authority in establishing the "high water mark" as the boundary for public trust rights in coastal shorelands at the highest elevation of tidal action. The plaintiffs contend that this issue was not preserved for our review because the State's notice of appeal did not specifically assert that the court erred by denying its motion. We disagree. The first question raised on appeal was "[w]hether the New Hampshire legislature has authority to establish a statutory public boundary elevation when that elevation is within the ebb and flow of the tide." This was the principal legal issue raised in the State's summary judgment motion. Therefore, the issue was adequately preserved for our review. See Sup.Ct. R . 16(3)(b) ("question presented will be deemed to include every subsidiary question fairly comprised therein").

"When reviewing the denial of a motion for summary judgment, we consider the pleadings and any accompanying affidavits, and all proper inferences drawn from them, in the light most favorable to the nonmoving party." Mahan v. N.H. Dep't of Admin. Services , 141 N.H. 747, 748, 693 A.2d 79, 81 (1997). "[S]ummary judgment may be granted only where no genuine issue of material fact is present, and the moving party is entitled to judgment as a matter of law." Goss v. City of Manchester , 140 N.H. 449, 450–51, 669 A.2d 785, 786 (1995) (quotation omitted).

The State argues that it was entitled to summary judgment because the statutory definition of "high water mark" in RSA chapter 483–C merely codifies New Hampshire common law establishing public property rights in the shoreland at the highest high tide mark. The plaintiffs contend, and the trial court found, that the common law limits public ownership of the shoreland to the "mean high tide," or the average of all high tides over a nineteen-year tidal cycle, regardless of weather conditions. Both parties agree that lands subject to the ebb and flow of the tide are held in public trust.

Opinion of the Justices (Public Use of Coastal Beaches) , 139 N.H. 82, 89, 649 A.2d 604, 609 (1994). Moreover, no one disputes that the common law boundary line between public and private ownership of the shorelands is at the high water mark. Concord Manuf'g Co. v. Robertson , 66 N.H. 1, 27, 25 A. 718, 730–31 (1889). Therefore, whether the legislature followed common law in setting the boundary line at the highest elevation of tidal action depends on how the common law defines the high water mark.

The nature of the high water or high tide mark has been subject to different interpretations because the furthest landward reach of the water varies with each high tide. Maloney & Ausness, The Use and Legal Significance of the Mean High Water Line in Coastal Boundary Mapping , 53 N.C. L.Rev. 186, 195–98 (1974). Because both parties rely on our decision in Opinion of the Justices (Public Use of Coastal Beaches) , 139 N.H. 82, 649 A.2d 604, we begin our analysis with a review of that case.

In Opinion of the Justices (Public Use of Coastal Beaches) , we advised the legislature that proposed legislation, which would create a public easement in the "dry sand" area along New Hampshire's beaches, would constitute a taking of private property without just compensation. Id . at 91–94, 649 A.2d at 609–11. The first question presented for our consideration was "[w]hether New Hampshire law identifies a particular coastal feature or tidal event as outlining the maximum shoreward extension of the public trust area boundary...." Id . at 87, 649 A.2d at 607. After stating that "[t]he introduction of any line other than high-water mark as the marine boundary would overturn common-law rights that had been established here," id . at 89, 649 A.2d at 608, we noted:

While it is settled ... that the public trust in tidewaters in this State extends landward to the high water mark, the following common law questions are not settled: what is the high water mark; where is it located; and how is it located. We do not purport to determine in this opinion answers to such questions.

Id . (emphasis added.)

The State contends that, by leaving the questions relating to the nature and location of the high water mark unanswered, we were inviting the legislature to decide those issues. The State, however, misreads our holding. In Opinion of the Justices (Public Use of Coastal Beaches) , we characterized those issues as "common law questions." The determination of common law questions is a judicial, not a legislative, function. See Cloutier v. State Milk Control Board , 92 N.H. 199, 201–02, 28 A.2d 554, 556 (1942). Under the Separation of Powers Doctrine, see N.H. CONST. pt. I, art. 37, we could not, and did not, delegate this function to the legislature. See Cloutier , 92 N.H. at 202, 28 A.2d at 556. The State apparently misconstrues our reluctance in an advisory opinion to address extraneous issues that may arise from the passage of proposed law as a delegation to the legislature to decide those issues for us. During oral argument, however, the State acknowledged that this court has the authority to "settle" the common law regarding the nature and location of the high water mark. Accordingly, we undertake this task today.

After an extensive review, we conclude that New Hampshire common law establishes the high water mark at the level of mean high tide. In 1862, this court referred to the public-private shoreland boundary line as the "ordinary high water mark." Clement v. Burns , 43 N.H. 609, 614 (1862) (emphasis added). Over one hundred years later, we held that public "[t]idewaters are those in which the tide ordinarily ebbs and flows." Sibson v. State , 110 N.H. 8, 10, 259 A.2d 397, 399 (1969) (quotation omitted) (emphasis added).

The context of the Sibson case makes clear that the common law public-private boundary line or "ordinary high water mark" was at the level of mean high tide. In support of our position, we cited Borax Consolidated, Ltd. v. Los Angeles , 296 U.S. 10, 56 S.Ct. 23, 80 L.Ed. 9 (1935), in which the United States Supreme Court held that the shoreland boundary for purposes of federal grants was the "ordinary high water mark," which it defined as the "mean high tide line," that is, "the average height of all the high waters" over a complete tidal cycle. Borax Consolidated , 296 U.S. at 22–23, 26–27, 56 S.Ct. 23. Moreover, a similar issue was considered in Sibson after remand. See Sibson v. State , 115 N.H. 124, 336 A.2d 239 (1975) ("Sibson II" ). Although the majority in Sibson II did not discuss the boundary line because it concluded that the State regulation at issue was not a taking, Justice Grimes, who determined...