This letter is in reference to “Court hears feuds over beach ownership,” May 16.

In the 1980s, Maine’s law court used a 1647 Massachusetts ordinance which stated that “the Proprietor of the land adjoining [the sea] shall have proprietie to the low water mark” to declare private coastal land owners owned the intertidal zone. They claimed that “propriety” meant a “fee simple deed,” a definition advanced by Justice Theophilus Parson in the 1810 Massachusetts case of Storer v. Freeman and since repeated in judicial decisions up to and beyond the famous Moody Beach decisions of the 1980s.

That definition is wrong. Recent research in the 1640s-50s Boston Town Records contained numerous entries like the following town order that: “Thomas Clark, late of Dorchester, hath liberty to wharfe before his propriety in the milfeild against the sea.” Perusal of several hundred Massachusetts deeds and all extant Maine deeds before 1760 (several thousand) revealed the same pattern. All grants to coastal properties (always from or originating from the towns) deeded the property with “liberty” or “propriety” to the low water mark. In simple terms, a propriety was essentially an easement; it was fee simple deed! Further, there was not one example in all these documents that deed, grant, etc. was ever equated with “propriety.”

So why did Justice Parson get it so wrong in 1810? “Propriety” was a legal land-related term used the 17th and early 18th centuries; it had become obsolete by the mid-18th century. Without historical training, Parsons could not trace back to the original meaning of “propriety” and simply guessed, unfortunately incorrectly, that the term meant a fee simple deed.

More unfortunate is the fact that Parson’s error has been repeated by Maine courts since. The detailed and documented monograph by this writer and Robert A. Yarumian II, “The Great Land Grab,” supporting the above, will soon be published.

 

Edwin A. Churchill, Ph.D.

historical consultant

Augusta

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