McGarvey v. Whittredge

LEVY, J.,

with whom ALEXANDER and GORMAN, JJ., join.

[¶ 59] The public’s common law right to use Maine’s intertidal lands has historically been defined using the terms “fishing, fowling, and navigation.” See Bell v. Town of Wells (Bell II), 557 A.2d 168, 173 (Me.1989); Marshall v. Walker, 93 Me. 532, 536-37, 45 A. 497, 498 (1900). In Bell II, the Court’s majority unequivocally stated: “The terms ‘fishing,’ ‘fowling,’ and ‘navigation,’ liberally interpreted, delimit the public’s right to use this privately owned land.” 557 A.2d at 173 (footnote omitted). Today, however, the separate opinion of my colleagues in concurrence suggests an approach that would effectively overrule Bell II by concluding that “[t]he three terns adequately provide context, but they simply do not and have never, until Bell II, been understood to wholly or exclusively define the public trust rights.” Saufley Concurring Opinion ¶ 56. Further, that approach would bestow upon the public a general right to cross privately-owned intertidal land to gain access to the ocean — a newfound right that would exceed even the most “sympathetically generous” interpretation of fishing, fowling, and navigation. See Bell II, 557 A.2d at 173. I do not agree with such an expansion of Maine’s common law because, in my view, it would violate the doctrine of stare decisis and misapply the Court’s common law authority.

A. The Public’s Common Law Right to Use the Intertidal Land is Limited to Fishing, Fowling, and Navigation

[¶ 60] In Bell II, the Court’s majority surveyed more than one and one-half centuries of Maine decisions regarding the public’s right to use the intertidal land and concluded that the public has no common law right to engage in general recreation. 557 A.2d at 173, 176. That decision recognized that the public’s rights in this sphere have never been divorced from the three public uses reserved in the Colonial Ordinance-fishing, fowling, and navigation: “The Colonial Ordinance as received into the common law of Maine and Massachusetts reserved out of the fee title granted to the upland owner a public easement only for fishing, fowling, and navigation.” Id. at 173.

[¶ 61] Bell II did not treat the terms fishing, fowling, and navigation as shorthand or code for broader public trust rights untethered to these three enumerated uses. The Bell II majority opinion explained:

We have held that the public may fish, fowl, or navigate on the privately owned *637land for pleasure as well as for business or sustenance, Barrows v. McDermott, 73 Me. [441, 449 (1882) ]; and we have in other ways given a sympathetically generous interpretation to what is encompassed within the terms “fishing,” “fowling,” and “navigation,” or reasonably incidental or related thereto. For example, the operator of a power boat for hire may pick up and land his passengers on the intertidal land, Andrews v. King, 124 Me. 361, 129 A. 298 (1925); and “navigation” also includes the right to travel over frozen waters, French v. Camp, 18 Me. 433 (1841), to moor vessels and discharge and take on cargo on intertidal land, State v. Wilson, 42 Me. [9, 24 (1856) ]; and, after landing, “to pass freely to the lands and houses of others besides the owners of the flats,” Deering v. Proprietors of Long Wharf, 25 Me. 51, 65 (1845). Similarly, we have broadly construed “fishing” to include digging for worms, State v. Lemar, 147 Me. 405, 87 A.2d 886 (1952), clams, State v. Leavitt, 105 Me. 76, 72 A. 875 (1909), and shellfish, Moulton v. Libbey, 37 Me. 472 (1854). We have never, however, decided a question of the scope of the intertidal public easement except by referring to the three specific public uses reserved in the Ordinance. The terms “fishing,” “fowling,” and “navigation,” liberally interpreted, delimit the public’s right to use this privately owned land.

557 A.2d at 173 (footnote omitted).

[¶ 62] To “delimit” means “to fix or determine the limits of.” Webster’s Third New International Dictionary 597 (2002). It is true that we have historically applied what the concurrence alternately describes as an “expansive,” “liberal,” “broad,” and “sympathetically generous” approach to the public’s right to use intertidal lands. Saufley Concurring Opinion ¶¶ 37, 39, 40, 41, 57. With that approach, we have, over time, greatly expanded the scope of the “public” that benefits from the right to fish, fowl, and navigate, and we have construed those terms far beyond their traditional meanings. We have never understood fishing, fowling, and navigation to merely establish a context for some broader right or rights. By asserting that fishing, fowling, and navigation do not “wholly or exclusively define the public trust rights,” Saufley Concurring Opinion ¶ 56, the concurrence proposes a holding that would fundamentally alter, rather than merely expand, Maine’s existing common law.

B. Stare Decisis

[¶ 63] The doctrine of stare decisis “is the historic policy of our courts to stand by precedent and not to disturb a settled point of law.” Myrick v. James, 444 A.2d 987, 997 (Me.1982). It exists because respect for legal precedent lends stability to the law and enables the public to place reasonable reliance on judicial decisions affecting important matters. Even when we have a certain “unease” with the analysis of a prior decision, we do not overrule the decision without a compelling and sound justification. See Shaw v. Jendzejec, 1998 ME 208, ¶¶ 8, 12, 717 A.2d 367, 370-71, 371-72; Alexandre v. State, 2007 ME 106, ¶ 35, 927 A.2d 1155, 1164.

[¶ 64] Society’s interest in being able to rely on established precedent is at its apex with regard to judicial precedents that ex-posit property rights. See Oregon ex rel. State Land Bd. v. Corvallis Sand & Gravel Co., 429 U.S. 363, 381, 97 S.Ct. 582, 50 L.Ed.2d 550 (1977). Legal questions affecting ownership of land, once answered, “should be considered no longer doubtful or subject to change.” United States v. Title Ins. & Trust Co., 265 U.S. 472, 486-87, 44 S.Ct. 621, 68 L.Ed. 1110 (1924) (quotation marks omitted). “Such decisions become rules of property, and many *638titles may be injuriously affected by their change.” Id. at 486, 44 S.Ct. 621 (quotation marks omitted).

[¶ 65] In Bell v. Town of Wells (Bell I), we noted the importance of stare decisis and “the stability of the legal concepts of property in the State,” and in connection with our common law’s adherence to the principles of the Colonial Ordinance, we quoted the decision of the Massachusetts Supreme Judicial Court in Barker v. Bates, 30 Mass. 255, 258 (1882):

[I]t would be extremely injurious to the stability of titles, and to the peace and interests of the community, to have [private ownership of intertidal land] seriously drawn in question. It is founded upon a usage and practice so ancient, immemorial and unvarying, that without tracing its precise origin, it must now be deemed a rule of common law proved by such usage.

Bell I, 510 A.2d 509, 513, 518 (Me.1986) (quotation marks omitted); see also Barrows, 73 Me. at 448 (“[the Colonial Ordinance] has been so largely accepted and acted on by the community as law that it would be fraught with mischief to set it aside”). The Bell II majority continued to respect the property rights of fee owners of intertidal lands by holding that the establishment of a public easement that exceeds uses within the scope of fishing, fowling, and navigation is an unconstitutional taking of private property without just compensation, whether the easement is created by the Legislature or the judiciary. See Bell II, 557 A.2d at 176, 177-79, 180; see also Opinion of the Justices, 365 Mass. 681, 313 N.E.2d 561, 569-71 (1974) (declaring that proposed legislation creating a footpath along privately-owned intertidal land would constitute an unconstitutional taking).

[¶ 66] Because Maine’s roughly 3500 miles of ocean coastline16 are a defining feature of both the state and its people, any judicial decision that reformulates the legal standard by which the competing rights of private landowners and the public to use intertidal land are determined must explicitly account for the principle of stare decisis. The concurrence would chart a course that is in plain conflict with Bell II without providing compelling and sound justification for this new direction.17

[¶ 67] The standard ultimately proposed by the concurrence — that the Court will henceforth “strike a reasonable balance between private ownership of the intertidal lands and the public’s use of those lands” — would be bounded only by what a majority of the Court determines to be reasonable at any given time. Saufley Concurring Opinion ¶ 57. With this new approach, the jurisprudential anchor provided by the terms fishing, fowling, and navigation would be lifted, and with it, the guidance and stability that those terms have brought to property rights would be lost. We should remain true to the doctrine of stare decisis and not effectively overrule our decision in Bell II.

C. The Common Law Approach

[¶ 68] In Bell II, we acknowledged, consistent with our long-standing approach *639to the common law development of the public’s rights in the intertidal zone, that the terms fishing, fowling, and navigation have been and should be given a “sympathetically generous” and broad interpretation. See Bell II, 557 A.2d at 173. As the concurrence acknowledges, we have expanded other aspects of the public’s rights in intertidal lands based on the three enumerated public uses so as to account for evolving social and commercial circumstances. Although the plain language of the Ordinance grants free fishing to “Ev-erie Inhabitant who is an hous-holder,” The Book of the General Lauues and Lib-ertyes Concerning the Inhabitants of the Massachusets (1648), reprinted in The Laws and Liberties of Massachusetts 35 (1929), that right, which we early-on described with reference to “householder[s],” was later regarded as a right of the “public.” See Parker v. Cutler Milldam Co., 20 Me. 353, 357-58 (1841); Duncan v. Sylvester, 24 Me. 482, 486 (1844); Marshall, 93 Me. at 536-37, 45 A. at 498 (“the public may enjoy all these rights [including fishing] in common with the owner [of intertidal land]”); Andrews, 124 Me. at 363, 129 A. at 299. We have also eliminated the effect of the language of the Colonial Ordinance that restricts free fishing to “within the precincts of the town where [the householders] dwell.” See Leavitt, 105 Me. at 80, 81-82, 72 A. at 877-78 (quotation marks omitted) (upholding legislation that excepted inhabitants of a town from restrictions on clamming, but noting that where towns did not issue permits, “there is free fishing for every one”). Additionally, we have broadly interpreted the right expressed in the Colonial Ordinance of “passage of boats or other vessels ... to other men’s houses and lands” to include the right to moor vessels on intertidal lands and discharge and take on cargo or ferry passengers. See Deering, 25 Me. at 64-65 (quotation marks omitted); Andrews, 124 Me. at 364, 129 A. at 299. We have also made clear that the right of navigation extends to commercial and recreational uses. See Andrews, 124 Me. at 364, 129 A. at 299.

[¶ 69] A sympathetically generous and broad interpretation of the public’s rights is not, however, without limits. See McFadden v. Haynes & DeWitt Ice Co., 86 Me. 319, 325, 29 A. 1068, 1069 (1894) (stating that the public right of fishing does not include cutting ice in intertidal areas); Moore v. Griffin, 22 Me. 350, 356 (1843) (holding that the public right of fishing does not include the taking of mussel-bed manure from the intertidal land of another). In Bell II, we followed two Massachusetts cases that held that the public’s right to use intertidal land does not include “bathing.” 557 A.2d at 175 (citing as persuasive precedent, Butler v. Attorney General, 195 Mass. 79, 80 N.E. 688 (1907), and Michaelson v. Silver Beach Improvement Ass’n, Inc., 342 Mass. 251, 173 N.E.2d 273 (1961)).

[¶ 70] Since our earliest decisions concerning ownership and use of intertidal lands, we have adhered to our common law approach centered on the three enumerated public uses. See, e.g., Bell II, 557 A.2d at 171, 173; accord id. at 183 (Wathen, J., dissenting); Bell I, 510 A.2d at 513-15; Lapish v. Bangor Bank, 8 Me. 85, 93 (1831). That approach has not prevented us from accounting for the ever-changing circumstances of society when applying the principles of the Colonial Ordinance. See Barrows, 73 Me. at 448-50; Woodman v. Pitman, 79 Me. 456, 460-63, 10 A. 321, 323-25 (1887) (recognizing the emergence of the ice harvesting industry and the declining need for travel on frozen navigable waterways). We do not rigidly apply ancient common law principles without considering the changed realities of modern *640times. This approach was described eloquently in Woodman:

The inexhaustible and ever-changing complications in human affairs are constantly presenting new questions and new conditions which the law must provide for as they arise; and the law has expansive and adaptive force enough to respond to the demands thus made of it; not by subverting, but by forming new combinations and making new applications out of, its already established principles, — the result produced being only “the new corn that cometh out of the old fields.”

79 Me. at 458, 10 A. at 322. The common law requires courts to account for “the ever varying circumstances of new cases presented and ... the newly developed industries of the age [while not] setting aside its plain doctrines because they are not in accord with our own views of what it should be.” Barrows, 73 Me. at 449-50; see also In re Robinson, 88 Me. 17, 23, 33 A. 652, 654 (1895) (“The common law would ill deserve its familiar panegyric as the ‘perfection of human reason,’ if it did not expand with the progress of society and develop with new ideas of right and justice.”).

[¶ 71] In short, we should apply, as have the generations of Maine jurists that have preceded us, a sympathetically generous and broad interpretive approach when construing the uses arising from the public trust rights in Maine’s intertidal lands, but we should do so without deviating from the core requirement that the uses are delimited by the terms fishing, fowling, and navigation as these terms have and will continue to evolve.

D. Whether Scuba Diving is a Form of “Navigation”

[¶ 72] Framed in terms of Maine’s established common law, the question this case ultimately presents is whether, as the Superior Court determined, scuba diving is an activity within the ambit of the enumerated public right of navigation. McGarvey and Kleintop assert that navigation requires the use of a boat or vessel,' the traditionally identified instruments used to navigate through the water. They also argue that scuba diving involves underwater swimming, and because “bathing” was a facet of the general recreational activity that we considered and rejected in Bell II, our decision in Bell II should control. See Bell II, 557 A.2d at 174-76.

[¶ 73] The majority in Bell II explicitly relied on Butler, a 1907 Massachusetts decision, to support the proposition that bathing, an aspect of the asserted right of general recreation, is not within the public’s right to use intertidal lands. See Bell II, 557 A.2d at 175 (citing Butler, 80 N.E. 688). The Butler court explained:

In the seashore the entire property, under the colonial ordinance, is in the individual, subject to the public rights. Among these is, of course, the right of navigation, with such incidental rights as pertain thereto. We think that there is a right to swim or float in or upon public waters as well as to . sail upon them. But we do not think that this includes a right to use for bathing purposes, as these words are commonly understood, [the intertidal areas] of the beach or shore ... whether covered with water or not. It is plain, we think, that under the law of Massachusetts there is no reservation or recognition of bathing on the beach as a separate right of property in individuals or the public under the colonial ordinance.

80 N.E. at 689 (citations omitted). The Butler court concluded that intertidal lands are held in fee “subject ... to the easement of the public for the purposes of navigation and free fishing and fowling, *641and of passing freely over and through the water without any use of the land underneath, wherever the tide ebbs and flows.” Id. (emphasis added).

[¶ 74] Butler thus distinguished bathing from swimming. See also Bell II, 557 A.2d at 174-76, 177 (addressing “bathing,” not “swimming”). Bathing, as it was “commonly understood,” was not included in the right of navigation, and therefore it was not within the public’s right to use intertidal lands. Butler, 80 N.E. at 689; see also Michaelson, 173 N.E.2d at 278 (applying the holding in Butler without discussion).

[¶ 75] By the functional definition relied on in Butler, scuba diving is not bathing because it primarily involves “passing freely over and through the water without any use of the land underneath.” See Butler, 80 N.E. at 689. As a matter of function, scuba diving has qualities of navigation because it is only possible with the use of external apparatus such as breathing gas cylinders, breathing regulators, swim fins, weight belts, and buoyancy com-pensators. This equipment enables scuba divers to travel and remain submerged in the water for extended periods. See NOAA Diving Manual: Diving for Science and Technology 5-8 to 5-12, 5-26 to 5-30 (James T. Joiner, ed. 4th ed.2001).18 In particular, dive weights and buoyancy compensators enable scuba divers to achieve neutral buoyancy, facilitating travel over extended distances through the water without touching the bottom. Id. at 5-26, 5-29. Other aspects of scuba diving further equate it with navigation and distinguish it from bathing. Most notably, scuba diving involves the use of underwater navigational aides such as watches, depth gauges,19 and compasses. Id. at 5-42 to 5-44.

[¶ 76] Modern scuba diving did not exist when Butler was decided in 1907, or when we last interpreted “navigation” in Andrews in 1925. Certainly, it did not exist at the time of the Colonial Ordinance. It is of little moment whether the colonists could have foreseen that there would come a day when it was possible for persons to “pass[] freely over and through the water without any use of the land underneath” without the use of a boat or vessel. See Butler, 80 N.E. at 689. What matters is that the public’s right of navigation includes that usage — passing freely over and through the water — and our common law enables us to recognize newly developed methods of travel associated with such usage. By this approach, we have previously concluded that the public’s right of navigation includes the right to travel by skate across intertidal lands covered with ice, see Marshall, 93 Me. at 536, 45 A. at 498, and by horse over navigable rivers when frozen, French, 18 Me. at 434. Neither of these modes of travel involves a boat or a vessel.

*642[¶ 77] For the common law to have the “expansive and adaptive force” described so many years ago in Woodman, 79 Me. at 458, 10 A. at 322, it must account for the technological advances that continually transform the means by which people navigate over and through water. Accordingly, we may apply a “sympathetically generous” interpretation to this area of the common law and include scuba diving as an activity that is within the public’s right to use intertidal land for purposes of navigation. Furthermore, we have previously recognized that the public has the right to walk upon intertidal land when it is incidental to the right of navigation, see Andrews, 124 Me. at 363-64, 129 A. at 299; Wilson, 42 Me. at 24; therefore, walking across intertidal lands to access the ocean in order to scuba dive is also within the public’s right.

E. Conclusion

[¶ 78] Because this case implicates long-established property rights, we should remain true to the common law and apply it so as to account for “the ever varying circumstances of new cases presented and ... the newly developed industries of the age [while not] setting aside its plain doctrines because they are not in accord with our own views of what it should be.” Barrows, 73 Me. at 449-50. The right to fish, fowl, and navigate has been the touchstone for determining the scope of the public’s common law rights in intertidal lands, and, absent a compelling reason, it should remain so. For these reasons, I do not join the separate opinion of my colleagues in concurrence, but I agree that the judgment of the Superior Court should be affirmed.

The entry is:

Judgment affirmed.

. See Nat'l Oceanic & Atmospheric Admin., Ocean and Coastal Management in Maine, http://coastalmanagement.noaa.gov/mystate/ me.html (last visited August 22, 2011).

. Bell II was decided in 1989, and it remains binding precedent that provides a clear and reasoned explanation of the public and private rights inherent in the intertidal zone under Maine's common law. In the ensuing years, we have not reexamined Bell II or questioned its vitality other than in a concurring opinion by one Justice in Eaton v. Town of Wells, 2000 ME 176, ¶¶ 50-55, 760 A.2d 232, 248-50 (Saufley, J., concurring) (asserting that Bell II was incorrectly decided and urging that it should be overruled).

. The National Oceanic and Atmospheric Administration is a civil federal agency that employs many divers; although the NOAA Diving Manual is directed toward NOAA, it provides general guidance for a broad range of dive situations, including recreational diving. D. James Baker, Foreword to NOAA Diving Manual: Diving for Science and Technology vii (James T. Joiner, ed. 4th ed.2001). The website of the Professional Association of Diving Instructors provides a list of basic scuba equipment that is comparable to that of the NOAA Diving Manual. See Introduction to Scuba Equipment, padi.com, http://www.padi. com/scuba/scuba-gear/intro-to-scuba-dive-equipment/default.aspx (last visited August 22, 2011).

. Some divers have replaced watches, depth gauges, and decompression tables with dive computers. NOAA Diving Manual at 5-42. Dive computers are electronic devices that monitor a diver’s depth and time underwater to calculate decompression obligations. Id.