In their quiet title action initiated in 1984 against the Town of Wells, the State Bureau of Public Lands, and various individuals,1 Edward B. Bell and other owners of land bounded by the sea at Moody Beach in Wells2 sought a judicial declaration and injunction limiting the use the public may make of the beach. After a four-week bench trial, the Superior Court (York County; Brodrick, J.) on October 1, 1987, entered judgments in plaintiffs’ favor declaring the state of the legal title to Moody Beach. In doing so, the court reviewed and applied the rules of property law governing the ownership of intertidal land 3 in Maine, declared the Public Trust in Intertidal Land Act4 unconstitutional, and made a factual determination that the public had acquired no easement over Moody Beach by local custom or otherwise.5 On the present appeal,6 we affirm.
We agree with the Superior Court’s declaration of the state of the legal title to Moody Beach. Long and firmly established rules of property law dictate that the plaintiff oceanfront owners at Moody Beach hold title in fee to the intertidal land subject to an easement, to be broadly construed, permitting public use only for fishing, fowling, and navigation (whether for recreation or business) and any other uses reasonably incidental or related thereto. Although contemporary public needs for recreation are clearly much broader, the courts and the legislature cannot simply alter these long-established property rights to accommodate new recreational needs; constitutional prohibitions on the taking of private property without compensation must be considered. On this basis we agree with the Superior Court’s conclusion that the Public Trust in Intertidal Land Act, which declares an unlimited right in the public to use the intertidal land for “recreation,” is unconstitutional. Finally, on the record in this case no public easement by local custom has been proven to exist at Moody Beach,7 even assuming — as need not be decided in this case — that in *170Maine a public easement may be acquired over privately owned land by local custom.
The Facts
Moody Beach is a sandy beach located within the Town of Wells. It is about a mile long and lies between Moody Point on the north, the Ogunquit town line on the south, the Atlantic Ocean on the east, and a seawall on the west. Moody Beach has a wide intertidal zone with a strip of dry sand above the mean high water mark. More than one hundred privately owned lots front on the ocean at Moody Beach. In addition, the Town of Wells in the past has acquired by eminent domain three lots which it uses for public access to the ocean. Each plaintiff now before the court owns a house or cottage situated on one of 28 private oceanfront lots. Each lot is about 50 feet wide and is bordered on the west by Ocean Avenue. At trial, the parties stipulated that the plaintiff oceanfront owners hold title to the parcels described in their deeds in fee simple absolute and that their parcels were bounded on the Atlantic Ocean. A public beach, now known as Ogunquit Beach, lies immediately to the south of Moody Beach; the Village of Ogunquit acquired that beach by eminent domain in 1925.
The evidence at trial regarding the history of public recreational use of Moody Beach was inconclusive. Dr. Edwin Churchill, chief curator of the Maine State Museum, testified that visitors to 17th century Maine used the beaches and a number of hotels were operating in the Wells area by the latter half of the 19th century. An 1865 history of Wells specifically refers to a “large hotel on the beach which is much patronized in summer by persons who are in search of sea air and bathing.” Dr. Churchill testified that the beach in question was Wells Beach but that Wells Beach then encompassed the areas now known as Ogunquit, Moody, and Wells Beaches. Recreational activities took place on the beaches of Cape Elizabeth and Kennebunk, and Dr. Churchill inferred that similar activities occurred on the beaches of Wells in the 19th century. Dr. Churchill, however, found no specific reference to recreational activity in the particular area now known as Moody Beach.
The testimony regarding more recent public recreational use of Moody Beach was conflicting. Defendants’ witnesses testified that they always had considered Moody Beach public and that the public had used the beach for general recreational purposes for as long as they could remember. On the whole evidence, however, the Superior Court found:
The only open and continuous public use ... proved to exist in this case for the 20 years preceding the filing of this lawsuit ... was the public’s (and the plaintiffs’ for that matter) consistent habit of strolling up and down the length of Moody Beach. All of the plaintiffs testified that they were perfectly willing to permit this, never complained about it and would continue to permit this activity in the future.
I.
The Public Easement in the Privately Owned Intertidal Land Does Not Extend Beyond That Reserved in the Colonial Ordinance Broadly Construed
A. The Upland Owner’s Fee Title to Intertidal Land
On the first appeal in this case, we examined in detail the historical sources of the legal regime governing the ownership of intertidal land in Maine. Bell v. Town of Wells, 510 A.2d 509 (Me.1986) (Bell 7).8 *171The elaborate legal and historical researches reflected in the extensive briefs filed with us on this second appeal fail to demonstrate any error in the conclusions we reached less than three years ago.
Long before 1820 it was established in the common law of Massachusetts, applicable to its entire territory including the District of Maine, that the owner of shoreland above the mean high water mark presumptively held title in fee to intertidal land subject only to the public’s right to fish, fowl, and navigate. See Storer v. Freeman, 6 Mass. 435 (1810) (Parsons, C.J.) (involving land in Cape Elizabeth in the District of Maine). That rule of law governing titles to intertidal land had its origin in the Colonial Ordinance of 1641-47 of the Massachusetts Bay Colony and long before the separation of Maine was received into the common law of Massachusetts by long usage and practice throughout the jurisdiction of the Commonwealth. Id. at 438. Then, by force of article X, section 3 of the Maine Constitution,9 that property rule was confirmed as the law of the new State of Maine. Only 11 years later, this court speaking through Chief Justice Mellen categorically rejected an argument that the rule of real property law taken into the common law from the Colonial Ordinance did not prevail in Maine:
Ever since [the 1810 decision in Storer v. Freeman ], as well as long before, the law on this point has been considered as perfectly at rest; and we do not feel ourselves at liberty to discuss it as an open question.
Lapish v. Bangor Bank, 8 Me. 85, 93 (1831) (emphasis added). The very next year the Massachusetts Supreme Judicial Court, speaking through Chief Justice Shaw, stated of the rule vesting fee ownership of intertidal land in the upland owner:
[T]he rule in question ... being a settled rule of property, it would be extremely injurious to the stability of titles, and to the peace and interests of the community, to have it seriously drawn in question.
Barker v. Bates, 30 Mass. (13 Pick.) 255, 258 (1832) (Colonial Ordinance applies in territory of former Plymouth Colony).10 See also Barrows v. McDermott, 73 Me. 441 (1882) (rule of property law derived from the Colonial Ordinance applies in Pis-cataquis County, even though originally a part of the Acadia Colony).
The pioneer Supreme Court opinion on coastal property rights, Shively v. Bowlby, 152 U.S. 1, 14 S.Ct. 548, 38 L.Ed. 331 (1894), written by Justice Gray, formerly *172Chief Justice of the Massachusetts Supreme Judicial Court, emphasizes the uniqueness of the Maine11 and Massachusetts legal rule governing title to intertidal land or flats:
In Massachusetts, by virtue of an ancient colonial enactment, commonly called the Ordinance of 1641, but really passed in 1647, and remaining in force to this day, the title of the owner of land bounded by tide water extends from high water mark over the shore or flats to low water mark, if not beyond one hundred rods. The private right thus created in the flat is not a mere easement, but a title in fee, which will support a real action, or an action of trespass quare clausum fregit, and which may be conveyed by its owner with or without the upland; and which he may build upon or enclose, provided he does not impede the public right of way over it for boats or vessels. But his title is subject to the public rights of navigation and fishery; and therefore, so long as the flats have not been built upon or enclosed, those public rights are not restricted or abridged_ It is because of the ordinance vesting the title in fee of the flats in the owner of the upland, that a conveyance of his land bounding on the tide water, by whatever name, whether “sea,” “bay,” “harbor” or “river,” has been held to include the land below high water mark as far as the grantor owns.
Id. at 18-19, 14 S.Ct. at 554-55 (citations omitted).
The brief of the amici curiae contends that the State of Maine on coming into the Union on separation from Massachusetts “obtained title to its intertidal lands under the ‘equal footing’ doctrine,”12 a doctrine that has been most recently discussed by the United States Supreme Court in Phillips Petroleum Co. v. Mississippi, 484 U.S. 469, 108 S.Ct. 791, 98 L.Ed.2d 877 (1988).13 Any such revisionist view of history comes too late by at least 157 years. See Lapish v. Bangor Bank, 8 Me. at 93 (1831). Prior to separation the Commonwealth of Massachusetts had already granted to the upland owners fee title in the intertidal land within its entire territory including the District of Maine. Contrary to the amicus argument, there was nothing in the pre-1820 Massachusetts common law governing title to the intertidal zone that was repugnant to the constitution of the new State. As already noted, in absence of such repugnance, article X, section 3 of the Maine Constitution declared that all laws in force in the District of Maine in 1820 would remain in force in the new State. See n. 9 above. Furthermore, article X, section 5 of the new Maine Constitution declared:
All grants of lands ... which have been ... made by the said Commonwealth [of Massachusetts], before the separation of said District [of Maine] shall take place, and having ... effect within the said district, shall continue in full force, after the said district shall become a separate State.
See Massachusetts Act of Separation, Mass.Laws 1819, ch. 161, § 1 Seventh.14 The Phillips Petroleum decision in 1988 in no way contradicts the plain and carefully explained decision in 1893 in Shively v. Bowlby, 152 U.S. at 18-19, 14 S.Ct. at 554-55, that Massachusetts and Maine had much earlier exercised their statehood powers over their intertidal lands and had *173adopted rules of real property law very different from those prevailing in many other states. 484 U.S. at —-, 108 S.Ct. at 799, 98 L.Ed.2d at 890.
In sum, we have long since declared that in Maine, as in Massachusetts, the upland owner’s “title to the shore [is] as ample as to the upland.” State v. Wilson, 42 Me. 9, 28 (1856). See also Marshall v. Walker, 93 Me. 532, 536, 45 A. 497, 498 (1900) (“the proprietor of the main holds the shore ... in fee, like other lands, subject, however, to the jus publicum, the right of the public to use it for the purposes of navigation and of fishery”).
B. The Public Easement Reserved in Intertidal Land
Starting with the rule of real property law that title to intertidal land is privately held in fee, the only question presented by the present appeal is the scope of the rights that the common law has reserved to the public to use that privately owned land. That reservation of public rights, which we have denominated an easement, Bell I, 510 A.2d at 516; Marshall v. Walker, 93 Me. at 540, 45 A. at 499, derives its definition from the same Colonial Ordinance that granted the fee to the upland owner. As we said in Barrows v. McDermott, 73 Me. at 448, “[w]hen a statute or ordinance has thus [by community acceptance and practice] become a part of the common law of a State, it must be regarded as adopted in its entirety....”15
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. We have held that the public may fish, fowl, or navigate on the privately owned land for pleasure as well as for business or sustenance, Barrows v. McDermott, 73 Me. at 449; 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. at 24; 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. Ldbbey, 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,16 delimit the public’s right to use this privately owned land.
Plainly the general recreational easement claimed by the Town of Wells cannot be justified as encompassed within or reasonably related to fishing, fowling, or navigation. The Town of Wells does not attempt any such justification. Instead, it argues that the public rights of fishing, fowling, and navigation are not exclusive; that the *174listing does not exhaust the public rights retained by the common law out of the property interest vested in the upland owner. The Town points to evidence of colonial use of beaches for swimming and football and other games. We do not find the Town’s argument persuasive. By itself, the historical fact of recreational activities on privately owned land, whether intertidal or other land, says little as to who was engaging in those activities or what was the scope of any legal rights of the public to be there. Activities of an inconsequential and nonintrusive nature — even if they were in fact public activities — might well have had the acquiescence and participation of the private owners, as the Superior Court found was the case with regard to the modern-day strolling the length of Moody Beach. In any event, all the cases in Massachusetts and Maine recognizing the common law principles of intertidal property interests read the Colonial Ordinance as having restricted the reserved public easement to fishing, fowling, and navigation and related uses. For example, this court in Marshall v. Walker, 93 Me. at 536, 45 A. at 498, in declaring the nature of the jus publicum in the intertidal land as “the right of the public to use it for the purposes of navigation and of fishery,”17 set forth only activities related to those specified uses in the following oft-quoted summary:
Others may sail over them, may moor their craft upon them, may allow their vessels to rest upon the soil when bare, may land and walk upon them, may ride or skate over them when covered with water bearing ice, may fish in the water over them, may dig shell fish in them, may take sea manure from them, but may not take shells or mussel manure or deposit scrapings of snow upon the ice over them.
Id. at 536-37, 45 A. at 498 (emphasis added). Plainly Marshall v. Walker is no authority for permitting public use of intertidal land for general recreational purposes.
A related argument, also made by the Town of Wells, is one that was put forth by an amicus curiae before the justices of the Massachusetts Supreme Judicial Court in 1974 when they were considering the question of the scope of the public easement in the intertidal zone. That argument was that
we should interpret the colonial ordinance as vesting ... the right to allow all significant public uses in the seashore[;] that while fishing, fowling and navigation may have exhausted those uses in 1647, these public uses change with time and now must be deemed to include the important public interest in recreation.
Opinion of the Justices, 365 Mass. 681, 688, 313 N.E.2d 561, 567 (1974) (stating argument of amicus curiae, unanimously rejected by the Massachusetts justices). Our answer is the same as the unanimous opinion of the Massachusetts justices: “[T]he grant [of a fee interest] to private parties effected by the colonial ordinance has never been interpreted to provide the littoral owners only such uncertain and ephemeral rights as would result from such an interpretation.” Id. No decision of either the Maine or the Massachusetts court supports any such open-ended interpretation of the public uses to which privately owned intertidal land may be subjected.
Maine has no reported case where a claim of a public easement for general recreation such as bathing, sunbathing, and walking on privately owned intertidal land has even been asserted. We cannot accept the argument of the Town of Wells that the absence of precise prior authority in Maine leaves it open for us to disregard the language of the Colonial Ordinance and to fashion a “no more burdensome” public easement that will meet the undoubted needs of modern society for more public recreational facilities. The absence of direct Maine authority is, at best for the Town, a neutral factor in our decision. Furthermore, we do have case authority squarely on point to guide us in deciding the question presented to us in Maine for the first time. Two Massachusetts Supreme Judicial Court cases, decided in 1907 *175and 1961, as well as the 1974 unanimous advisory opinion of its justices that is quoted above, have considered the exact question raised by this appeal and have ruled adversely to the claim now made by the Town of Wells.
Butler v. Attorney General, 195 Mass. 79, 80 N.E. 688 (1907), held that the public easement in intertidal land does not extend to public bathing. The Massachusetts court noted that the Colonial Ordinance mentioned no public rights except for fishing, fowling, and navigation. It reasoned as follows:
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, that part of the beach or shore above low water mark, where the distance to high water mark does not exceed one hundred rods, 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.
Id. at 83-84, 80 N.E. at 689 (citations omitted).
Michaelson v. Silver Beach Improvement Ass’n, 342 Mass. 251, 259, 173 N.E.2d 273, 278 (1961), held that an artificial beach in front of the plaintiffs’ seashore property created by public dredging became the private property of the plaintiffs by the doctrine of accretion,18 and held further that the defendant Association of other property owners in the vicinity should be enjoined from using the plaintiffs’ newly created beach “for usual bathing purposes, down to the low water mark.” Finally, in 1974 the justices of the Massachusetts court rendered a well reasoned opinion that walking along privately owned intertidal land, except to the extent it is incidental to fishing, fowling, or navigation, does not fall within the public easement reserved out of the grant of private ownership by the Colonial Ordinance. Opinion of the Justices, 365 Mass. 681, 313 N.E.2d 561. The Massachusetts justices unanimously informed the Massachusetts House of Representatives that a proposed statute creating a “public on-foot free right-of-passage” along the state’s seashore between the mean high water line and the extreme low water line would constitute an unconstitutional taking of private property. Id. at 689-92, 313 N.E.2d at 568-69.
The Maine common law rules defining the property interests in intertidal land come from the same Colonial Ordinance source as the Massachusetts common law rules on that subject, and the Maine case development on the subject has in no significant respect departed from that in Massachusetts. The public need for access along the seashore was certainly as strong in Massachusetts in 1974 as in Maine today. In these circumstances, the three unanimous Massachusetts opinions, addressing the precise issue here raised in Maine for the first time, are persuasive precedent in the case at bar.
A public easement for bathing, sunbathing, and recreational walking cannot be justified on the factual assumption that it is “no more burdensome” on the private landowner than the Colonial Ordinance easement for fishing, fowling, and navigation. To justify adding a further easement on the ground it is “no more burdensome” is on its face self-contradictory. No one suggests or could suggest that any such public easement for bathing, sunbathing, and recreational walking is to be substituted for the ancient easement. Fishing, fowling, and navigation remain important uses of the Maine coast. If the private landowner now has ten fishermen, fowlers, and boaters using his land, adding ten bathers, sunbathers, and walkers obviously *176makes the aggregate public easement more burdensome. Furthermore, one would expect that a direct comparison of the magnitude of the relative burdens would show that at Moody Beach a substitution of bathers, sunbathers, and walkers for the fishermen, fowlers, and boaters using the beach would in fact result in a much greater burden upon the fee owner.
A court would have other difficulties as well with declaring a public easement for bathing, sunbathing, and recreational walking on the privately owned intertidal land. On the one hand, those uses fall considerably short of the comprehensive recreational use the Town of Wells urges as the scope of the modem public need, and also considerably short of the routine uses to which public beaches are put. We can find no principled basis for allowing bathing, sunbathing, and walking on privately owned intertidal land, and not allowing picnics and frisbee-throwing and the many other activities people regularly engage in on the beach. But there is no basis in law or history for declaring a public easement for general recreation. That would turn the intertidal zone of Moody Beach into a public recreational area indistinguishable from the adjacent Ogunquit Beach, which the Village of Ogunquit acquired in its entirety by eminent domain.
The foregoing considerations demonstrate why a court cannot extend a public easement in the privately owned intertidal land beyond that reserved in the Colonial Ordinance and defined by over 340 years of history. To declare a general recreational easement, the court would be engaging in legislating, and it would do so without the benefit of having had the political processes define the nature and extent of the public need. It would also do so completely free of the practical constraints imposed on the legislative branch of government by the necessity of its raising the money to pay for any easement taken from private landowners. The objectives of the Town of Wells are better achieved by a public taking of a public easement tailored to its specific public need.
Thus, as we have seen, the legal regime governing the ownership of intertidal land was firmly established in the District of Maine prior to Statehood. It had been so declared in 1810 by the Massachusetts Supreme Judicial Court in a case involving intertidal land in Cape Elizabeth. Storer v. Freeman, 6 Mass. 435. As previously noted, in 1820 the Maine Constitution both confirmed the grant of the intertidal land in fee to the upland owners and took over as the law of Maine the reserved public easement limited to fishing, fowling, and navigation. See Me. Const, art. X, §§ 3, 5. Over a century ago, this court emphatically rejected the argument “that the court may change [that legal regime] if satisfied that it does not operate beneficially under present circumstances.” Barrows v. McDermott, 73 Me. at 449. The judicial branch is bound, just as much as the legislative branch, by the constitutional prohibition against the taking of private property for public use without compensation.
II.
The Public Trust in Intertidal Land Act Constitutes an Unconstitutional Taking
The legislature, by enacting in 1986 the Public Trust in Intertidal Land Act, 12 M.R.S.A. §§ 571-573, declared that “the intertidal lands of the State are impressed with a public trust,” id. § 571, and that those rights of the public include a “right to use intertidal land for recreation,” id. § 573(1)(B).19 The legislature thus imposed upon all intertidal land (defined by the Act in accordance with the Colonial Ordinance) an easement for use by the general public for “recreation” without limitation. The Superior Court held the Public Trust in Intertidal Land Act unconstitutional as a violation of the separation of powers provision of the Maine Constitution, art. III. We do not reach the separation of powers question because the Act takes for public *177use much greater rights in the intertidal zone than are reserved by the common law and therefore the Act on its face constitutes an unconstitutional taking of private property. We agree therefore with the Superior Court that the Act is unconstitutional, but we ground our holding on the violation of the Takings Clauses of both the Maine and the United States Constitutions. See Me. Const, art. I, § 21; U.S. Const, amend. V.
The Public Trust in Intertidal Land Act in creating a public easement for “recreation” leaves that term both undefined and unlimited — with the sole exceptions that the public recreation may not interfere with any structure or improvement lawfully maintained on intertidal land, nor may motorized vehicles other than watercraft be used there unless authorized by the State or municipality. See 12 M.R.S.A. § 573(2)(B), (D). The very nature of those exceptions emphasizes the all-inclusive recreational easement created by the Act over intertidal land owned in fee by the upland property holders. By its use of the unqualified term “recreation,” the Act permits both individual and organized recreation of any form and nature. Members of the public in unrestricted numbers are thus given the right to come on this private property, not only for bathing, sunbathing, and walking as general recreation, but also for any other recreational activity whatever including, for example, ball games and athletic competitions, camping for extended hours, operation of vehicles (including even ATVs and other motorized vehicles, with State or municipal authorization), nighttime beach parties, and horseback riding. This comprehensive easement for public recreation sharply differs in nature and magnitude from the easement for fishing, fowling, and navigation and related uses that the common law alone reserved in favor of the public out of the fee ownership of intertidal land it at the same time vested in the upland owners. The Act thus constitutes a taking of private property for a public use. Since the Act provides no compensation for the landowners whose property is burdened by the general recreational easement taken for public use, it violates the prohibition contained in both our State and Federal Constitutions against the taking of private property for public use without just compensation.
Our analysis and conclusion are the same under both Constitutions. Long ago this court said:
[The Takings Clause] was designed to operate and it does operate to prevent the acquisition of any title to land or to an easement in it or to a permanent appropriation of it, from an owner for public use, without the actual payment or tender of a just compensation for it.
Cushman v. Smith, 34 Me. 247, 265 (1852) (emphasis added). In their 1974 Opinion of the Justices already discussed above, the justices of the Massachusetts court have already answered the very question now before us. 365 Mass. 681, 313 N.E.2d 561. They declared that a proposed statute merely to create a public footpath along the intertidal zone, a much more limited and less intrusive public easement than that taken by the Maine Act, would constitute an unconstitutional taking of property from the owners of the fee. The Massachusetts justices’ reasoning has precise relevance to the case at bar:
The elusive border between the police power of the State and the prohibition against taking of property without compensation has been the subject of extensive litigation and commentary. See Bosselman, Callies & Banta, The Taking Issue (1973). But these difficulties need not concern us here. The permanent physical intrusion into the property of private persons, which the bill would establish, is a taking of property within even the most narrow construction of that phrase possible under the Constitutions of the Commonwealth and of the United States.
It is true that the bill does not completely deprive private owners of all use of their seashore property in the sense that a formal taking does. But the case is readily distinguishable from such regulation as merely prohibits some particular use or uses which are harmful to the public. See Commonwealth v. Alger, 7 *178Cush. 58, 86 (1851). The interference with private property here involves a wholesale denial of an owner’s right to exclude the public. If a possessory interest in real property has any meaning at all it must include the general right to exclude others. Nichols, Eminent Domain (Rev. 3d ed.) § 5.1[1] (1970).
Id., 365 Mass, at 689, 313 N.E.2d at 568.
The public recreational easement taken by the Maine Act over oceanfront owners’ land must be distinguished from the governmental action regulating private land use that we have in recent years examined under the Takings Clause. See, e.g., Hall v. Board of Envtl. Protection, 528 A.2d 453 (Me.1987) (restriction on building on sand dunes); Curtis v. Main, 482 A.2d 1253, 1258 (Me.1984) (zoning restrictions); Seven Islands Land Co. v. Maine Land Use Regulation Comm’n, 450 A.2d 475, 482-83 (Me.1982) (restriction on timber harvesting). In those cases of “regulatory taking” we make “a factual inquiry into the substantiality of the diminution in value of the property involved.” Id. at 482. That analysis becomes inappropriate, however, when the issue before us is the constitutionality of a statute that authorizes a physical invasion of private property.20 As one scholar has written:
The modem significance of physical occupation is that courts, while they sometimes do hold nontrespassory injuries compensable, never deny compensation for a physical takeover.
Michelman, Property, Utility, and Fairness: Comments on the Ethical Foundations of “Just Compensation” Law, 80 Harv.L.Rev. 1165, 1184 (1967) (emphasis in original). In Nollanu California Coastal Comm’n, 483 U.S. 825, 107 S.Ct. 3141, 97 L.Ed.2d 677 (1987), where California had conditioned a seaside building permit upon the private owners’ “mak[ing] an easement across their beachfront available to the public on a permanent basis,” the Court found an unconstitutional taking, however slight the adverse economic impact on the owners, saying:
We think a “permanent physical occupation” has occurred, for purposes of that rule, where individuals are given a permanent and continuous right to pass to and fro, so that the real property may continuously be traversed, even though no particular individual is permitted to station himself permanently upon the premises.
Id. at 832, 107 S.Ct. at 3145, 97 L.Ed.2d at 686. See also Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 102 S.Ct. 3164, 73 L.Ed.2d 868 (1982) (invalidating New York law prohibiting landlord from interfering with cable television facilities placed on his premises); Kaiser Aetna v. United States, 444 U.S. 164, 100 S.Ct. 383, 62 L.Ed.2d 332 (1979) (denying federal government’s claim of public’s right to navigate into a private pond opened to the sea by its owner in creating a marina).
The fact that the common law already has reserved to the public an easement in intertidal land for fishing, fowling, and navigation, and for related uses (even though the specific objects of that easement may be pursued for recreation as well as sustenance and profit) does not mean that the State can, without paying compensation to the private landowners, take in addition a public easement for general recreation.21 See Opinion of the Justices, *179365 Mass. 681, 313 N.E.2d 561. The common law has reserved to the public only a limited easement; the Public Trust in Intertidal Land Act takes a comprehensive easement for “recreation” without limitation. The absence of any compensation to the fee owners renders the Act unconstitutional.
III.
The Town of Wells Has Failed to Prove a Public Easement Has Been Established by Local Custom in the Dry Sand Area or the Intertidal Land at Moody Beach
The Superior Court rejected all contentions that the public has acquired rights in Moody Beach by prescription, implied dedication, or local custom. The Town of Wells does not contest the court’s prescription and dedication findings, but it does appeal the court’s finding that the evidence adduced at trial fails to prove public recreational rights established in Moody Beach by local custom. We affirm the judgments of the Superior Court, but we do not find it necessary to decide whether the court was correct in holding that under the common law of Maine the public may acquire by local custom an easement over privately owned land. Very few American states recognize the English doctrine of public easements by local custom. See 3 Powell on Real Property If 414[9] (1986 & Supp. 1988). The Maine case that discusses such easements in some detail, Piper v. Voorhees, 130 Me. 305, 311, 155 A. 556, 559 (1931), cites with approval the leading Connecticut case rejecting the doctrine, Graham v. Walker, 78 Conn. 130, 133-34, 61 A. 98, 99 (1905). That latter case had held:
[W]e are of opinion that such rules of the English common law as gave [easements by local custom] sanction were unadapted to the conditions of political society existing here, and have never been in force in Connecticut.
The inclusion of “custom” in 14 M.R.S.A. §§ 812 and 812-A (1980), providing a means for preventing the acquisition of easements by “custom, use or otherwise,” is explainable as merely a legislative exercise in overabundant caution. There is a serious question whether application of the local custom doctrine to conditions prevailing in Maine near the end of the 20th century is necessarily consistent with the desired stability and certainty of real estate titles.
In any event the Superior Court’s acceptance of the doctrine of local custom was not essential to its ultimate decision. That decision was adequately founded, without more, on its finding that the Town of Wells had failed to prove at least two factual predicates usually required for application of the local custom doctrine, namely, the public usage must have occurred “so long as the memory of man runneth not to the contrary” and it must have been peaceable and free from dispute. The Town, which bears the burden of proof on the claim of a public easement by local custom, can point to no evidence in this record that compelled the Superior Court to find that those two factual predicates are met. In these circumstances the Town of Wells cannot prevail on appeal from the trial court’s adverse findings. See Luce Co. v. Hoefler, 464 A.2d 213, 215 (Me.1983). Thus, the Town of Wells takes nothing on its local custom argument, even assuming the public may acquire an easement by that means in this State.
*180 Conclusion
As development pressures on Maine’s real estate continue, the public will increasingly seek shorefront recreational opportunities of the 20th and 21st century variety, not limited to fishing, fowling, and navigation. No one can be unsympathetic to the goal of providing such opportunities to everyone, not just to those fortunate enough to own shore frontage. The solution under our constitutional system, however, is for the State or municipalities to purchase the needed property rights or obtain them by eminent domain through the payment of just compensation, not to take them without compensation through legislative or judicial decree redefining the scope of private property rights. Here, whatever various visitors to Moody Beach may have thought, the state of the title to the intertidal land was never in any doubt under the Maine Constitution and relevant case law, and owners, occupiers, buyers, and sellers of shorefront land were entitled to rely upon their property rights as so defined. In the absence of State regulation to the extent permitted by the police power, that is the meaning of our constitutional prohibitions against the taking of private property without just compensation.
The entry is: judgments affirmed.
GLASSMAN, HORNBY and COLLINS, JJ. concur.
. Originally named as defendants were all users of plaintiffs’ property other than persons claiming under instruments recorded in the York County Registry of Deeds. The Superior Court granted status as intervenor-defendants to the Conservation Law Foundation and the Natural Resources Council of Maine, and also to about 40 owners (known as Tier II defendants) of non-oceanfront lots located on the other side of Ocean Avenue from Moody Beach.
. Owners of 45 oceanfront lots at Moody Beach originally joined as plaintiffs in this action, but in the course of the litigation the owners of 17 lots withdrew or were dismissed. The plaintiff owners of the remaining 28 lots are now appel-lees before this court. The case authorities and briefs variously refer to the holders of title to such lots as oceanfront, upland, riparian, or littoral owners.
. Intertidal land means ‘land ... affected by the tides between the mean high watermark and either 100 rods seaward from the high watermark or the mean low watermark, whichever is closer to the mean high watermark." 12 M.R. S.A. § 572 (Supp.1988). That definition derives directly from the Colonial Ordinance of 1641-47. See Bell v. Town of Wells (Bell I), 510 A.2d 509, 512 (Me.1986). At times the alternative terms "flats," "foreshore," and “beachfront” are used.
. 12 M.R.S.A. §§ 571-573 (Supp.1988), enacted during the pendency of this litigation by P.L. 1985, ch. 782 (eff. July 16, 1986).
. At trial defendants, in addition to relying on the doctrine of local custom, asserted that the public had acquired rights to use the intertidal zone based on the doctrines of easement by prescription and implied dedication. The Superior Court also rejected the prescription and dedication claims, and no party has pursued those issues on appeal.
. All defendants have joined in this appeal with the exception of the Tier II defendants. See n. 1 above. For convenience, this opinion refers collectively to the appealing defendants as the Town of Wells. We have received comprehensive briefs and reply briefs from all the appealing defendants, as well as an extensive amicus curiae brief supporting defendants’ position from named individuals associated with the University of Maine School of Law and the Marine Law Institute.
. The public by their claim based on local custom asserted a right to use the dry sand area as well as the intertidal zone. At trial the Tier II defendants asserted that they had acquired a private and personal easement to use the intertidal zone at Moody Beach, regardless of whether the public at large enjoyed such a right. The Superior Court rejected their claim, and the Tier II defendants have not joined this appeal.
. Shortly after filing their complaint, plaintiff oceanfront owners moved to join the State of Maine as a necessary party and the Superior Court granted the motion. In June 1985 the State of Maine and other defendants moved to dismiss plaintiffs' quiet title actions. In granting that motion, the Superior Court held that the State was trustee of public rights in Moody Beach, that this interest made the State an indispensable party, and that the quiet title actions were therefore barred by the doctrine of sovereign immunity.
In Bell I, 510 A.2d at 515-18, we vacated that dismissal, holding that plaintiff oceanfront owners, and not the State, presumptively hold fee title to the intertidal land by virtue of the Colonial Ordinance and that the State is not "a *171trustee of the public easement in the intertidal zone at Moody Beach." Id. at 517. In remanding to the Superior Court, we stated that the Town of Wells and the other defendants “may by proof at trial establish the public right, if any, to use the upland, and the scope of the public right to use the intertidal zone." Id. at 518. We suggested the Attorney General could remain in the case to represent the public interest. Id. at 519.
. Article X, section 3 of the Maine Constitution read originally and still reads today:
All laws now in force in this State, and not repugnant to this Constitution, shall remain, and be in force, until altered or repealed by the Legislature, or shall expire by their own limitation.
This provision is derived from the Massachusetts Act of Separation, Mass. Laws 1819, ch. 161. See Bell I, 510 A.2d at 514 n. 10.
. Chief Justice Shaw also authored Commonwealth v. Alger, 61 Mass. (7 Cush.) 53 (1851), a leading case construing and applying the Colonial Ordinance. Alger emphasized the fee title held by the upland owner in intertidal land:
[I]t is entirely clear that, since the adoption of the colony ordinance, every grant of land, bounding upon the sea, or any creek, cove, or arm of the sea, and either in terms including flats to low water mark, or bounding the land granted on the sea or salt water, with no terms limiting or restraining the operation of the grant, and where the land and flats have not been severed by any intervening conveyance, has had the legal effect to pass an estate in fee to the grantee, subject to a limited right of way for boats and vessels.
Id. at 80-81. Chief Justice Shaw also noted:
The same principles have been affirmed by a series of decisions of the supreme court of Maine, and the circuit court of the United States in Maine, holding that the principles of the Massachusetts colony ordinance have been established by usage and adoption, and long held as the common law of that state. Knox v. Pickering, 7 Greenl. 106; Dunlap v. Stetson, 4 Mason 349, 366; Lapish v. Bangor Bank, 8 Greenl. 85; Emerson v. Taylor, 9 Greenl. 42; Deering v. Long Wharf, 12 Shep. 51, 64.
Id. at 79.
. Justice Gray wrote:
The rule or principle of the Massachusetts ordinance has been adopted'and practised on in Plymouth, Maine, Nantucket and Martha’s Vineyard, since their union with the Massachusetts Colony under the Massachusetts Province Charter of 1692.
Shively v. Bowlby, 152 U.S. 1, 19, 14 S.Ct. 548, 555 (1984) (emphasis added).
. The Town of Wells makes a similar argument.
. The "equal footing” doctrine is based on the principle that new States enter the Union on an equal footing with the original thirteen States.
. The Massachusetts Act of Separation provided by its own terms that it would be incorporated into the Maine Constitution, where it remains in force as article X, section 5. The text of article X, section 5 is omitted from modern printings of the Maine Constitution, but is to be found in the text of the Maine Constitution prefixed to the 1820 Laws of Maine, the 1821 Laws of Maine (vol. 1), and Revised Statutes of 1841, 1857, and 1871.
. Although the Superior Court found as historical fact that the framers of the Colonial Ordinance did not intend to curtail the public use of the intertidal zone that was current at the time for travel and for driving and resting cattle, the Superior Court also found:
This right by necessity and usage apparently did not survive long enough to be formally approved by the courts as a common law right....
At least by 1810, when the Massachusetts Supreme Judicial Court declared the state of the title to intertidal land in Cape Elizabeth in the District of Maine, the Colonial Ordinance in its entirety had been received as the full compass of applicable common law principles. See Storer v. Freeman, 6 Mass. 435 (1810).
. Even a liberal construction of what is incidental to fishing or navigation does not authorize an "ice-cutter ... temporarily to incumber another’s flats with the snow scraped from his ice.” McFadden v. Haynes & DeWitt Ice Co., 86 Me. 319, 324, 29 A. 1068, 1069 (1894).
. Of course the court’s omission of "fowling" was not intentional.
. Much earlier in Maine we had held that the lands of the oceanfront owner may be increased by natural accretion. See King v. Young, 76 Me. 76 (1884).
. The Public Trust in Intertidal Land Act was enacted in early 1986 at a time when Bell I, 510 A.2d 509, was still pending in this court but at a time too late for the Act to be an issue in that first appeal. See n. 8 above.
. The Town of Wells argues further that we should not ask whether there has been a taking of the intertidal zone, but whether the statutory attempt to enlarge the public easement would be a taking relative to the upland owner’s property as a whole. The Town would be correct if no separable interest in the intertidal zone were affected, but that is not the case. If a municipality, for example, imposes setback restrictions, whether there is a taking depends on the impact on the lot as a whole of the regulatory regime in the neighborhood as a whole. But if the municipality then commences to use all or part of that setback as a public way, the taking involves the specific land burdened by the easement.
. The principle that a state, under the guise of interpreting its common law, cannot sanction a physical invasion of the property of another, is in no way vitiated by the Supreme Court’s holding in PruneYard Shopping Center v. Robins, 447 U.S. 74, 100 S.Ct. 2035, 64 L.Ed.2d 741 (1980), that the California Supreme Court’s construction of the California Constitution’s free speech clause did not perpetrate a taking. The California court had held that individuals seeking to distribute pamphlets in a privately owned shop*179ping center continued to enjoy "public forum” access rights under the state constitution even though the public forum doctrine under the First Amendment enunciated in Amalgamated Food Employees v. Logan Valley Plaza, Inc., 391 U.S. 308, 88 S.Ct. 1601, 20 L.Ed.2d 603 (1968), had been curtailed by Lloyd Corp. v. Tanner, 407 U.S. 551, 92 S.Ct. 2219, 33 L.Ed.2d 131 (1972). Quoting the California court, the Supreme Court in PruneYard stated: “It bears repeated emphasis that we do not have under consideration the property or privacy rights of an individual homeowner or the proprietor of a modest retail establishment. As a result of advertising and the lure of a congenial environment, 25,000 persons are induced [by the commercial property owner] to congregate daily_’’ 447 U.S. at 78, 100 S.Ct. at 2039. The decision affirmed in PruneYard granted no easement or other inherent right of access to the public or to any individual; it merely regulated the terms under which the property owner could lawfully permit selective public access.