A. The Public Trust Doctrine
Public rights of access to and use of the tidal waterways and their shores,
including the ocean, bays, and tidal rivers, in the United States predate the founding of this country. The rights are based in the common law rule of the Public Trust Doctrine. First codified by the Roman Emperor Justinian around 500 AD as part of Roman civil law, the Public Trust Doctrine establishes the public’s right to full use of the seashore as declared in the following quotation from Book II of the Institutes of Justinian: “By the law of nature these things are common to all mankind – the air, running water, the sea, and consequently the shores of the sea. No one, therefore, is forbidden to approach the seashore, provided that he respects habitations, monuments, and the buildings, which are not, like the sea, subject only to the law of nations.”
Influenced by Roman civil law, the tenets of public trust were maintained
through English Common Law and adopted by the original 13 colonies, each in their own form. The grants that form the basis of the titles to private property in New Jersey never conveyed those public trust rights, which were reserved to the Crown. Following the American Revolution, the royal rights to tidal waterways and their shores were vested in the 13 new states, then each subsequent state, and have remained a part of law and public policy into the present time. Tidal waterways and their shores always were, and remain, subject to and impressed with these public trust rights.
2. Lands and Waters Subject to Public Trust Rights
In the United States, lands and waters subject to public trust rights are generally tidal waterways to either the ordinary high water line or the ordinary low water line and those lands that are beneath them. States that mark the boundary at the ordinary high water line are considered “high water states,” while those that mark the boundary at the ordinary low water line are considered “low water states.” New Jersey is a high water state and it further clarifies that the upland boundary of lands owned by the state is the Mean High Water (MHW) or the mean high tide line. MHW is a tidal datum that is the arithmetic average of the high water heights observed over a specific 18.6-year water Metonic Cycle. This line has been established for the entire New Jersey coastline. All lands and waters extending seaward of the MHW line are held in
trust by the state on behalf of the public. The rights of the public are vested in the state as owner and trustee. These publicly owned lands include tidelands, shores of tidal rivers and streams, the land beneath oceans and tidal rivers and streams (submerged lands) and filled lands formerly flowed by the tide. As the Public Trust Doctrine has evolved over the years, courts have ruled that the dry sand areas landward of the MHW line are also subject to certain public rights under the Pubic Trust Doctrine, as needed for enjoyment of the tidal waterways and lands below the MHW line.
Tidelands, also referred to as riparian lands, are all those lands now or formerly flowed by the tide in a natural waterway (see Figure 3), including filled lands. In New Jersey, tidelands are held in trust by the state for the public unless these lands have been conveyed to other uses. Even when the state conveys tidelands to private ownership, they do not convey the public trust interest in the lands. The upper boundary of tidelands is the mean high water line and all lands seaward of this line are subject to the Public Trust Doctrine and are to be administered by the state in the public interest.
b. Submerged Lands
Submerged lands are those lands that are situated below the mean low water line. They include the lands beneath the sea, tidal rivers and bays. In 1953, the US Submerged Lands Act (43 U.S.C. 1301-1315) affirmed state ownership and control of submerged lands extending from the coastline out to three geographical miles. In New Jersey, submerged lands are considered the same as tidelands and are subject to public trust rights and duties under state law.
c. jus publicum, jus privatum – Special Property Titles
Unlike most property titles, the title to lands subject to public trust rights is not singular, due to the special and public nature of these lands. Instead, lands subject to public trust rights are vested with two co-existing titles, one dominant and the other subservient. The jus publicum is the dominant title and can be described as the bundle of trust rights granted to the public to fully use and enjoy these lands and waters for commerce, navigation, fishing, bathing and other related public purposes. These public rights are vested in the state as owner and trustee of lands subject to public trust rights. The subservient title, jus privatum, represents the private property rights that may exist in the use and
possession of lands subject to public trust rights. The courts often cite the important distinction between these two titles when defining a state’s authority to convey lands subject to public trust rights to private ownership, and when describing the public rights remaining in these lands that have been so conveyed.
In New Jersey, the upland owner’s boundary is the mean high water line. Below that line, the state is the “fee simple absolute” owner of this land, owning both the private (jus privatum) and the public (jus publicum) titles, as trustee for the public. So, in the case of an ocean beach, the state holds both titles regardless of whether or not there is a private landowner upland of the mean high water line. A state can convey its jus privatum interest into private property ownership, but can never convey the jus publicum interest nor relinquish its trust responsibilities. This leads to a scenario in which a private property owner can be in possession of lands which the state is the trustee of certain public rights of access to and use of under the Public Trust Doctrine. Because the jus publicum title is dominant, a private property owner may not legally prevent the public from using lands below the mean high water line.
d. Dry Sand Areas
New Jersey Supreme Court Cases have held that various stretches of dry sand areas above the mean high water line are subject to certain rights of access to and use by the public, in order to fully enjoy lands subject to public trust rights.
The amount of dry sand will vary depending on a consideration of factors
established in the NJ Supreme Court Case Matthews v. Bay Head Improvement Association, 95 N.J. 306 (1984). Factors to be considered when determining the amount of dry sand available for public use include:
∗ location of the dry sand area in relation to the foreshore
∗ extent and availability of surrounding publicly-owned upland sand area
∗ nature and extent of the public demand
∗ usage of the upland sand by the owner