STANDARD NO. 506

PROBLEM:

When an instrument conveys land which is described as being bounded by the “shore” or “bank” of tidal waters, should the examiner assume that the conveyance includes the tidal flats abutting the locus?

RECOMMENDATION:

No, unless the description of the property conveyed includes additional language clearly describing the flats; e.g., “also conveying the shore and flats,” or “to the low water and thence by the low water.”

DISCUSSION:

By force of the Massachusetts Colonial Ordinance of 1641-47 as incorporated in the law of Maine, the owner of the upland adjoining tidewater owned to low water mark, or 100 rods below the high water mark where the tide ebbs a greater distance, subject to the rights of the public in the shore and flats as reserved by the Colonial Ordinance 1641-47. Maine cases interpreting the Colonial Ordinance 1641-47 have held that there is a presumption that a conveyance of the uplands includes the flats, unless a contrary intent appears. Marshall v. Walker, 93 Me. 532 (1900); Whitmore v. Brown, 100 Me. 410 (1905) and Stuart v. Fox,129 Me. 407 (1930). Caution: See Whitmore v. Brown, supra, for the weakness of that presumption in the situation where “to the shore and then by the shore” or similar language is used in the description.

The examiner should also review the Submerged Lands Act, M.R.S.A., Title 12, §559 et seq. (was repealed June 30, 1998 and replaced by 12 M.R.S.A. §1865).

First adopted December 7, 1983; amended September 20, 2006.

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