| Part of a series on |
| Environmental law |
|---|
 |
| Pollution control law |
| Natural resources law |
| Reference materials |
| Related topics |
|
 | This article has multiple issues. Please help improve it or discuss these issues on the talk page . (Learn how and when to remove these messages)
|
The public trust doctrine is the principle that the sovereign holds in trust for public use some resources such as shoreline between the high and low tide lines, regardless of private property ownership. [1]
Ancient Roman law set aside res communes omnium (things held in common by all) as not subject to ownership. The juristic Digest specified things which "by natural law are the common property of all" as air, flowing water, the sea, and the seashore. [2] Things common to all human beings could not be privately owned, but they also were not seen as owned collectively by the state as res publicae, public property as the opposite of res privatae, private property. Ownership by the Roman people is expressed by publicum and includes human constructs such as marketplaces, harbors, and theatres as well as public lands. [3]
Practical distinctions were made within the categories of res communes. Breathable air could not be owned, but "air" was distinguished from "sky": aerial space over private property could not be obstructed by someone else in a way that interfered with the owner's use. [4] "Flowing water" was held in common by all (communis), but the water itself was distinguished from the use of the river as a whole. A navigable river was public (publicum) rather than common, [5] meaning that it had to kept accessible for public use and might be regulated and maintained by the state, while the riverbanks and even the riverbed could be privately owned, as long as ownership did not impede the public's use of the river. [6] Disputes over questionable diversions of commonly held water from public waterways for private use could lead to lawsuits over water rights. [7]
In general, the right to sail and fish on the sea could not be infringed, though the sale of private seaside property might involve the voluntary contractual surrender of the right to fish in waters off the coast. [8] The seashore, defined by the reach of the highest winter tide, was held in common and could not be owned. [9] Private structures could be built within the high tide line, but anyone was free to walk on the beach, and if such a structure was destroyed the builder had no more title to rebuild there than anyone else. [10]
This principle became the law in England as well.[ citation needed ] Centuries later, Magna Carta further strengthened public rights. At the insistence of English nobles, fishing weirs which obstructed free navigation were to be removed from rivers.
All fish-weirs are in future to be entirely removed from the Thames and the Medway, and throughout the whole of England, except on the sea-coast.
These rights were further strengthened by later laws in England and subsequently became part of the common law of the United States. The Supreme Court first accepted the public trust doctrine in Martin v. Waddell’s Lessee in 1842, confirming it several decades later in Illinois Central Railroad v. Illinois , 146 U.S. 387 (1892). In the latter case the Illinois Legislature had granted an enormous portion of the Chicago harbor to the Illinois Central Railroad. A subsequent legislature sought to revoke the grant, claiming that original grant should not have been permitted in the first place. The court held that common law public trust doctrine prevented the government from alienating the public right to the lands under navigable waters (except in the case of very small portions of land which would have no effect on free access or navigation).
The public trust applies to both waters influenced by the tides and waters that are navigable in fact. The public trust also applies to the natural resources (mineral or animal) contained in the soil and water over those public trust lands.
This doctrine has been primarily significant in two areas: land access and use, and natural resource law.
The doctrine is most often invoked in connection with access to the seashore. In the United States, the law differs among the fifty states but in general limits the rights of ocean-front property owners to exclude the public below the mean high tide line.
Massachusetts and Maine (which share a common legal heritage) recognize private property ownership to the mean low tide line—but allow public access to the seashore between the low and high tide lines for "fishing, fowling and navigation," traditional rights going back to the Colonial Ordinance of 1647. [11] Maine's Supreme Court in 2011 expanded the public trust doctrine by concluding fishing, fowling and navigation are not an exclusive list; the court allowed the general public to cross private shoreline for scuba diving. [12]
The public trust doctrine also finds expression in the Great Pond law, a traditional right codified in case law and statutes in Massachusetts, Maine, and New Hampshire. [13] The state is said to own the land below the low water mark under great ponds (ponds over ten acres), and the public retains in effect an access easement over unimproved private property for uses such as fishing, cutting ice, and hunting. [14]
In Oregon, a 1967 "Beach Bill" affirmed the state's public trust doctrine, and the right of the public to have access to the seashore virtually everywhere between the low and high tide marks. In California the situation is more complicated: private landowners often try to block traditional public beach access, which can result in protracted litigation. [15] Freshwater use rights have also been subject to litigation in California, under the public trust doctrine. [16]
In England and Wales, there is no general public right to access the foreshore. Most land between the high and low water marks is owned by the Crown Estate, who permit access for recreation, but the courts confirmed in 1821 in the case of Blundell v Catterall that there is no right of access such as the public trust doctrine. [17] The only public right over the foreshore is to pass over it, on water in a boat, for the purposes of fishing. [18]
The doctrine has also been used to provide public access across and provide for continued public interest in those areas where land beneath tidally influenced waters has been filled. In some cases, the uses of that land have been limited (to transportation, for instance) and in others, there has been provision for public access across them.
The doctrine has been employed to assert public interest in oil resources discovered on tidally influenced lands (Mississippi, California) and has also been used to prevent the private ownership of fish stocks and crustacean beds.
In most states in the United States, lakes and navigable-in-fact streams are maintained for drinking and recreation purposes under a public-trust doctrine.
In some countries,[ which? ] the public trust doctrine has been applied to provide environmental protection to natural resources in order to uphold human rights. [19] A recent study also demonstrated that public trust doctrines are transnationalizing. [20]
[The] Maine Supreme Judicial Court affirmed ... that the public has a right to walk across [privately owned] inter-tidal lands to reach the ocean for purposes of scuba diving.
Public property is property that is dedicated to public use. The term may be used either to describe the use to which the property is put, or to describe the character of its ownership. This is in contrast to private property, owned by an individual person or artificial entities that represent the financial interests of persons, such as corporations. State ownership, also called public ownership, government ownership or state property, are property interests that are vested in the state, rather than an individual or communities.
The freedom to roam, or everyman's right, is the general public's right to access certain public or privately owned land, lakes, and rivers for recreation and exercise. The right is sometimes called the right of public access to the wilderness or the right to roam.
Water resources law is the field of law dealing with the ownership, control, and use of water as a resource. It is most closely related to property law, and is distinct from laws governing water quality.
Riparian water rights is a system for allocating water among those who possess land along its path. It has its origins in English common law. Riparian water rights exist in many jurisdictions with a common law heritage, such as Canada, Australia, New Zealand, and states in the eastern United States.
Water right in water law is the right of a user to use water from a water source, e.g., a river, stream, pond or source of groundwater. In areas with plentiful water and few users, such systems are generally not complicated or contentious. In other areas, especially arid areas where irrigation is practiced, such systems are often the source of conflict, both legal and physical. Some systems treat surface water and ground water in the same manner, while others use different principles for each.
Res nullius is a term of Roman law meaning "things belonging to no one"; that is, property not yet the object of rights of any specific subject. A person can assume ownership of res nullius simply by taking possession of it (occupatio). However, in ancient Rome, certain forms of res nullius could never be owned because they were considered to belong either in common to all or to the divine rather than human dominium. The use of res nullius as a legal concept continues in modern civil legal systems.
In real estate, air rights are the property interest in the "space" above the Earth's surface. Generally speaking, owning or renting land or a building includes the right to use and build in the space above the land without interference by others.
The Rivers Access Campaign is an ongoing initiative by the British Canoe Union (BCU) to open up the inland waterways of England and Wales to the public. Under current English and Welsh law, public access to rivers is restricted, and only 2% of all rivers in England and Wales have public access rights.
Navigable servitude is a doctrine in United States constitutional law that gives the federal government the right to regulate navigable waterways as an extension of the Commerce Clause in Article I, Section 8 of the constitution. It is also sometimes called federal navigational servitude.
Robert Gillespie James is a senior United States district judge of the United States District Court for the Western District of Louisiana, and was one of the judges involved in a 2006 water rights legal case, Normal Parm v. Sheriff Mark Shumate.
The Supreme Court decision in Illinois Central Railroad v. Illinois, 146 U.S. 387 (1892), reaffirmed that each state in its sovereign capacity holds title to all submerged lands within its borders and holds these lands in public trust. This is a foundational case for the public trust doctrine. The Supreme Court held a four to three split decision that the State of Illinois did not possess the authority to grant fee title to submerged lands where doing so would preclude exercise of the public right to commercial navigation and fishing in navigable waters.
Ius or Jus in ancient Rome was a right to which a citizen (civis) was entitled by virtue of his citizenship (civitas). The iura were specified by laws, so ius sometimes meant law. As one went to the law courts to sue for one's rights, ius also meant justice and the place where justice was sought.
A great pond in the United States is a pond or lake that is held in trust by the state for public use. Generally, any natural body of water that is larger than 10 acres (40,000 m2) in size is considered public water. In certain New England states, this legal definition exists at both common law and statutory law.
M. C. Mehta v. Kamal Nath was a landmark case in Indian environmental law. In the case, the Supreme Court of India held that the public trust doctrine applied in India.
An easement is a nonpossessory right to use and/or enter onto the real property of another without possessing it. It is "best typified in the right of way which one landowner, A, may enjoy over the land of another, B". An easement is a property right and type of incorporeal property in itself at common law in most jurisdictions.
The Montana Stream Access Law says that anglers, floaters and other recreationists in Montana have full use of most natural waterways between the high-water marks for fishing and floating, along with swimming and other river or stream-related activities. In 1984, the Montana Supreme Court held that the streambed of any river or stream that has the capability to be used for recreation can be accessed by the public regardless of whether the river is navigable or who owns the streambed property. On January 16, 2014, the Montana Supreme Court, in a lawsuit filed by the Public Land/Water Access Association over access via county bridges on the Ruby river in Madison County, Montana reaffirmed the Montana Stream Access Law and the public's right to access rivers in Montana from public easements.
Res extra commercium is a doctrine originating in Roman law, holding that certain things may not be the object of private rights, and are therefore insusceptible to being traded. The doctrine encompasses entities such as humans, public areas, organs, citizenship, and prostitution, and is an exception to the general principle of freedom of contract.
Water law in the United States refers to the Water resources law laws regulating water as a resource in the United States. Beyond issues common to all jurisdictions attempting to regulate water's uses, water law in the United States must contend with:
National Audubon Society v. Superior Court was a key case in California highlighting the conflict between the public trust doctrine and appropriative water rights. The Public Trust Doctrine is based on the principle that certain resources are too valuable to be privately owned and must remain available for public use. In National Audubon Society v. Superior Court, the court held that the public trust doctrine restricts the amount of water that can be withdrawn from navigable waterways. The basis for the Public Trust Doctrine goes back to Roman law. Under Roman law, the air, the rivers, the sea and the seashore were incapable of private ownership; they were dedicated to the use of the public. In essence, the public trust doctrine establishes the role of the state as having trustee environmental duties owed to the public that are subsequently enforceable by the public. There is judicial recognition of this, dictating that certain rights of the public are key to individual common law rights. Judicial recognition of the public trust doctrine has been established for tidelands and non-navigable waterways, submerged land and the waters above them, and preservation of a public interest.
A right of way is a transportation corridor along which people, animals, vehicles, watercraft, or utility lines travel, or the legal status that gives them the right to do so. Rights-of-way in the physical sense include controlled-access highways, railroads, canals, hiking paths, bridle paths for horses, bicycle paths, the routes taken by high-voltage lines, utility tunnels, or simply the paved or unpaved local roads used by different types of traffic. The term highway is often used in legal contexts in the sense of "main way" to mean any public-use road or any public-use road or path. Some are restricted as to mode of use.
