Yacht Club Claims: We Own The Water!

Last summer, a Westport homeowner walked out of her Saugatuck Shores home. She strolled through her back yard, to the edge of the water. She slipped into her kayak, and paddled a few yards.

Suddenly, she was stopped. A woman from Saugatuck Harbor Yacht Club, across the way, yelled that she was trespassing.

“We own the water!” the SHYC representative said. “We reserve it for our members!”

Stunned, the Westport resident retreated.

She’s not alone. A neighbor was reprimanded, the same way.

The Saugatuck Shores homeowner’s back yard.

Commodore Sandy Heller and Vice Commodore Roger Schwanhausser followed up with a letter. They sent it “as neighbors,” with “a significant safety concern for both you and our members.”

The letter continued:

We have received member reports, and have pictures, of kayaks stored on your property being launched by individuals crossing over our property line to access the water and into our Club basin.

This has created navigational hazards and safety to concerns to our members as they transit in and out of our basin. Recently, one of our members nearly collided with a non-member kayaker who was unable or unwilling to yield navigational right of way.

Kayaks, ready — but forbidden — to launch, near Saugatuck Harbor Yacht Club.

But safety was not the commodores’ only concern.

Further, as you may not know, the Saugatuck Harbor basin is private property. Our Club owns the land under the water, and per Connecticut law, also owns the water above that land up to the mean high tide line.

Any unapproved access to our basin is, therefore, trespass on our property and is not allowed by Connecticut law.

These facts are documented in our deeds and property records, which go back almost 60 years, and are recorded and memorialized at Town Hall in Westport.

We, at Saugatuck Harbor Yacht Club, have always strived to maintain good relationships with all our neighbors. We are fully aware of our presence in, what is largely, a residential neighborhood.

We want to be respectful of our neighbors’ privacy, their safety, and their property rights. We would expect the same of you, and request that you refrain from any further access to our basin in the future.

But is it really “their” basin?

The homeowner asked someone in Town Hall’s Conservation office. “She laughed,” the woman says. “She said, ‘No one owns the water!”‘

Kayakers and boaters — not including the Westporter in this story — enjoying the water near Saugatuck Harbor Yacht Club.

The Westporter — who notes that “people come in with kayaks and paddleboards all the time from the other side of the inlet” — did what any reasonable person would do. She Googled.

She found Connecticut’s Department of Energy and Environmental Protection’s “Living on the Shore” page. It says:

While much of the Connecticut shore is privately owned, the coastal tidelands actually belong to all the people—not just in terms of our environmental and cultural heritage, but in a specific legal sense as well.

Under the common law public trust doctrine, a body of law dating back to Roman times, coastal states (as sovereigns) hold the submerged lands and waters waterward of the mean high water line in trust for the public.

The general public may freely use these intertidal and subtidal lands and waters, whether they are beach, rocky shore, or open water, for traditional public trust uses such as fishing, ­shellfishing, boating, sunbathing, or simply walking along the beach.

In Connecticut, a line of state Supreme Court cases dating back to the ­earliest days of the republic confirms that in virtually every case private ­property ends at mean high water (the shore elevation, which is the ­average of all high tides) and that the state holds title as trustee to the lands waterward of mean high water, subject to the private rights of littoral access, that is, access to navigable waters.

Public Trust sketch

What is the boundary of the public trust area?

The public trust area includes submerged lands and waters waterward of mean high water in tidal, coastal, or navigable waters of the state of Connecticut. On the ground, the mean high water boundary of the ­public trust area can often be determined by a prominent wrack line, debris line, or water mark. In general, if an area is regularly wet by the tides, you are probably safe to assume that it is in the public trust. The public trust area is also sometimes referred to as tidelands and is defined as ”public beach“ by the Connecticut Coastal Management Act, C.G.S. 22a-93(6). While the public trust area extends up navigable rivers, it does not extend inland to areas landward of the mean high water line.

What rights does the public have within the public trust area?

According to the Connecticut courts, public rights to the shore include the
following:

  • The public has the right to fish and shellfish over submerged lands. Peck v. Lockwood, 5 Day 22 (1811);
  • The public has the right to pass and repass in navigable rivers. Adams v. Pease, 2 Conn 481 (1818);
  • The public may gather seaweed between ordinary high water and low water. Chapman v. Kimball, 9 Day 38 (1831);
  • “Public rights include fishing, boating, hunting, bathing, taking shellfish, gathering seaweed, cutting sedge, and of passing and repassing ….” Orange v. Resnick, 94 Conn 573 (1920);
  • “It is settled in Connecticut that the public has the right to boat, hunt, and fish on the navigable waters of the state.” State v. Brennan, 3 Conn Cir. 413 (1965).

Saugatuck Harbor Yacht Club

She found another page: “Access to Your Boat: Your Littoral Rights.”

Although shoreline residents must share the public trust area with their fellow citizens, every coastal property owner enjoys unique legal rights by virtue of owning waterfront land. Just as an upland property owner has the right to access a public road, a coastal property owner has an exclusive right to access navigable water from his or her property.

This coastal right of access is known as a “littoral” or “riparian” right. Technically, “riparian” applies to rivers while “littoral” applies to coastal waters, but the terms are often used interchangeably.

The littoral right of access provides the property owner reasonable access to the water from his or her property.

Reasonable access can be achieved by launching a boat directly from the shore, by use of a mooring, or by constructing a dock suitable for the site conditions and properly permitted by  DEEP and the U.S. Army Corps of Engineers. Littoral access does not imply a right to build whatever size dock or wharf a property owner wishes, nor does it mean that a littoral owner may routinely exclude boats or moorings from the waters in front of his or her property.

In terms of access, navigable waters are equivalent to a public road, and a dock serves the same purpose as a private driveway. A littoral landowner may not exclude the public from lawful uses of navigable water, just as an upland owner cannot exclude the public from driving or walking on the street in front of his or her house. However, a duly authorized dock or other littoral structure is private property, and no one can legally interfere with the exercise of this right of access, just as individuals cannot use or block someone’s driveway.

Seems like the Saugatuck Harbor Yacht Club neighbor “shore” has a good case.

PS: Someone from SHYC told the Saugatuck Shores resident, “you can join our club.”

“I don’t have a boat!” she replied.

30 responses to “Yacht Club Claims: We Own The Water!

  1. So, Heller and Swanhausser are full of shit, should be told so at every opportunity and further lambasted for even THINKING of telling another person that they, themselves, “own the water.” What hubris, what immoral snobbery could lead two people to be unashamedly disgusting.

  2. Didn’t google hard enough.

    https://casetext.com/case/saugatuck-harb-v-westport-no-fst-cv-06-4009707-s-nov

    3. The subject property consists of five parcels aggregating to 14.68 acres of land, 10 acres of which are the land submerged beneath the body of water known as the Duck Pond, which serves at the plaintiff’s yacht basin. (Plaintiff’s Exh. 2, p. 31, Appraisal Report of George W. Sherwood, IV; Defendant’s Exh. L, p. 33, Appraisal Report of Christopher Kerin.)

    4. The subject property is not waterfront property in the classic sense, as it is not on the waterfront of Long Island Sound. A boater must navigate from the Duck Pond boat basin through a dredged channel, past the Cedar Point Yacht Club, past the town mooring fields and the town marina in order to reach the open waters of Long Island Sound. (Tr. Vol. I, p. 25.)

    • Paragraph 4 doesn’t say what you think it says, even if “waterfront property” was a title concept. The same statement is true of everything along the Saugatuck River.

      I’m not even sure the statement makes any sense at all, since the same would be true of the Connecticut River, the Thames, etc.

  3. The SHYC purchase the land before it was dug out I was a young kid and remember Kowalski bros creating the yacht club yes one has rights to the water but you can’t cross a private property to gain access. Most don’t know homes around the yacht club was created by dumping all the material from the yacht excavation this go back 50 plus years . Bob Giunta Harbormaster

  4. These waterfront spats between the wealthy are always quite amusing for the rest of us living on landlocked properties. Regardless of the legal merits of their assertions, civilian boat owners who claim British military titles like “Commodore” and “Vice Commodore” are setting themselves up for ridicule!

  5. Yeah, that, too, Peter. Thanks. These wannabees are no more Commodores or Vice anythings than is the fisherman in a row boat Ahab.

  6. Matthew Mandell

    I used to do a lot of whitewater rafting. Many of these rivers ran through paper company land. While we could navigate the river freely, we could not set foot on the shore, unless it was an emergecy. Often the company had a dam that generated its power. Deals were worked out to open the dam for an hour to create the bubble of water for rafting. Others were spring melt runoff. o

    Regardless of land/ownership the yacht club should act more like the paper companies and allow use.

  7. If the Yacht Club owns the land under the Duck Pond then do the other homeowners around the Duck Pond own waterfront property or do the own landlocked property with water views?? It used to be that property taxes were bumped up by ~10% for waterfront property. If those properties are paying a premium for waterfront property they may have a case for a reduction in their taxes. It’s worth asking the question.

  8. Will “The Commodore” and “Vice Commodore” be writing follow up letters of retraction and apology to those they have wrongly offended. If not they should be required to.

    • Bill Strittmatter

      Hmmmm….now that it appears that they are correct, will you apologize and retract your demand that they write a letter? Should Mr. Katz “be required” to similarly write letters of apology?

      • Well, I see your point, Bill; but I’m still sideways about their tone and apparent attitude toward their neighbors….ancient laws not withstanding.
        I tend to think neighborliness may mean more in the long run than a law, the breach of which, hurts no one and could benefit a few.

        • Bill Strittmatter

          As someone else commented on the other post, assuming you have a pool, could I come over for a swim whenever I felt like it? Or bring a few friends over to play wiffle ball in your yard (assuming it’s cleared) or capture the flag (assuming it’s not)? I’m guessing not, if for no other reason than potential liability putting aside any property rights you might inadvertently convey.

          For what it is worth, I wouldn’t accuse you of lack of neighborliness if you said no.

          • Thanks for letting me slide on saying no to the wiffle ball (skid marks in lawn), though I have no pool I would ask you to find MORE neighborly folks than I for the wiffle ball thing. 🙂

    • Richard K. Vogel

      Welllllll, in light of the fact that they DO own the water I guess no apology is needed…So I take back my earlier comment. That said, They may want to drop the “Commodore” titles anyway.

  9. Tom Duquette, SHS '75

    Wow, that sure was some “neighborly” letter she received from the Commodore and Vice Commodore; no doubt their concerns for her safety were reassuring. Next time Thurston Howell III sails his yacht into the basin he won’t have to dodge these hazardous kayaks.

  10. John D McCarthy

    “Hey, you scratched my anchor.”

    • Interesting case. Although I’m no lawyer, I’ve learned a lot about the Public Trust Doctrine through my work with the Montana Wildlife Federation, as we often challenge attempts by private landowners to block public access to public lands and navigable waters.

      In one case, musician Huey Lewis purchased property along the Bitterroot River. He attempted to block public access to what some considered a natural channel to the river, but he claimed it was a man-made slough, or irrigation ditch, made for irrigation purposes, and therefore private. The state eventually ruled it was public, in part because it was influenced by natural currents, seasonal rises and falls of the river, was “navigable” water, and wildlife species such as wild trout, managed as a Public Trust, had free access in and out of the channel.

      In this Westport case, although it was once a private pond, it is now connected to and influenced by natural currents and tides, and “public resources” such as striped bass are free to move in and out. I wonder if that changed it from private to Public Trust, since there is now low and high water marks from the tides?

      I hope it goes to court.

  11. But she “shore” doesn’t have the right to trespass on private property to get to the water

    • “So it appears that yes, Saugatuck Harbor does indeed own both the land underneath its basin, and the water itself.” I guess this quote from Dan’s other post, is the final word. But be careful what you wish for. That would mean Saugatuck Harbor is legally responsible, and financially responsible, for anything and everything that could occur.

  12. What about access to the Lees Dam area, and the river above and below the falls? I grew up getting to the river anytime. Now private houses are all long it. Does the public have rights to river access
    now?

    • The adjoining property there is the Westport Public Schools District
      Facilities Office at 1 Canal. Maybe you can load in from there?

    • I’m pretty sure the YMCA owns all the property around Lee’s Pond up to like a foot or something above the water line. Neighbors put kayaks in all the time but I don’t think the YMCA cares.

  13. Legalities aside SHYC should rein in their members.
    They are aggravating an unfortunate but not uncommon antipathy towards
    private clubs. If there is concern about their liability they
    should be forthright enough to post signs. I am sure a
    photograph would quickly appear on 06880.
    Brian

  14. Paragraph 4 is absurd and an opinion, opinion in an old but good try for legal exclusion from public, navigable water. It states that “waterfront”property must face Long Island Sound! Even if this was approved by some fluke, State law overrides and has held that creeks as tiny as the Norwalk River in Wilton or the larger Housatonic in Kent are navigable, basically anything you can float a canoe in. Scott’s Cove in Darien is an example of an inlet that is navigable and valuable public property below the mean high tide line. If you can access the shore legally, all the water is yours. Individuals and organizations have been trying to appropriate this public property for ages and we must be vigilant to stop every attempted encroachment. Like I yelled back at the teenager yelling something incomprehensible at my son and myself when we were wading about 100 yards off the Mill Pond, “call the police”. No police, no further yelling at us, silence.

  15. This has got to be the most absurd thing I’ve heard.

    “We own the water!” Good luck with that pal. This is some real privledge right here. Imagine, this is what upsets you in your life. People in YOUR water!

  16. Jonathan Ewert

    I just bought the air rights over the Yacht Club water. The Goodyear blimp is warming up. Guess what the message will read?

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