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.

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.

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!”‘

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.

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).

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.