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What Happens to Your Coastal Easement When the Sea Rises

Sea rise can shrink the size of oceanfront property as the oceanfront boundary creeps inland.  It can similarly shrink any easement over the property.  Depending on where the easement is and how it is defined, sea rise can cause the easement to move inland as the water’s edge moves inland, cause its use to become more limited, or cause it to disappear altogether.

  1. An easement in a fixed and defined location may shrink or be eliminated, as the easement area submerges with the sea’s rise.

An easement across oceanfront property that is described in its conveyance deed as being in a fixed location by reference to measurements, direction, and landmarks (including stone walls, buildings, trees, and abutting property, all of which are called “monuments”), does not relocate with the sea’s rise.  Rather, the easement will slowly shrink and be eliminated as the easement area becomes submerged below the low tide line and ownership of the submerged land reverts to the State. (See Sea Rise Blog: 10 Legal Points for Maine Waterfront Owners on Sea Rise Erosion of Boundaries, and Protective Seawalls.)  Unless otherwise stated in the easement deed, the property owner has no obligation to convey a replacement easement elsewhere on the property.

  1. An easement that is described in its deed as running along the water may migrate inland as the low tide line migrates inland with the sea’s rise.

An easement on oceanfront property that is not in a fixed location but is described in its conveyance deed as  running along the water will continue to exist on the property as the sea rises, but may move inland as the low tide line moves inland. As discussed below, however, the easement’s uses may become more limited so as not to unreasonably conflict with the upland property owner’s existing inland uses and structures.

  1. An easement along the water may migrate inland as the intertidal zone migrates inland with the sea’s rise.

The intertidal zone is the oceanfront area between low and high tide. As the intertidal zone migrates inland from the sea’s rise, intertidal easements may migrate as well, depending on the terms of the easement. Intertidal easement migration occurs with both private and public easements, including the easement granted by the 1640’s Colonial Ordinance to the public to “fish, fowl, and navigate” in Maine’s intertidal zone.

  1. If an easement migrates inland with the sea’s rise, Maine law may limit the scope of its use to minimize conflict with the upland owner’s existing uses, or may limit the landowner’s uses to accommodate the migrated easement.

Easements that move inland with the sea’s rise can become problematic for both the oceanfront property owner and the easement holder. If the landowner’s upland home and other structures are built near the water, the rising sea could cause the intertidal area, and any intertidal easement, to migrate close to the home and its private yard area (called “curtilage”). The property owner may claim that the easement holders’ use of the migrated easement unreasonably interferes with his own uses, and should be curtailed.

Conversely, if the property owner’s upland structures, fences, stone walls or vegetation interfere with the easement holders’ exercise of their rights in the migrated location, they may claim that such landowner uses interfere with the full exercise of their easement rights, and should be  removed, modified, or relocated.

The outcome of any conflicts between landowners and easement holders will depend on the terms of the easement and the facts of the case.

  1. The Maine courts apply established legal standards in interpreting and balancing landowner’s and easement holder’s correlative rights:
  • The scope of an easement must be consistent with the intentions of the original easement grantor and grantee.
  • The easement holder’s use of the easement must be reasonable and not unduly burden the property.
  • Unless the easement deed says otherwise, the property owner may use the easement area so long as the owner’s use does not materially impair or unreasonably interfere with, the easement holder’s rights.
  • When unforeseen circumstances affect an easement area or its use, as with climate change sea rise, the property owner’s and easement holder’s correlative rights are to be reasonably balanced.
  • In applying the reasonableness standard to changing external circumstances, the Maine courts may, in effect, modify the scope of an easement. The Maine courts will often reinterpret the scope of easements in light of changing external circumstances, both to broaden and to narrow the scope of use. Thus, a 1915 right of way easement for use to drive cattle has been interpreted to extend to motor vehicles, and a pre-electricity right of way has been interpreted to extend to electric utilities.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                            The scope of use of an easement may also be narrowed in light of changing circumstances.  In the 19th century, the public’s easement rights to “fish, fowl and navigate” over the intertidal zone under the 1640’s Colonial Ordinance was interpreted by the Maine courts to include a right to travel on the shore by horse and to drive cattle. As roads were constructed and the public switched to motor vehicle travel, however, the courts reinterpreted the public’s easement to exclude travel by horse (or motor vehicle).  Likewise, the public’s early right to drive cattle in the intertidal zone, when it was a necessity, was later reinterpreted to exclude such use. (On the other hand, the Maine Law Court recently expanded the scope of the public intertidal easement rights to include the new 20th century use of scuba-diving.)

If you would like assistance in evaluating or defending your shoreland property or easement rights, we would be happy to provide it.  Just contact us by phone at 207-774-2635, or send an email Peggy McGehee or Julie Ray.