Tidal Title and the Boundaries of the Bay: The Case of the Submerged High Water Mark

Abstract

There is no particular policy reason why the same line should be used for both the upland boundary of the jus publicum and the seaward boundary of parcels bounded by the sea. In interpreting the language used in grants of private interests, the ostensible object of the inquiry is to ascertain the parties (particularly the grantor\u27s) intent. Subject only to limitations on the grantor\u27s estate or power to convey, it is that intention which controls the extent of his transfer. On the other hand, in setting the upland boundaries of lands subject to the jus publicum, the courts are essentially making a policy determination, i.e., which lands are subject to what mode of use-allocation, a question of law in which private intentions play no role. Nonetheless, for reasons which seem largely historical, the rule of construction for grants extending to the sea has been held to result in the same boundary line as the line which, by law, defines the upland limits of the jus publicum. In the case of both, the line is the high water line. This article explores judicial resolutions in New York to the question: Where is the high water line