Josh Eagle (University of South Carolina School of Law) has posted Beaches as Ports: The Law of Ways and the Beachfront Owner’s Right to Exclude on SSRN. Here is the abstract:
From its birth in the twelfth century, the common law has treated property used in connection with transportation differently from other kinds of property. The “law of ways,” as it is sometimes called, applies not only to routes such as roads, rivers, canals, and railways, but also to connectors such as bridges, ports and ferries, and to travel-linked facilities such as motels and grain elevators. The rationale behind the law of ways is that an open-access transportation network generates a wide range of social and economic benefits.
In modern America, the law of ways is comprised of a variety of common law and statutory rulesets including the common carrier, innkeepers’, and public trust doctrines. As a general matter, the law of ways requires each owner of a route, connector, or travel-linked facility to allow all members of the public equal access to use of the property. Where an owner has invested in creating or improving the property, she may collect fees for use, but those fees must be reasonable so as not to hinder trade or travel. Until about 150 years ago, beaches—gently sloping accumulations of sediment located on the fringes of oceans, estuaries, and rivers—functioned as essential connectors within transportation networks in England and America. People used beaches as ports, that is, as places where shippers could load and unload cargo, and where individuals could meet to trade. As ports, beaches were covered by the law of ways and thus open for public use.
This Article asks whether the law of ways continues to inhere in beachfront property as what the Supreme Court has called a “longstanding background restriction” on private rights. In recent decades, beachfront landowners have stepped up their efforts to effectively privatize public beaches by blocking access to them. The public access guarantees found in the law of ways would significantly slow the trend of beach privatization.
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Readers interested in this paper may also be interested in a new Lexicon entry: Legal Theory Lexicon 113: Property Theory.
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