Tuesday, February 10, 2026

Land, Title and Ownership in America at 250 series

In its earliest days, the Massachusetts Bay Colony operated under English common law in most matters of property and civil governance. When it came to coastal land, private ownership generally extended only to the high-water mark, while the land below (the foreshore) remained the property of the Crown. Certain public rights, like fishing or navigation, could be granted and exercised there, but ownership stayed with the sovereign. That division of upland and foreshore shaped nearly every early dispute over waterfront property and would become the point of departure for a uniquely colonial approach.

In 1641, Massachusetts adopted the Body of Liberties, its first comprehensive codification of rights and responsibilities. The document is often remembered for broad civil protections, but for title and settlement professionals, it’s remarkable for what it laid out about property. It established rules for inheritance, limits on arbitrary takings, recognition of transfers and conveyances, and the principle that ownership could be conditioned by law. In other words, the colony was sketching the foundations of a property system that balanced private rights with communal interests. It’s a system that would shape disputes, conveyances, and title examination for centuries.

The Body of Liberties included an early ordinance addressing shoreline ownership. While it preserved public rights of fishing, fowling, and navigation along the foreshore, it still followed the English pattern: private ownership stopped at the high-water mark. The shift toward a distinctly colonial rule came a few years later.

In 1648, the colonial government ordered into print The Book of the General Laws and Libertyes, which refined the earlier ordinance. The revised Colonial Ordinance extended private seashore ownership down to the low-water mark, up to a limit of one hundred rods from high water. Public rights for fishing, fowling, and navigation were preserved, but ownership of the foreshore itself was now vested in the upland owner. Massachusetts had, in effect, abrogated the English common law rule it had inherited, tailoring property rights to the practical needs of a growing maritime economy.

Surprisingly, the Colonial Ordinance continues to operate as common law in both Massachusetts and Maine. Courts in both states have consistently upheld the low-water mark boundary, giving riparian and littoral owners title to the foreshore while limiting public access to the rights enumerated in the 17th century. What began as a local, practical adjustment now shapes property ownership in ways that can confound anyone familiar with coastal rules elsewhere.

Tell someone from California, for example, that the upland owner “owns the beach,” and they’ll usually reply in disbelief. In Massachusetts, that rule isn’t a quirk; it’s centuries of legal history, layered carefully over the English common law that the colony inherited, then modified to meet its own priorities.

Hustling along at today’s pace, we tend to hurry up in order to finish up tomorrow’s deal.  It’s easy to forget how much of our property law today started to take shape centuries ago. The roots of American property law are deep, and the unique twists, turns, and carveouts along the way are endlessly fascinating.

We won’t cover them all this year, but each story adds another layer to the history of land, ownership, and laws in this country.  Thanks for joining us along the way.

With special thanks to reader Ruth Dilligham of Massachusetts, for ensuring we didn’t miss this important chapter in early colonial property law.  

If you’d like to submit a guest blog about a unique piece of real estate law or a specific property with American historical significance, or if you simply want to suggest another can’t-miss stop in our nation’s property laws and story – my email address is linked below.  I’d love to see your thoughts.

Until Next Time,

Mary Schuster
Chief Knowledge Officer
October Research, LLC