Case History

If the recent fight over access to Truck Beach seems somehow a legal battle uniquely of this place and time, consider a case exactly 200 years old, and more than 3,000 miles away.

Blundell v. Catterall, to be specific, in which Mr. Catterall was sued, in 1821, for setting up a stretch of sand on the River Mersey “between the high-water mark and the low-water mark” — a phrase that should echo in local ears — as a public bathing beach for people (and their carriages). The Lord of the Manor of Great Crosby claimed ownership of the beach, and asked the English courts for an injunction against the public’s use of the beach.

Josh Eagle, a professor at the University of South Carolina School of Law and the director of the Coastal Law Field Lab based there, mentioned the case in passing, in an article published in 2018 in the Washington Law Review, to show just how far back such disputes can be traced. His article’s point is that the public’s right to access the beaches is “based on rote application of eight centuries of common law to the reality that sandy beaches are always in the process of changing.” In essence, the public cannot be trespassing, even on a dry beach, because its boundaries would be so fluid as to be unenforceable.

At its heart, such a ruling would protect the region’s centuries-old laws supporting right of the “freeholders and commonality” to access the beaches. But as the recent Truck Beach ruling in East Hampton Town shows, modern courts are lapping away at those protections, eroding them to their most basic. In the end, there might be nothing left.

The dispute at the 4,000-foot-long Amagansett beach is complicated, made more so by the fact that the battle is about driving and parking on the beach (there is no public parking nearby to allow the public access). The state’s Appellate Division is closely examining the town’s actions in the midst of the court battle and has ordered no vehicle traffic whatsoever in the meantime — and, in fact, no public access at all, unless someone is fishing.

That’s rooted in the original language protecting public access, at the time for fishing and seaweed gathering. Upon that modest foundation an entire resort community was built, claiming the beaches on behalf of the public not just for bathing but also, in some limited cases, for driving.

A foundation built on sand is risky, though. In the Truck Beach case, the legal winds seem to be stiffly favoring the property owners and interpreting the original access rules as narrowly as possible — focusing on the 17th century interpretations of why the public might want to be on the beach, and leaving it there and there alone. In that way, the Truck Beach case could both further erode beach access rights in the region — and be a canary in the coal mine for beach access proponents, suggesting that relying on legal precedence might not suffice.

And yet: That 1821 court ruled that while there was no “common-law right for all the King’s subjects to bathe in the sea and to pass over the seashore for that purpose,” the court sided with the defendant, deciding that “where no mischief or injury is likely to arise from the enjoyment or exercise of such a public right,” it would be an “unnecessary and injurious restraint upon the subjects” to limit their access to the beach.

A voice of reason from 200 years and an ocean away, faint but still, perhaps, offering sound advice for a reasonable resolution.