## Facts

- The New Hampshire House of Representatives requested an advisory opinion on the constitutionality of proposed Senate Bill 636 (as amended) concerning public recreational use of coastal beaches.
- The proposal stated that New Hampshire holds in trust shorelands subject to the ebb and flow of the tide and recited that the public had long used most coastal beaches, including upland “dry sand” areas, for more than twenty years.
- The bill would “recognize and confirm” a public easement for recreational use on coastal beaches where the public traditionally had access, including dry-sand areas landward of intertidal lands.
- In disputes about access within defined coastal beach areas, the bill would create a presumption that a public easement exists on the disputed land.
- The House asked whether these provisions would effect a taking requiring just compensation under Part I, Article 12 of the New Hampshire Constitution and the Fifth and Fourteenth Amendments to the U.S. Constitution.

## Issues

1. Whether legislation that recognizes or confirms a public recreational easement over privately owned dry-sand beach areas, beyond established public trust limits, constitutes a taking requiring just compensation.
2. Whether a statutory presumption that a public easement exists on disputed coastal beach land impermissibly alters property rights and takings standards by displacing case-specific proof required for prescriptive easements.

## Decision

- The justices advised that the bill, as described, would be unconstitutional to the extent it imposed or confirmed public recreational easements over privately owned dry-sand areas without just compensation.
- The justices concluded the legislature could not expand shoreline public rights by recharacterizing private dry-sand property as subject to a public easement.
- The justices advised that generalized legislative findings of long public use could not substitute for the elements and evidentiary burdens required to establish prescriptive easements in particular disputes.
- The justices indicated that shifting outcomes through broad presumptions of easements on private land would impair vested property rights, including the right to exclude.

## Legal Principles

- A compelled public access right over private land burdens the owner’s right to exclude and constitutes an appropriation of a property interest that requires just compensation unless it reflects a limitation already inherent in title.
- The public trust applies to shorelands subject to tidal ebb and flow for traditional public uses; it does not automatically extend landward to privately owned dry-sand areas for broad recreational use.
- Prescriptive easements require proof of adverse, continuous, uninterrupted, and notorious use for at least twenty years, determined on specific facts; legislation may not conclusively establish those elements for broad categories of property.
- A rebuttable inference related to long use cannot be transformed into a statutory presumption that effectively creates an easement based solely on a parcel’s location within a defined “coastal beach” area.
- Legislative declarations cannot create new public property rights in private land by labeling them as “recognition” of existing rights; if the measure creates the right, it effects a taking and triggers compensation requirements.

## Conclusion

The justices advised that the proposed bill would violate state and federal takings protections insofar as it sought to establish public recreational easements over privately owned dry-sand beach areas, or to presume such easements in disputes, without preserving established property-law requirements and without providing just compensation.


Opinion of the Justices (Public Use of Coastal Beaches), 139 N.H. 82, 649 A.2d 604 (N.H. 1994)