In 2008, William McGarvey and Mary Klientop filed a declaratory judgment seeking a determination that their neighbor, Jonathan Bird, had no right to cross their intertidal land to reach the ocean to scuba dive. McGarvey and Kleintop own property that borders Passamaquoddy Bay in the Town of Eastport. As owners of oceanfront property in Maine, their title extends through the intertidal zone to low water mark in fee simple. The intertidal land they own also stretches in front of Bird’s property, bordering his property just below the high water mark. This configuration creates a strip that separates Jonathon Bird’s property from the bay, allowing him access to the ocean from his property only if he crosses over McGarvey’s intertidal land. The Washington County Superior Court granted Bird’s motion for summary judgment, declaring that Bird had engaged in a permitted use of privately owned intertidal land. In doing so, the court held that scuba diving was within the scope of the public’s right to use the intertidal land for navigation. McGarvey appealed to the Maine Supreme Judicial Court, sitting as the Law Court, which unanimously affirmed the lower court’s opinion on this point. The Court however, was sharply divided (3-3) in its reasoning.

First Page