What Is a Public Right-of-Way to the Shore?

A public right-of-way to the shore is a piece of land over which the public has the right to pass on foot, or, if appropriate, by vehicle, in order to access the tidal waters of Rhode Island.

How Is a Public Right-of-Way Established in Rhode Island? Generally, there are six legal methods of establishing a public rightof- way in Rhode Island:

1. Roadways that have been laid out, recorded, opened, and maintained by a city or town council. These are commonly known as city- or townaccepted streets. To become a public right-of-way, the city or town must follow the statutory method for laying out public highways. Many of the public rights-of-way in Rhode Island’s coastal communities fall into this category.
2. Highways by grant or use (R.I.G.L. Chapter 24-2). This statute provides that all lands that have been quietly, peaceably, and actually used, improved, and considered as public highways for 20 years by a city or town council shall be taken and considered to be public highways as if the lands had been regularly laid out, recorded, and opened by the city or town council. In order for this statute to apply, a city or town must give notice of its intentions to declare the land as a public highway and must prepare and record a plat of the highway in the land evidence records of the city or town where the land lies.
3. Ways that have been approved by recordation of a subdivision plat. Rhode Island’s subdivision statute authorizes cities and towns to control the subdivision of land within their borders (R.I.G.L. Chapter 45-23). A subdivision, of necessity, requires roads and ways. Sometimes, a subdivision contains roads or ways that lead to the state’s tidal waters. After a city or town planning commission has given notice of the proposed subdivision plat, held public hearing(s), and approved the subdivision plat, and that plat has been recorded in the city’s or town’s land evidence records, the roads or ways are available for public use.
4. HTML Ways that have been offered to the public by dedication and accepted by public use or by official city or town action (implied dedication). This is a common law method of establishing public rights-of-way. In order for there to be a common law dedication, there must be a clear intent by the owner to donate the land and a clear acceptance of that land by the public. Once a parcel of land has been dedicated, the transfer is irrevocable. The landowner’s intent to dedicate the land can be evidenced by the recordation of a plat map showing the right-of-way as public or by language contained in a deed(s). Many public rights-ofway to Rhode Island’s shoreline have been established by dedication.
5. Highways that have been used by the public since time immemorial. This is an old common law concept. The law provides that to create a public right-of-way by use, the evidence must show that the use has been general, uninterrupted, continuous, and adverse so warrant the inference that the land had been laid out, appropriated, or dedicated by the landowner to the public. An occasional use of land by a few persons living in the area or by abutters to the property without any claim of right is insufficient to establish a public right-of-way.
6. Ways that have been obtained by the public’s adverse use. Privately owned paths to the shore that have been used for a period of 10 consecutive years by the public may become rights-of-way, but only if the requirements of the R.I. General Laws are met (R.I.G.L. Chapter 34-7). This method is commonly known as an easement by prescription. An easement is a right to use the land of another in a specified manner. In order to create a public right-ofway by this method, the public has the burden of establishing actual, open, notorious, hostile, and continuous use of a way under a claim of right for 10 years. In addition, the law specifically does not allow a public right-of-way to be established by footpaths; the pathway has to have been used by carriages or vehicles.

CRMC has the authority to designate public rights-of-way to the tidal waters of the state (R.I.G.L. 46-23.6). A CRMC public right-ofway designation clarifies the status of a public right-of-way and provides shore goers with clear and legally defined pathways to the shore. The designation of public rights-of-way also ensures the preservation and protection of these access sites for subsequent generations of Rhode Islanders. CRMC carries on a continuous process of discovery and designation of rights-of-way using a standing right-of-way subcommittee. Because of administrative and legal requirements, the right-of-way designation process is complex and requires a substantial investment of time and resources.

Therefore, CRMC typically takes a town-by-town approach to identify and investigate potential public rights-of-way. The CRMC designation process begins with a factfinding investigation and a title search conducted by CRMC’s or the town’s legal counsel. This investigation is usually at the request of a coastal city or town. In many cases, CRMC’s efforts are supplemented with research by the various municipal departments. During the fact-finding process, evidence pertaining to the existence of a right-of-way is gathered from land evidence records, deeds, tax assessor records, public works records, town documents, and court records. A visual inspection of potential sites is also made to gather evidence pertaining to the exercise of dominion over a potential right-of-way including maintenance, repair, and upkeep. All evidence is reviewed for accuracy and relevance by the CRMC right-of-way subcommittee and presented at a public hearing in the town or city involved. If, based on the evidence gathered and public testimony received, the subcommittee determines with reasonable probability that a public right-of-way exists, a recommendation is made to the full council to designate the site. If the full council approves the rightof- way subcommittee’s recommendation, then a final written decision is rendered containing factual findings and conclusions of law. If there is not an appeal or after an appeal has been resolved in favor of CRMC, then the decision is recorded in the land evidence records and filed with the Secretary of State’s Office.

What a CRMCDesignated Right-of- Way Means

Once a public right-of-way has been designated, the public possesses a passageway to gain access to the tidal waters of the state. Like an easement, a public right-of-way relates to the public’s use, not the public’s ownership. In other words, the public has the right to pass over and use the land in a manner consistent with the condition of the site no matter who owns it. When CRMC designates a public right-of-way, it does not determine the ownership of the site. CRMC is prohibited from addressing questions of ownership. Determining the ownership of a public right-of-way can be complicated and often requires court action. Frequently, if a site has been actively used by the public, the public may in fact own the site. CRMC does not create “new” public rights-of-way; it merely recognizes and places an official designation on previously existing conditions. It is the landowner and/ or a city or town that creates a public right-of-way; CRMC merely identifies these sites. If CRMC has not designated a site, it does not mean that a public right-of-way does not exist. In fact, a public right-of-way may exist, but CRMC may not have enough information to legally designate it or CRMC may not have investigated the site.

Can a Public Right-of- Way Be Blocked or Abandoned?

Once a site has been designated as a public right-of-way, CRMC prohibits any activities that would obstruct the public’s use of the site and pursues legal actions against individuals that block or impede the public’s access at designated rights-of-way. Once a public right-of-way has been designated by CRMC, it cannot be abandoned by a city or town without prior approval of CRMC (R.I.G.L.46-23-6.2). In addition, a public right-of-way that has not been designated by CRMC, but is nevertheless a public way, cannot be abandoned without formal abandonment proceedings. Moreover, highways that have been designated public by the actions of a landowner or acquired by prescription cannot be lost due to non-use and the public cannot lose its rights due to adverse possession.