The Public Trust Doctrine and Private Property: The Accommodation Principle

The public trust doctrine is often accused of undermining property rights, when in fact the doctrine is actually a property concept, and a venerable one. Instead of threatening property rights, the doctrine functions to harmonize public and private rights in important resources, mostly those close to the land-water edge. This article demonstrates how this reconciliation takes place by examining case law recognizing the lineal and conceptual divisions by which the doctrine separates public and private rights. It also considers other ways in which the public trust doctrine balances public and private rights, such as ratifying small privatizations of public resources, transforming fee simple absolutes into defeasible fees, and recognizing pubic easements on private land titles.

The article concludes that the public trust doctrine, if properly understood, can perform the important function helping to modernize property law.