Later courts went against this
Overruled in part by Burrows v. City of Keene, 121 N.H. 590 (1981)
115 N.H. 124, 130, 336 A.2d 239, 243 (1975), overruled in part, 121 N.H. 590, 601, 432 A.2d 15, 21 (1981).
Limited by Claridge v. New Hampshire Wetlands Board, 125 N.H. 745 (1984)
The language in Burrows v. City of Keene, 121 N.H. at 601, 432 A.2d at 21, stating that “to the extent Sibson is inconsistent with our present holding, it is overruled” should be read merely to limit and not to overrule it entirely.
The opinion
Grimes, J.,
concurring in the result in part and dissenting in part:
I am in complete sympathy with those who wish to preserve the marshes. However, I continue to agree with Judge Smith when over one hundred years ago he said that great public benefit “may afford an excellent reason for taking the plaintiff’s land in a constitutional manner but not for taking it without compensation.” Eaton v. B.C. & M. R.R., 51 N.H. 504, 518 (1872); Ferguson v. Keene, 108 N.H. 409, 415 , 238 A.2d 1, 5 (1968) (dissenting opinion).
■ Because I fear this decision destroys private ownership in all undeveloped property in this State, I can concur in the result only as to that part of the marsh which lies below the mean high water mark of the Atlantic Ocean. I can concur to this extent because the State has an interest in the public waters which would be reduced by the fill.
The master has found that the unfilled marsh is of practically no pecuniary value to the plaintiffs. As to the marsh above mean high water, the effect of the State’s action is to compel the plaintiff to devote his land to a public purpose without compensa *131 tion by denying him the right to put it to any other reasonably profitable use.
This constitutes a taking. Surry v. Starkey, 115 N.H. 31 , 332 A.2d 172 (1975); Eaton v. B.C. & M. R.R., 51 N.H. 504 (1872); State v. Johnson, 265 A.2d 711 (Maine 1970). The effect of the principle adopted in today’s decision is to undermine a great constitutional safeguard.