Water Rights

Texas beachfront property rights after hurricanes

In general, when property borders change because of gradual accretion or erosion along rivers or oceans, then owners gain or lose land because of those changes.  If land is gradually added to an owner’s land by gradual build-up of sand or silt, then the owner’s property increases to that extent; the reverse is also true. But if the border changes suddenly (“avulsion”) then the borders do not change. The courts have generally applied these principles to beachfront property to determine the border between the private property rights of beachfront owners and the land owned by the...

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Regulatory taking of water rights

In a prior post, I explained the holding of a Texas Supreme Court opinion that held that regulation of water rights might constitute a regulatory taking. The text of that post is at the end of this one. A subsequent case involving similar facts actually held that limits on withdrawal of groundwater designed to preserve water for drinking purposes actually took the property rights of water rights owners who had received permits to use the water to irrigate their pecan crops. That case is...

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State did not dispossess owners and thus did not "take' lands in violation of the constitution merely by asserting ownership

The Texas Supreme Court affirmed its ruling that the border between state-owned submerged lands and private lands along the coast is the "mean higher high tide line" or the mean location of the high tide line over the regular tidal cycle of 18.6 years. Porretto v. Tex. Gen. Land Office, 2014 WL 2994436 (Tex. 2014). In various ways, agents of the state of Texas has acted so as to claim public rights in property that is on the "private" or landward side of the line. The Texas General Land Office...

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Court holds that beach rights can be lost through erosion

The Supreme Judicial Court of the Commonwealth of Massachusetts has reaffirmed the old rule that property rights can be expanded by slow accretion or diminished through slow erosion when property is located on a stream or the ocean. In White v. Hartigan, 982 N.E.2d 1115 (Mass. 2013), beachfront owners claimed a right to use the beach behind their neighbors house because their deed had given them rights to the beach in 1841. The court disagreed, noting that changing boundaries had...

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Groundwater ownership in Texas

The Texas Supreme Court has issued a somewhat confusing opinion holding that landowners own the groundwater beneath the surface of their land. In Edwards Aquifer Auth. v. Day, No. 08-0964 (Feb.24, 2012), the Texas Supreme Court held that a water regulation commission may have taken an owner's groundwater rights without just compensation under the Penn Central test when it limited an owner's groundwater rights to the amounts of water he had historically taken from the land. The court...

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