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 public accessible by anyone.
Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection, 560 U.S. 702 (2010), challenged a common law rule giving the public access to a new sand area on the beach created by government landfill. While refusing to decide whether a judicial common law ruling could be a taking, the Court unanimously agreed that Florida law did not change borders if a sudden event added more land between a riparian owner and public waters. While the public always had a right to use the wet sand area under the public trust doctrine, it gained a right to use the new dry sand area that was created by the beach renourishment program.
Conversely, the Texas Supreme Court issued a similar ruling in 2012 when beachfront property was suddenly reduced because of Hurricane Rita. Severance v. Patterson, 370 S.W.3d 705 (Tex. 2012). In Texas, the boundary between private property and public lands is the mean high tide line. Hurricane Rita moved an owner’s house closer to the wet sand area owned by the public. Before the hurricane, her house was landward of the vegetation line; afterwards it was on the seawards side but still on the dry sand area. The court held that the dry sand area is not open to the public unless a public easement has been established by express grant, prescription, or dedication.
The court noted that a “person purchasing beachfront property along the Texas coast does so with the risk that her property may eventually, or suddenly, recede into the ocean.” Id. at 718. If that happens gradually then the property owner loses some or all of her property, and if a house gradually comes to be located on the wet sand area, the state can order its removal from public lands. The reverse is also true; gradual addition to the beach will add to the beachfront owner’s property. However, if that line changes suddenly (“avulsion”), as it did in this case, then borders remain the same as before. Id. at 722–723.
In this case, that meant that if a public easement has existed over the property in this case, it no longer existed. Because there had never been a public easement over the land where the house sat, that did not change when the hurricane reduced the size of the beach. The private property rights of the home owner would be retained on her property and a new public easement would have to be established. The Court rejected the idea that a public easement of access to the dry sand area would “roll” with changes in the line between the beach and the sea.
