Untitled Texas Attorney General Opinion ( 1989 )

THE ATTORNEY GENERAL
OF TEXAS
Honorable Lloyd Criss Opinion No. JM-1123
Chairman
Labor & Employment Re: Ownership of an artifi-
Relations Committee cially restored beach, and
House of Representatives related questions (RQ-1767)
Austin, Texas 78769
Dear Representative Criss:
You ask about the ownership of beach property that has
been "artificially restored":
After beach property has been reclaimed and
restored, does it belong to the owner prior
to its submersal, or does it remain the
property of the State?
Except where valid grants have been made, the State of
Texas has title to all submerged lands of all bays, inlets,
and other waters along the Gulf of Mexico. Citv of Port
Isabel v. Missouri Pacific R. R., 729 S.W.2d 939 (Tex. APP.
- Corpus Christi 1987, writ ref'd n.r.e.) (citing Lorino .v.
Crawford Packins Co., 175 S.W.2d 410 (Tex. 1943); Butler v.
Sadler, 399 S.W.2d 411 (Tex. Civ. App. - Corpus Christi
1966, writ ref'd n.r.e.)), see also Attorney General
Opinion C-52 (1963) (title to submerged littoral property
transferred by state to City of Corpus Christi). The
dividing line between state ownership of submerged land and
private ownership of the upland is the line of mean high
tide for patents issued on or after January 20, 1840, the
date the Republic of Texas adopted the common law of
-England. Rudder v. Ponder, 293 S.W.Zd 736 (Tex. 1956). For .
grants made prior to January 20, 1840, the dividing line
under the Spanish or Mexican civil law then in effect -- the
line off "mean higher high tide" -- would
determining the seaward boundaries of littora?PP1y in
tracts.
. Luttes v. State, 324 S.W.2d 167 (Tex. 1958).
The location of the shoreline, i.e. the applicable
high tide line, changes due to the action of wind, water,
and other forces. For example, "accretion" is the natural
process of gradual addition of soil (or "alluvion") to the
shore. Where dry land is added seaward by accretion to an
upland owner's tract, the upland owner acquires title to the
p. 5899
Honorable Lloyd Criss - Page 2' (JM-1123)
dry land thus 'added. See., Humble Oil & Ref. Co. v.
Sun Oil Co., 190 F.2d 191, 196 (5th Cir.), reh's denied, 191
F.2d 705 (5th Cir. 1951), cert. denied, 342 U.S. 920 (1952)
(citing State, 190 S.W.2d 71 (Tex. 1944) 'Iby the
doctrine of accretion, any new alluvion that forms above the
tide-line becomes a part of the contiguous upland estate").
Conversely, a littoral owner -- i.e. one whose property is
bounded by the seashore -- loses title to land gradually
eroded by an encroaching shoreline. Citv of Port Isabel,
suora, at 943 (citing Iv,
C't 0 622
S.W.2d 640 (Tex. APP. - Austin 1981, writ ref'd n.r.e.)).
Thus, generally speaking, "the location of the shoreline,
wherever it may be at any given time, represents the
boundary of a littoral owner's property." Id. at 942.
See oenerallv Dinkins, "Texas Seashore Boundary Law: The
Effect of Natural and Artificial Modifications," 10 Houston
L.Rev. 43 (1972).
The framing of your question -- whether previously
submerged and subsequently "restored" property "belong[s]
to the owner prior to its submersal . . . or . . . remain[s]
the property of the State" -- implies that title to the
property in question is in the state at the point at which
restoration is undertaken. No issue is before us as to
when, or under what circumstances, title to submerged beach
property might not be in the state.1 Therefore, we will
address whether a littoral property owner who has lost to
the state title to a portion of his tract that has 'become
submerged may regain title to such portion if it is
subsequently artificially restored such that it is again
above the applicable high tide line.
While title to submerged land would pass from the state
to the adjoining upland owner if the property is raised by
natural accretion above the high tide line, it appears to be
the rule in Texas that title to land raised above the high
tide line by artificial means would remain in the state. In
Lorino v. Crawford Packins Co., 175 S.W.2d 410 (Tex. 1943),
discarded oyster shells from an oyster house built up over
time to raise previously submerged land above water level.
The supreme court stated that "[alccretions along the shores
of the Gulf of Mexico and bays which have been added by
artificial means do not belong to the upland owners, but
remain the property of the State." Id. at 414.
In 1974, the Beaumont Court of Appeals, in deciding
that title to land eroded by encroaching lake waters was
1. See footnote 2.
p. 5900
Honorable Lloyd Criss - Page 3 (JM-1123)
lost to the state and that title to an island later created
at the same location by human agency was vested in the
state, noted that the Lorino court had "held specifically
that land which was added to the shoreline by artificial
means does not belong to the upland owners but remained the
property of the State."2 Lakefront Trust, Inc. v. Citv of
Port Arthur, 505 S.W.2d 606, 608 (Tex. Civ. App. - Beaumont
1974, writ ref'd n.r.e.).
In 1976 the supreme court, in Coastal Indus. Water
Auth. v. York, 532 S.W.2d 949, 952 (Tex. 1976), cited Lorino
for the proposition that a "riparian or littoral owner may
not acquire title to submerged land through self-help by
2. The Lakefront court in reaching its conclusion
conceded that it had found two court of appeals cases,
decided more than fifty years earlier, .which suggested a
different result, Fisher v. Barber, 21 S.W.Zd 569 (Tex. Civ.
APP. - Beaumont 1929, no writ) and m, 66
S.W.2d 347 (Tex. Civ. App. - Galveston 1931, writ dism'd).
The Lakefront court concluded "that the subsequent
Supreme Court cases cited in [its] opinion [including
Lorino, suora] must be accepted as correct statements of law
where in conflict with these two older cases of the Courts
of Civil Appeals." Lakefront, suora, at 608-09.
The Fisher and Fitzserald cases held that title to land
was not lost to the state when the land became submerged.
Your question assumes that title to the submerged land in
question has been lost to the state, and we address here
only the issue whether, once title is lost by submergence,
it can be regained by raising the land again by artificial
means above the high tide line. For your information,
however, we note other cases following or suggesting
theories under which title is not lost by submergence.
See, e.a., Coastal Indus. Water Auth. v. York, 532 S.W.2d
949 (Tex. 1976) (title to riparian land, submerged due to
subsidence, not lost to state); Citv of Corous Christi v.
Davis, m, at 644 ("question of applicability of the
doctrine of avulsion to tidal lands is of such prime
importance that it should be determined by the Supreme
Court, and not by this court [the Austin Court of
AppealslVU); cf. Manrv v. Robison, 56 S.W.2d 438 (Tex. 1932)
(avulsive -- i.e. sudden -- change in course of river
marking boundary between adjoining landowners does not alter
boundary: an exception to the rule that property lines
marked at shoreline follow changes in shoreline due to
erosion or accretion).
P. 5901
Honorable Lloyd Criss - Page 4 (JM-1123)
filling and raising the land level." See also Luttes,
suora, at 193 (attempt to distinguish to what extent certain
lands in the Laguna Madre had been raised above high tide
line by natural accretion and to what extent the raised
level of the land was due to certain dredging, damming, and
flood control operations, but on rehearing, the supreme
court decided that the issue of natural versus artificial
accretion was "not in the case"). Another pre-Lorino case,
u,
Curr 25 S.W.2d 987, 988
(Tex. Civ. App. - San Antonio 1930, no writ), also suggested
the significance of the natural versus artificial distinc-
tion in stating that the littoral lands. in question there
"could not be accretions, because not made up by gradual
imperceptible process of nature, but . . . were really man
made." See also Port Aransas Proverties v. Ellis, 129
S.W.2d 699, 702 (Tex. Civ. App. - San Antonio 1939, rlrit
dism'd judgm't car.) (making natural versus artificial
accretion distinction).
In light of the Lorino case and the other authorities
cited, we conclude in response to your question that where
title to submerged littoral land is in the state, raising
the land above the tideline by artificial means does not
effect a transfer of title to the adjacent upland littoral
property owner. Title remains in the state.3
3. Your question, as submitted, reads in its entirety:
1) Who is the rightful owner of beach that has
been artificially restored? After beach property has
been reclaimed and restored, does it belong to the
owner prior to its submersal, or does it remain the
property of the State, or more accuratelv.. of the
-Land (Emphasis added.)
We are uncertain of the import of the portion of your
question that refers to the General Land Office,
underscored in the above quote. Therefore, with regard to
that part of your question, we note only that the Natural
Resources Code section 11.041 states tha.t "the arms and the
beds and shores of the Gulf of Mexico within the boundary of
Texas" are included in the permanent school fund. The
Commissioner of the General Land Office has certain powers
with respect to such property. See, e.s Nat. Res. Code
5 51.291, which authorizes the commissioner to execute
certain
grants of easements for rights-of-way across unsold
(Footnote Continued)
Pa 5902
Honorable Lloyd Criss - Page 5 (JM-1123)
Again, we caution that our disposition here is limited,
as your question implicitly is, to circumstances where the
state holds title to the submerged land when the artificial
raising of the land is undertaken. We do not address here a
situation where title to the submerged land was not in the
state. Nor do we address a situation where federal property
rights are involved. See. e.o., California ex rel. State
Lands Comm'n v. United States, 457 U.S. 273 (1982) (federal
common law applies where federal government owns uplands).
Nor do we address questions as to the effect on rights,
other than title, of artificial beach restoration -- e.cl.
the littoral right of access to the water. See, e.s., City
of, suvra, at 646.
Finally, we caution that we find no Texas authority
determining a rule of title to artificially raised littoral
property where the contiguous upland property was granted
out of the sovereign prior to the Republic of Texas'
adoption of the common law of England in 1840. The Luttes
court ruled that the respective rights of the upland
littoral owner and the state under an 1829 Mexican land
grant were to be determined under the civil law in effect at
the time of the grant. That court found that the applicable
civil law rule as to title to natural accretions to littoral
property was that the upland owner took title -- the same
rule as that of the later Texas common law. The case is an
example of the great difficulties in discovering, and deter-
mining the import of, such civil law rules. Lorino, m,
determined the common law, but not the civil law rule, with
respect to the artificial raising of submerged land, but the
court did not indicate whether littoral property granted out
of the sovereign prior to the 1840 date might be subject to
a rule different from the common-law rule applied in that
case. Since you do not specifically ask about littoral
properties which were granted out of the sovereign prior to
January 20, 1840, we have not here attempted to determine
whether a different civil law rule might apply in such cases
as to where title to artificially restored beach property
would lie.
c
You also ask:
Who is liable for damages caused by a dis-
lodged breakwater or other man-made object?
(Footnote Continued)
public school land, the portion of the Gulf of Mexico
within the jurisdiction of the state, and all islands,
saltwater lakes, bays, inlets, marshes, and reefs
owned by the state within tidewater limits . . . .
p. 5903
Honorable Lloyd Criss - Page 6 (JM-1123)
A hurricane could feasibly force such an
object ashore where it might destroy property
or cause harm to individuals. In such a
case, who holds responsibility for removing
and/or replacing the object?
Your question is too broad for us to address in any
detail. You do not indicate under what circumstances such a
breakwater would be constructed or subsequently dislodged,
or what parties might be involved in authorizing it,
constructing it, maintaining it, or causing it to be
constructed or maintained. Issues of governmental immunity
might also be relevant. See Texas Tort Claims Act, Civ.
Prac. & Rem. Code ch. 101.
SUMMARY
Under the circumstances addressed, where
title to submerged littoral land is in the
state, raising the land above the tideline by
artificial means does not effect a transfer
of title to the adjacent upland littoral
property owner. Title remains in the state.
Whether there would be liability for
damages or other relief from harm caused by a
dislodged breakwater would depend on the
facts of the particular case.
JIM MATTOX
Attorney General of Texas
MARY KELLER
First Assistant Attorney General
LOU MCCREARY .
Executive Assistant Attorney General
JUDGE ZOLLIH STEAXLEY
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by William Walker
Assistant Attorney General
p. 5904