### THE ATTORNEY GENERAL OF TEXAS

Honorable Lloyd Criss Chairman Labor &Employment Relations Committee House ofRepresentatives Austin, Texas 78769 **Opinion** No. JM-1123

Re: Ownership of an artificially restored beach, and related questions (RQ-1767)

DearRepresentative Criss:

You ask about the ownership ofbeach property that has been "artificially restored":

After beach property has been reclaimed and restored, does itbelong to the owner prior to its submersal, or does it remain the property of the State?

Except where valid grants have beenmade, the State of Texas has title to all submerged lands ofallbays, inlets, and other waters along the Gulf ofMexico. 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.) (citingLorino .v. Crawford Packins Co., 175S.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) (titleto submerged littoral property transferred by state to City of Corpus Christi). The dividing linebetween state ownership of submerged land and private ownership of the upland isthe line ofmean high tide forpatents issued onor 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 toJanuary 20, 1840, the dividing line under the Spanish orMexican civil law then ineffect -- the line off "mean higher high tide" -- would determining the seaward boundaries of littora?PP1y in tracts.

. Luttes v. State, 324S.W.2d 167 (Tex. 1958).

The location of the shoreline, i.e. the applicable high tide line, changes due to the action ofwind, water, and other forces. For example, "accretion" isthe natural process ofgradual 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 .

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dry land thus 'added. See., Humble Oil &Ref. Co.v. Sun Oil Co., 190 F.2d 191, 196 (5thCir.), reh's denied, 191 F.2d 705 (5thCir. 1951), cert. denied, 342U.S. 920 (1952) (citingState, 190S.W.2d 71 (Tex.1944) 'Iby the doctrine ofaccretion, any new alluvion that forms above the tide-line becomes apart of the contiguous upland estate"). Conversely, a littoral owner -- i.e. onewhose property is bounded by the seashore -- loses title to land gradually eroded by an encroaching shoreline. Citv of Port Isabel, 0 suora, at 943 (citingC't Iv, 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 ofNatural andArtificial 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] theproperty of the State" -- implies that title to the property inquestion is inthe state at thepoint at which restoration is undertaken. No issue is before us as to when, orunder 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 aportion ofhis 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 landwould pass from the state to the adjoining upland owner iftheproperty israised by natural accretion above thehigh tide line, itappears tobe the rule inTexas that title to land raised above the high tide lineby artificial means would remain inthe state. In Lorino v. Crawford Packins Co., 175S.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 theGulf ofMexico andbays which have been added by artificial means do not belong to the upland owners, but remain theproperty of the State." Id. at 414.

In 1974, the Beaumont Court of Appeals, in deciding that title to land eroded by encroaching lakewaters was

1. See footnote 2.

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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 landwhich 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 PortArthur, 505 S.W.2d 606, 608 (Tex.Civ.App. - Beaumont 1974,writ ref'd n.r.e.).

In 1976 the supreme court, inCoastal Indus. Water Auth. v. York, 532 S.W.2d 949, 952 (Tex.1976), cited Lorino forthe 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,nowrit) andm, 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 inconflict with these two older cases of the Courts of CivilAppeals." Lakefront, suora, at 608-09.

The Fisher and Fitzserald cases held that title to land
was not lost to the statewhen the landbecame submerged. Your question assumes that title to the submerged land in question has been lost to the state, and we address here only the issuewhether, once title is lostby submergence, itcanbe 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) (titleto riparian land, submerged due to subsidence, not lost to state); Citv ofCorous Christi v. Davis,m, at 644 ("question ofapplicability 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, 56S.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).

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filling and raising the land level." See also Luttes, suora, at 193 (attempt todistinguish towhat extent certain lands inthe Laguna Madre hadbeen raised above high tide lineby natural accretion and to what extent the raised level of the landwas 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 inthe case"). Another pre-Lorino case, u, 25S.W.2d 987, Curr 988 (Tex.Civ.App. -SanAntonio 1930,nowrit), also suggested the significance of the natural versus artificial distinction instating that the littoral lands.inquestion there "could notbe accretions, because notmade upby 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 inresponse toyour question that where title to submerged littoral land is inthe state, raising the land above the tideline by artificial means does not effect atransfer of title to the adjacent upland littoral property owner. Title remains inthe state.3

3. Your question, as submitted, reads in itsentirety:

1) Who isthe rightful owner ofbeach that has been artificially restored? After beach property has been reclaimed and restored, does it belong to the
owner prior to itssubmersal, or does itremain 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 inthe above quote. Therefore, with regard to that part ofyour question, we note only that the Natural Resources Code section 11.041 states tha.t"the arms and the beds and shores of theGulf ofMexico within theboundary of Texas" are included in thepermanent school fund. The Commissioner of theGeneral Land Office has certain powers with respect to suchproperty. See, e.s Nat. Res. Code 551.291, which authorizes the commissioner to execute certain

grants of easements for rights-of-way across unsold (Footnote Continued)

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Again, we caution that ourdisposition here is limited,
asyour question implicitly is, to circumstances where the state holds title to the submerged landwhen the artificial raising of the land isundertaken. We donot address here a situation where title to the submerged landwas not in the state. Nor dowe address a situation where federal property rights are involved. See. e.o., California ex rel. State Lands Comm'n v.United States, 457U.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 thewater. See, e.s., City of, suvra, at 646.
Finally, we caution that we find noTexas 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 ofEngland 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 tobe determined under the civil law ineffect at the time of the grant. That court found that the applicable civil law rule as to title tonatural accretions to littoral property was that the upland owner took title -- the same rule as that of the laterTexas common law. The case is an example of the great difficulties indiscovering, and determining 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 1840datemight 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, wehave not here attempted to determine whether adifferent civil law rulemight apply in such cases as towhere title to artificially restored beach property would lie.

You also ask: c

Who is liable fordamages caused by adislodged breakwater or otherman-made object?

(Footnote Continued) public school land, theportion of the Gulf of Mexico within the jurisdiction of the state, and all islands, saltwater lakes, bays, inlets, marshes, and reefs ownedby the statewithin tidewater limits

. . . .

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Ahurricane could feasibly force such an object ashore where itmight destroy property
or cause harm to individuals. In such a case, who holds responsibility for removing and/or replacing the object?

Your question is toobroad forus to address in any detail. You donot 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 ormaintained. Issues ofgovernmental immunity might alsobe 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 inthe state.

Whether there would be liability for damages or other relief fromharm caused by a dislodged breakwater would depend on the facts of the particular case.

JIM MATTOX Attorney General ofTexas

MARY KELLER FirstAssistant Attorney General

LOUMCCREARY . Executive Assistant Attorney General

JUDGE ZOLLIH STEAXLEY Special Assistant Attorney General

RICK GILPIN Chairman, Opinion Committee
Prepared byWilliam Walker Assistant Attorney General

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