THE ATTORNEY GENERAL 

OF TEXAS 

Honorable Lloyd Criss 

Chairman 

Labor & Employment 

Relations Committee 

House of Representatives 

Austin, Texas 78769 

Opinion No. JM-1123 

Re: Ownership of an artificially restored beach, and 

related questions (RQ-1767) 

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 tracts. in 

. 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't0 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 distinction 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 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 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. 

You also ask: 

c 

Who is liable for damages caused by a dislodged 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