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Go Back2.2.1  Existing access along the shore
2.2.3:  How rolling easements can helpGo Forward

2.2.2 Impact of Sea Level Rise on Access

The potential impact of rising sea level on public access depends on how the public obtained access.

If the public trust doctrine is the source of public access, then the impact of sea level rise on access is similar to the impact on wetlands and beaches. Where there is no shoreline armoring or other obstruction, shoreline erosion causes the landward boundary of public access to move inland. Any seaward boundaries for specific types of access move inland as well: For example, if driving on the beach is prohibited within 50 feet inland of the high water mark, then as the shore erodes, that boundary will migrate inland. Similarly, pedestrian access is generally impractical seaward of the mean high tide line in areas of wave runup: as the shore erodes, the mean high tide line retreats as well. Wherever the shore is armored, pedestrian and vehicular access can be eliminated as the access ways are squeezed between the retreating shore and the shoreline armoring.

Wherever the public has access for reasons other than the public trust doctrine, shore erosion can eliminate access whether or not the shore is armored.

Public Trust Lands. Where property lines follow a shoreline, the rule for several centuries has been that the property lines advance or retreat whenever shores gradually advance or retreat.[65] The principal is generally known as the “law of accretion and reliction (sea level drop)” because the law originally evolved as courts decided cases between the King of England and waterfront landowners regarding the ownership of newly created lands.[66] But the same rule applies when the shore erodes, which is part of the rule’s justification.[67]

Doctrine of Avulsion along a Barrier Island Inlet
Figure 4. Impact of Inlet Migration and Inlet Breech on Land Ownership, According to the Doctrines of Accretion and Avulsion. In this example, the island to the west is privately owned while the island to the east is a county park.

When the shoreline migrates suddenly, by contrast, the property line does not move, under the “law of avulsion.”[68] Although somewhat counterintuitive,[69] courts treat avulsion and accretion differently for several reasons. Originally all lands had fixed boundaries,[70] so when large areas of land suddenly appeared over what had been water, early courts had little reason to change the rule that what had been the King’s water was now the King’s land.[71] When the state fills a body of water to create land, the state owns that land under the law of avulsion,[72] although there may be provisions to ensure that the littoral landowner continues to have access to the water.[73] The courts in some states, however, view the new land as an artificial accretion and award it to the waterfront landowner.[74] Another example of avulsion would be a river changing course[75] or the sudden creation of an inlet through a barrier island. If one’s home is originally west of a channel, and a storm causes the channel to switch to a point west of the home, then under the law of avulsion the same person still owns the home (see Figure 4).

The law of avulsion has a clear rationale when land is created or a channel switches, but the logic for the rule is not as clear in the case of a sudden retreat of the shoreline. Most ocean beaches have had at least one storm that caused substantial erosion since the land was originally transferred from the government to a private landowner. If courts follow the doctrine of avulsion, then boundaries remain out in the ocean at the location where they had been before the avulsive storm. Finding such boundaries would be difficult. Moreover, if the original intent of a land grant from a state (or the King) was for the public to own the wet beach below the high water mark, it seems unlikely that the state would want continued public ownership of the wet beach to depend on whether shore erosion was caused by severe storms or more gradual processes. For this reason, Texas has decided not to follow the rule of avulsion for the impact of shore erosion on the seaward boundary of privately owned land.[76]

Many states that observe the law of avulsion provide the waterfront land owner with the right to fill and thereby recover the lost dry land,[77] but eventually move the boundary inland if the owner fails to do so. The right to recover lost land has limited utility: Federal and state laws require a landowner to obtain a permit before filling open water or wetlands with soils to create or reclaim land from the sea, and obtaining such a permit may be difficult.[78] Nevertheless, the landowner’s right to reclaim land implies that when a governmental beach nourishment project reclaims the land shortly after it is lost, the reclaimed land belongs to the private landowner, though otherwise land created by beach nourishment would be an avulsion that belongs to the state.[79]

Access along Privately Owned Lands. As we discuss in the previous subsection, the public has access to many privately owned beaches, for one of two reasons: (a) under the public trust doctrine of a few states, the public retained access to the beach when the state (or King) transferred the land to a private owner or (b) the public re-acquired access from a private landowner. The impact of sea level rise on access along the shore is different for those two situations:

Under the public trust doctrine, the inland boundaries of public access are based on environmental features of the shore. Therefore, when the shoreline moves gradually, the inland boundary of public access also moves. In New Jersey (and possibly Oregon), as the dune vegetation line retreats, the public has access to the new area of beach that was formerly part of the dune.[80] In the five states where private land extends to mean low water, the public continues to have access up to mean high water (for fishing, hunting, navigation) as the ordinary high water mark advances inland.[81] The impact of avulsive shore erosion on public access is less clear. If avulsion does not change a property boundary, one might assume that it would not change the inland boundary of public access. Yet the practical need for access along a beach depends on where the shoreline is now, while the need for established property lines for mineral royalties or port facilities would not require boundaries to move instantaneously to be effective. Few if any cases have addressed the distinction between access and ownership as defined by the public trust doctrine in the context of an avulsive loss of land. [82]

Public access usually does not migrate inland where it has been obtained by means other than the public trust doctrine. As a general rule, a landowner can grant someone else the right to cross her own land. (Such a right is generally called an “easement.” Chapter 3 discusses easements in greater detail.[83]) But a waterfront owner cannot sell what she does not own, such as the right to cross a neighbor’s land. Therefore, the dry beach easement conveyed by the owner of one parcel cannot migrate to an inland parcel. Consider the many communities where government agencies have purchased or otherwise acquired public access along privately owned beaches whose title extends to mean high water. The public access is along beaches over parcels that are waterfront today, but not across parcels that are not even along the water. Suppose the shore erodes so that today’s beaches become water and the beach migrates onto land that currently is the second row of lots back from the ocean. The public will not have access along the new dry beach.[84] It will still have access across land that was previously the dry beach; but pedestrian access will not be feasible if the mean high tide line is regularly flooded by the runup from large waves.

There is no clear rule about whether existing public easements migrate inland within a given parcel of land.[85] If the normal rule for easements applies, then the inland boundaries probably do not move inland.[86] Some state courts have explicitly declared that easements do not roll.[87] In Texas, the public access boundary within a given parcel moves if the shore erodes gradually, but does not move if the shore retreats suddenly during a hurricane.[88] If avoiding such ambiguities is important, deeds that provide public access should specifically say whether the access migrates with the changing shore.

Shoreline Structures. Homes standing on the beach can impair access along the shore, by blocking vehicles and creating a hazard to anyone on the beach (see Photos 14 and 15). Where the shore is armored , pedestrian and vehicular access along an eroding shore is generally lost because the beach is eliminated (see Photos 16 to 18).[89] 

West Gaveston, Texas

Surfside, Texas
Photos 14 and 15. Homes on the beach also impair access along the shore. Left: West Galveston, Texas (March 2006). Right: Surfside Texas (March 2006). [Photo source: ©James G. Titus, used by permission].

Photos 16 to 18. Shoreline armoring can make vehicular and pedestrian access along the shore impractical. Top left: a seawall protecting some high-rise buildings along the Gulf of Mexico on North Padre Island prevents automobile traffic on the beach (March 2010). Top right: At first, traffic was restricted to one-way (March 1998). Bottom: a stone revetment makes walking along the shore impractical north of Surfside, Texas (May 2003). Photo source: ©James G. Titus, used by permission.

[65] See J.L. Sax, Changing Currents: Perspectives on the State of Water Law and Policy in the 21st Century: The Accretion/Avulsion Puzzle: Its Past Revealed, Its Future Proposed, 23 Tulane Environmental Law Journal 305, 306 (2010). See also County of St. Clair v. Lovingston, 90 U.S. (23 Wall.) 46, 66–69 (1874) (quoting the Institutes of Justinian, Code Napoleon, and Blackstone for the universal rule that a boundary shifts with the shore). In England, three 14th century cases established the rule that gradual accretions of land belong to the waterfront landowner: The Eyre of Nottingham Case (1348), The Abbot of Peterborough’s Case (1367), and the Abbot of Ramsay’s Case (1369). Sax at 313–320.

[66] See Sax, supra note 65, at 313–334. 

[67] “’Every proprietor whose land is thus bounded is subject to loss by the same means which may add to his territory, and as he is without remedy for his loss in this way he cannot be held accountable for his gain.Lovingston, 90 U.S. (23 Wall.) at 68 (quoting Mayor of New Orleans v. United States, 35 U.S. (10 Pet.) 662, 717 (1836)).

[68] See, e.g., Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection, 130 S. Ct. 2592, 2611–2612, 560 U.S. __, __–__ 2010 (discussing the Florida law of avulsion) and City of Long Branch v. Liu, 833 A.2d 106, 363 (N.J. Super. 2003), aff’d City of Long Branch v. Jui Yung Liu, No. A-9 (N.J. 2010) (holding that beach nourishment does not change title from the state to the littoral landowner). 

[69] Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection, 130 S. Ct. at 2612 560 U.S. at __ 2010 (“The result under Florida law may seem counter-intuitive. After all … property has been deprived of its character (and value) as oceanfront property by …an avulsion.”). 

[70] Professor Joe Sax pointed out that in the common law, property originally had fixed boundaries whether or not it was along the shore.  Sax, supra note 65, at 311. When the king granted property up to the shore, that meant up to where the shore was at the time of the grant. As the law evolved, courts adopted the idea that boundaries move with a slowly eroding or accreting shore (rule of accretion), in part because awarding narrow and slowly evolving strips of land to the crown seemed inefficient. Id. at 341–343. But the old rule of fixed boundaries was not changed for those cases where the King filled open water to create land or other cases where the creation of land was abrupt (avulsion), because the reasons for the newer rule of accretion did not apply to avulsion. Id. at 322, 325 & 34243.

[71] Id. at 321 (“’[T]he ground which was the King’s when it was covered with the waters, is his also when the waters have left it’” (quoting The Readings of the Famous and Learned Robert Callis, Esq, Upon the Statute of Sewers, 23 Hen. VIII c.5, as it was Delivered by Him at Gray’s Inn, in August 1622 (4th edition, William John Broderip, 1824))).

[72] See, e.g., Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection, 130 S. Ct. 2592, 2611–2612, 560 U.S. __, __–__ (2010) (discussing the Florida law of avulsion) and City of Long Branch v. Liu, 833 A.2d 106, 363 (N.J. Super. 2003), aff’d City of Long Branch v. Jui Yung Liu, No. A-9 (N.J. 2010) (beach nourishment does not change title from the state to the littoral landowner). Cf. New Jersey v. New York, 523 U.S. 767 (1998) (holding that portions of Ellis Island created by filling the Hudson River are in New Jersey because the island is within the New Jersey side of the river and the doctrine of avulsion applies to boundaries between sovereigns).

[73] Walton County v. Stop Beach Renourishment, 998 So.2d 1102, 1119–1120 (Fla. 2008), aff’d Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection, 130 S. Ct. 2592, 560 U.S. __, (2010) (discussing Florida waterfront access rights, and how the Florida Beach and Shore Preservation Act preserves those rights).

[74] E.g., 342 Mass. 251, 173 N.E.2d 273 (1961) Benjamin Michaelson & others v. Silver Beach Improvement Association, Inc., Supreme Judicial Court of Massachusetts, Barnstable (land created by filling shallow waters as part of a navigation project belongs to private landowner not the state) and State v. Gill, 66 So.2d 141, 142–43 (1953) (same).

[75] “Where a stream, which is a boundary, from any cause suddenly abandons its old and seeks a new bed, such change of channel works no change of boundary; and that the boundary remains as it was, in the centre of the old channel, although no water may be flowing therein. This sudden and rapid change of channel is termed, in the law, avulsion.” Nebraska v. Iowa, 143 U.S. 359, 361 (1892). 

[76] City of Corpus Christi v. Davis, 622 SW 2d 640 (Tex. App. 1981) (concluding that the doctrine of avulsion should not be applicable to eroding Gulf Coast Beaches but declining to adopt such a holding because it is a matter more appropriately addressed by the Texas Supreme Court). Severance v Patterson, No. 09-0387 (Tex. 2010). (“This holding shall not be applied to use the avulsion doctrine to upset the long-standing boundary between public and private ownership at the mean high tide line. That result would be unworkable, leaving ownership boundaries to mere guesswork. The division between public and private ownership remains at the mean high tide line in the wake of naturally occurring changes, even when boundaries seem to change suddenly”).

[77] See, e.g., Md. Code Environment §16-201(a) (preserving right to reclaim land lost to shoreline erosion since January 1, 1972); and Walton County v. Stop Beach Renourishment, 998 So.2d 1102, 1117 (Fl. 2008) (“Significantly, when an avulsive event leads to the loss of land, the doctrine of avulsion recognizes the affected property owner's right to reclaim the lost land within a reasonable time.”). See generally 1 Henry Philip Farnham, The Law of Waters and Water Rights § 74 at 331 (1904). This common law rule dates back at least to the 17th century writings of England’s Lord Chief Justice Robert Hale. “If a subject hath land adjoining the sea, and the violence of the sea swallow it up, but so that yet there be reasonable marks to continue the notice … [and] if it be by art or industry regained, the subject does not lose his propriety, and so it was held … though the inundation continue forty years.” Robert Hale, De Jure Maris, in Stuart A. Moore, A History of the Foreshore and the Law Relating Thereto, 3d ed. 1888, at 381 (citing Cooke and Foster, M. 7 Jac. C. B.).

[78] See generally CCSP, supra note 3 , at 147–149 and 166–168 (discussing tidal wetland protection regulations with a focus on adapting to sea level rise).

[79] See, e.g., Dept. of Natural Resources v. Ocean City, 274 Md. 1, 14–15 (1975).

[80] See Matthews v. Bay Head Improvement Ass'n, 471 A.2d 355, 358 (N.J. 1984) (holding that public trust access includes the dry beach between mean high water and the vegetation line). State ex rel. Thornton v. Hay, 462 P.2d 671, 672–74 (Or. 1969) (holding that under the doctrine of custom, public access extends inland to the 16-foot contour, which is similar to the dune vegetation line).  Whether public access derived from the doctrine of custom migrates inland is unclear. See   infra note 85.

[82] Courts have distinguished the impact of avulsion on the boundary of tideland from access created for reasons other than the public trust doctrine. See, e.g., Severance v Patterson, No. 09-0387 (Tex. 2010).

[84] This question could be more complicated if access is acquired when waterfront parcels are large, and the parcel is subsequently subdivided. If the owner conveys an easement for public access along the dry sand beach with language indicating an intent for the easement to migrate, then such an easement will apply to the entire parcel, even if it is subdivided.    

[85] Trepanier v. County of Volusia, 965 So.2d 276, 292–293 (Fla. App. 2007) (holding that public easement resulting from custom does not migrate inland if evidence does not show that people have customarily shifted their use of the beach inland as the shore erodes).

[86] “Easement boundaries are generally static and attached to a specific portion of private property.” Severance v Patterson, No. 09-0387 (Tex. 2010). “As a general rule, once the location of an easement has been established, neither the servient estate owner nor the easement holder may unilaterally relocate the servitude." Id. (quoting Jon W. Bruce & James W. Ely, Jr., the Law of Easements and Licenses in Land § 7:13 at 7-30 (2009)). See also P. Burka, Shoreline Erosion: Implications for Public Rights and Private Ownership, 1 Coastal Zone Management Journal 175, 182 (1974) (arguing that public easements along the shore would not migrate inland, with the possible exception of those reserved under the public trust doctrine). But cf. infra notes 414–418 and accompanying text (suggesting that some courts place a higher priority on achieving the intent of the parties who negotiated the easement than the specific route that the easement holder uses to cross).

[87] Smith v. Bruce, 241 Ga. 133, 147 (1978) (“Once an easement in a specific area is conveyed to lot owners in a beach subdivision as a beach or recreational area, or such an area has been offered for dedication for public use and accepted by the public for such use it may, nevertheless, be lost by gradual erosion and avulsion.)

[88] “Texas does not recognize a ‘rolling’ easement on Galveston's West Beach. Easements for public use of private dry beach property do change along with gradual and imperceptible changes to the coastal landscape. But, avulsive events such as storms and hurricanes that drastically alter pre-existing littoral boundaries do not have the effect of allowing a public use easement to migrate onto previously unencumbered property.” Severance v Patterson, No. 09-0387 (Tex. 2010).

[89] See generally Maryland Law Review, supra note 7.

Go Back2.2.1  Existing access along the shore
2.2.3:  How rolling easements can helpGo Forward

This page contains a section from: James G. Titus, Rolling Easements, U.S. Environmental Protection Agency. EPA‑430‑R‑11‑001 (2011). The report was originally published by EPA's Climate Ready Estuary Program in June 2011. The full report (PDF, 176 pp., 7 MB) is also available from the EPA web site.

For additional reports focused on the implications of rising sea level, go to Sea Level Rise Reports.

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