If a Texas beach is artificially rebuilt after washing away, does the old owner get it back or does the state keep it?

Texas AG Opinion JM-1123: Who Owns an Artificially Restored Beach?

Plain-English summary

A state representative asked the Attorney General who owns beachfront land after it has been "artificially restored." The setup: beachfront (littoral) property can be lost when the shoreline moves and the land goes underwater. Under Texas law, the state generally owns the submerged lands of the bays, inlets, and Gulf waters, and the boundary between state-owned submerged land and privately owned upland is the high tide line. If dry land is added to a tract naturally and gradually (a process called accretion), the upland owner gains title to the new land. The question was whether an owner who lost land to the state by submergence can get it back if the land is later built back up above the tide line by artificial means, like dumping fill.

The Attorney General's answer was no. Where title to the submerged land is already in the state, raising it above the tide line by artificial means does not transfer title back to the neighboring upland owner. Title stays with the state. The opinion rested this on Lorino v. Crawford Packing Co., a 1943 Texas Supreme Court case holding that accretions along the Gulf and bays added by artificial means do not belong to the upland owners but remain the property of the state, and on later cases applying that rule (including a 1974 case where an artificially created island stayed with the state, and a 1976 Supreme Court statement that a littoral owner may not acquire submerged land through self-help by filling and raising the land level). The key distinction throughout is natural versus artificial: natural accretion transfers title to the upland owner, artificial raising does not.

The opinion was careful to limit itself. It addressed only the situation where the state already holds title to the submerged land when the artificial raising happens. It did not decide when title to submerged beach land might not be in the state in the first place, situations involving federal property rights, effects on rights other than title (like the right of access to the water), or how the rule might differ for land granted out of the sovereign before Texas adopted the English common law on January 20, 1840 (for those older grants, Spanish or Mexican civil law could apply). On the representative's second question, about who is liable for damage caused by a dislodged breakwater or other man-made object forced ashore by a hurricane, the Attorney General said the question was too broad and fact-dependent to answer, noting that governmental immunity under the Texas Tort Claims Act might also be relevant.

Currency note

This opinion was issued in 1989. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Texas coastal boundary and public-beach law has continued to develop through later court decisions and legislation. Anyone dealing with a present-day beach-restoration or coastal-title question should consult current statutes and case law rather than relying on the 1989 analysis here.

Who this opinion affected (as of 1989)

Beachfront (littoral) property owners: The opinion told owners that once the state held title to a submerged portion of their tract, artificially rebuilding that land above the tide line would not restore their ownership. Only natural accretion would add title.

The state and the General Land Office: The opinion confirmed the state's continued title to artificially raised submerged land, and noted that the beds and shores of the Gulf within Texas are part of the permanent school fund, with the General Land Office Commissioner holding certain powers over such property.

Local governments and coastal developers: For entities considering beach nourishment, fill projects, or breakwaters, the opinion signaled that building land up artificially would not vest private (or renewed private) title, and it left liability for dislodged structures to be decided case by case.

Common questions

If my beachfront land washed away and is later rebuilt with fill, do I own it again?
Not automatically. The Attorney General concluded that where the state holds title to the submerged land, raising it above the tide line by artificial means does not transfer title back to the upland owner. Title stays with the state.

What about land that comes back naturally?
Land added seaward by natural, gradual accretion goes to the upland owner. The controlling distinction is natural versus artificial: natural accretion transfers title, artificial raising does not.

Did the opinion decide every beach-title situation?
No. It addressed only the case where the state already held title to the submerged land. It did not decide when title might not be in the state, situations with federal property rights, effects on rights other than title, or how older pre-1840 Spanish or Mexican grants might be treated.

Who is liable if a breakwater breaks loose in a hurricane and damages property?
The Attorney General declined to answer, calling the question too broad and fact-dependent. It noted that liability would depend on the particular facts and that governmental immunity under the Texas Tort Claims Act might be relevant.

Background and statutory framework

Except where valid grants have been made, the state of Texas holds title to all submerged lands of the bays, inlets, and Gulf waters (City 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 Packing Co., 175 S.W.2d 410 (Tex. 1943), and 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)). The dividing line between state-owned submerged land and privately owned 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 English common law (Rudder v. Ponder, 293 S.W.2d 736 (Tex. 1956)); for grants made before that date, the Spanish or Mexican civil law line of "mean higher high tide" would apply (Luttes v. State, 324 S.W.2d 167 (Tex. 1958)).

The shoreline moves with wind and water. Accretion is the natural, gradual addition of soil (alluvion) to the shore, and where dry land is added seaward by accretion, the upland owner takes title to it (Humble Oil & Ref. Co. v. Sun Oil Co., 190 F.2d 191, 196 (5th Cir.), reh'g denied, 191 F.2d 705 (5th Cir. 1951), cert. denied, 342 U.S. 920 (1952), citing State v. Balli, 190 S.W.2d 71 (Tex. 1944)). Conversely, a littoral owner loses title to land gradually eroded away (City of Port Isabel, supra, at 943, citing City of Corpus Christi v. Davis, 622 S.W.2d 640 (Tex. Civ. App. - Austin 1981, writ ref'd n.r.e.)). The representative's question assumed title to the property was already in the state, so the opinion addressed only whether a littoral owner who lost submerged land to the state could regain title by later artificially restoring it above the high tide line.

The Attorney General concluded title would not return. In Lorino, discarded oyster shells built up submerged land above water level over time, and the Supreme Court held that accretions added by artificial means remain the property of the state. Later cases followed that rule: in Lakefront Trust, Inc. v. City of Port Arthur, 505 S.W.2d 606, 608 (Tex. Civ. App. - Beaumont 1974, writ ref'd n.r.e.), title to an artificially created island vested in the state, and the court treated the later Supreme Court authorities (including Lorino) as controlling over two older, contrary courts of civil appeals cases (Fisher v. Barber, 21 S.W.2d 569 (Tex. Civ. App. - Beaumont 1929, no writ), and Fitzgerald v. Boyles, 66 S.W.2d 347 (Tex. Civ. App. - Galveston 1931, writ dism'd), which had held title was not lost by submergence). In Coastal Indus. Water Auth. v. York, 532 S.W.2d 949, 952 (Tex. 1976), the Supreme Court cited Lorino for the proposition that a riparian or littoral owner may not acquire submerged land through self-help by filling and raising the land level. The opinion also noted other cases and theories bearing on the natural-versus-artificial distinction (Luttes, supra, at 193; Curry v. Port Lavaca Channel & Dock Co., 25 S.W.2d 987, 988 (Tex. Civ. App. - San Antonio 1930, no writ); Port Aransas Properties v. Ellis, 129 S.W.2d 699, 702 (Tex. Civ. App. - San Antonio 1939, writ dism'd judgm't cor.); Manry v. Robison, 56 S.W.2d 438 (Tex. 1932) (avulsion exception)), and a law review treatment (Dinkins, "Texas Seashore Boundary Law: The Effect of Natural and Artificial Modifications," 10 Houston L. Rev. 43 (1972)).

The opinion expressly reserved several issues: situations where title to the submerged land was not in the state; federal property rights (California ex rel. State Lands Comm'n v. United States, 457 U.S. 273 (1982)); effects on rights other than title, such as the littoral right of access; and the treatment of land granted out of the sovereign before January 20, 1840. On the part of the question referring to the General Land Office, the opinion noted only that the arms, beds, and shores of the Gulf within Texas are part of the permanent school fund (Natural Resources Code § 11.041), and that the Land Office Commissioner has certain powers over such property (see Nat. Res. Code § 51.291). On the second question about a dislodged breakwater, the opinion declined to opine, noting liability would depend on the facts and that governmental immunity under the Texas Tort Claims Act (Civ. Prac. & Rem. Code ch. 101) might be relevant.

Citations

Statutory authorities:

• Natural Resources Code § 11.041 (Gulf arms, beds, and shores within Texas included in the permanent school fund)
• Natural Resources Code § 51.291 (Land Office Commissioner's authority over certain grants and easements)
• Civil Practice and Remedies Code ch. 101 (Texas Tort Claims Act; noted as potentially relevant to breakwater liability)

Cases:

• City of Port Isabel v. Missouri Pacific R.R., 729 S.W.2d 939 (Tex. App. - Corpus Christi 1987, writ ref'd n.r.e.) (state title to submerged Gulf lands)
• Lorino v. Crawford Packing Co., 175 S.W.2d 410 (Tex. 1943) (artificial accretions remain the state's)
• Butler v. Sadler, 399 S.W.2d 411 (Tex. Civ. App. - Corpus Christi 1966, writ ref'd n.r.e.)
• Rudder v. Ponder, 293 S.W.2d 736 (Tex. 1956) (mean high tide line for post-1840 patents)
• Luttes v. State, 324 S.W.2d 167 (Tex. 1958) (mean higher high tide for pre-1840 civil-law grants)
• Humble Oil & Ref. Co. v. Sun Oil Co., 190 F.2d 191 (5th Cir.), reh'g denied, 191 F.2d 705 (5th Cir. 1951), cert. denied, 342 U.S. 920 (1952) (natural accretion doctrine)
• State v. Balli, 190 S.W.2d 71 (Tex. 1944)
• City of Corpus Christi v. Davis, 622 S.W.2d 640 (Tex. Civ. App. - Austin 1981, writ ref'd n.r.e.)
• Lakefront Trust, Inc. v. City of Port Arthur, 505 S.W.2d 606 (Tex. Civ. App. - Beaumont 1974, writ ref'd n.r.e.) (artificial island vests in state)
• Coastal Indus. Water Auth. v. York, 532 S.W.2d 949 (Tex. 1976) (no title by self-help filling)
• Fisher v. Barber, 21 S.W.2d 569 (Tex. Civ. App. - Beaumont 1929, no writ)
• Fitzgerald v. Boyles, 66 S.W.2d 347 (Tex. Civ. App. - Galveston 1931, writ dism'd)
• Manry v. Robison, 56 S.W.2d 438 (Tex. 1932) (avulsion exception)
• Curry v. Port Lavaca Channel & Dock Co., 25 S.W.2d 987 (Tex. Civ. App. - San Antonio 1930, no writ)
• Port Aransas Properties v. Ellis, 129 S.W.2d 699 (Tex. Civ. App. - San Antonio 1939, writ dism'd judgm't cor.)
• California ex rel. State Lands Comm'n v. United States, 457 U.S. 273 (1982) (federal common law where federal government owns uplands)

Other authorities:

• Attorney General Opinion C-52 (1963)
• Dinkins, "Texas Seashore Boundary Law: The Effect of Natural and Artificial Modifications," 10 Houston L. Rev. 43 (1972)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-1123
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1989/jm1123.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

THE ATTORNEY GENERAL OF TEXAS

December 22, 1989

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. City 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 Packing 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.2d 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 of "mean higher high tide" -- would apply in determining the seaward boundaries of littoral 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 dry land thus added. See Humble Oil & Ref. Co. v. Sun Oil Co., 190 F.2d 191, 196 (5th Cir.), reh'g denied, 191 F.2d 705 (5th Cir. 1951), cert. denied, 342 U.S. 920 (1952) (citing State v. Balli, 190 S.W.2d 71 (Tex. 1944) "by 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. City of Port Isabel, supra, at 943 (citing City of Corpus Christi v. Davis, 622 S.W.2d 640 (Tex. Civ. 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 generally 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.[Footnote 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 Packing 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 "[a]ccretions 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 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."[Footnote 2] Lakefront Trust, Inc. v. City 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 filling and raising the land level."

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.[Footnote 3]

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.g., 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.g. the littoral right of access to the water. See, e.g., City of Corpus Christi v. Davis, supra, 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, supra, 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:

Who is liable for damages caused by a dislodged breakwater or other man-made object?

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.

Very truly yours,

JIM MATTOX
Attorney General of Texas

MARY KELLER
First Assistant Attorney General

LOU MCCREARY
Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by William Walker
Assistant Attorney General

Footnote 1: See footnote 2.

Footnote 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.2d 569 (Tex. Civ. App. - Beaumont 1929, no writ) and Fitzgerald v. Boyles, 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, supra] must be accepted as correct statements of law where in conflict with these two older cases of the Courts of Civil Appeals." Lakefront, supra, at 608-09. The Fisher and Fitzgerald 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.g., 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); City of Corpus Christi v. Davis, supra, 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 Appeals]"); cf. Manry 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). See also Luttes, supra, 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, Curry v. Port Lavaca Channel & Dock Co., 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 Properties v. Ellis, 129 S.W.2d 699, 702 (Tex. Civ. App. - San Antonio 1939, writ dism'd judgm't cor.) (making natural versus artificial accretion distinction).

Footnote 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 accurately, of the General Land Office? (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 that "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.g., Nat. Res. Code § 51.291, which authorizes the commissioner to execute certain grants of easements for rights-of-way across unsold 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 . . . .