               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


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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.


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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 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).



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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)



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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 . . . .



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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




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