Property Law Developments—Joseph William Singer

The Texas Supreme Court affirmed its ruling that the border between state-owned submerged lands and private lands along the coast is the “mean higher high tide line” or the mean location of the high tide line over the regular tidal cycle of 18.6 years. Porretto v. Tex. Gen. Land Office, 2014 WL 2994436 (Tex. 2014). In various ways, agents of the state of Texas has acted so as to claim public rights in property that is on the “private” or landward side of the line. The Texas General Land Office (GLO) claimed that it owns lands that the Texas Supreme Court says are privately owned; that office also requested that tax records be changed to indicate state ownership of those lands. These statements have made it harder for private owners to sell those lands. However, since the GLO ended its bid to change the tax rolls to claim public ownership of those lands and, “even though the [GLO] lawyers’  statements injured the [landlowners]”, the state did not actually dispossess the owners and therefore did not “take” their property without just compensation in violation of the takings clause.

The court also held that the line separating public and private ownership does not change because of state renourishment of beaches. “The State does not gain the dry beach by dumping sand on it,, nor does it lose what was before the wet beach, even if the renourishment pushes the MHHT [mean higher high tide] line farther seaward, which is usually the purpose of renourishment.”

The Supreme Judicial Court of the Commonwealth of Massachusetts has reaffirmed the old rule that property rights can be expanded by slow accretion or diminished through slow erosion when property is located on a stream or the ocean. In White v. Hartigan, 982 N.E.2d 1115 (Mass. 2013), beachfront owners claimed a right to use the beach behind their neighbors house because their deed had given them rights to the beach in 1841. The court disagreed, noting that changing boundaries had placed the plaintiffs’ beach under water and that they had no right to “moveable” boundaries ensuring access to the beach behind their neighbor’s house.

The Texas Supreme Court has issued a somewhat confusing opinion holding that landowners own the groundwater beneath the surface of their land. In Edwards Aquifer Auth. v. Day, No. 08-0964 (Feb.24, 2012), the Texas Supreme Court held that a water regulation commission may have taken an owner’s groundwater rights without just compensation under the Penn Central test when it limited an owner’s groundwater rights to the amounts of water he had historically taken from the land. The court found a state law that defined the amount of groundwater one can withdraw based on historical uses to be a potential taking of property because it believed an owner should not lose the right to withdraw vested rights in groundwater just because the landowner had failed to exercise his right to withdraw it in the past. The court did not overturn the state’s free use or absolute ownership rule for groundwater that allows owners to withdraw water without liability to neighboring owners whose wells are dried up or whose water amounts are reduced. It did hold that the landowner “owns” the groundwater beneath the surface and that use of several factors, including but not limited to historical uses, might constitute a legitimate regulatory measure. The court remanded for a determination of whether the state statutes, as applied to this owner, constituted a taking of property under the multi-factor Penn Central test. The case leaves groundwater regulation in Texas in a state of great uncertainty since the allowable parameters of regulation of groundwater are now in doubt. The Court cautioned that it did not believe its ruling would be disruptive and the legislature remained empowered to enforce environmental laws regulating water withdrawal without violating the takings clause. At the same time, it suggested that environmental regulation of water might require compensation of owners whose rights to withdraw water are restricted.