From the North Carolina Coastal Resources Law, Planning and Policy Center • Winter/Spring 2005
W elcome to the inaugural issue of of the Sea Grant program, and the coastal Legal Tides is a free publication
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The Rights of Oceanfront Property Owners in the 21st Century
By JOsePh KalO and WalTeR ClaRK
M“ embership has its privileges” — and our already crowded shores, an understanding
so does the ownership of waterfront property. of the scope and extent of the private and public
With the ownership of waterfront property comes rights in ocean and inlet shorelines is becoming
a set of unique property rights. But, unlike other more important and pressing.
types of property, waterfront property abuts a In the next two issues of Legal Tides, we will
public resource infused with public-use rights. explain the nature and evolution of unique rights
Consequently, the special rights accorded possessed by ocean- and inlet-front property
waterfront property owners must be balanced owners. These rights, often referred to as littoral
with such public rights as boating, swimming rights, have not been explored as thoroughly as
and fishing. riparian rights — a term that is often associated
Identifying these special private rights of with landowners along rivers and sounds.
use is not always easy and has been the source of In this first issue of Legal Tides, Joseph
controversy since the founding of our nation. Nor Kalo, Graham Kenan Professor of Law at the
is all waterfront property treated the same. The University of North Carolina Law School, and
precise nature and scope of the private rights Walter Clark, Coastal Communities and Policy
may vary depending on whether the waterfront Specialist at North Carolina Sea Grant, will begin
property is oceanfront, inlet front, soundfront, the journey by explaining the origin and evolution
riverfront or lakefront. of littoral rights. In the next issue we will examine
As we search for ways to respond to storms, how “artificial” additions to shorelines impact
coastal erosion and increasing demands upon shoreline ownership and littoral rights.
A Collaboration of North Carolina Sea Grant, UNC School of Law and UNC Coastal Studies Institute
Introduction Who Is a littoral
For much of North Owner
Carolina’s history, the The key to any
rights of oceanfront discussion of littoral rights
property owners have is an understanding of
been loosely defined. This who is a littoral owner.
was due in part to the It is not necessarily true
slow pace of development to assume that anyone
of much of the state’s owning “oceanfront” or
oceanfront shoreline. “inlet front” property is a
Consequently, there were littoral owner with littoral
fewer opportunities for rights. Whether someone
conflict between oceanfront is a littoral property owner
property owners, the state depends upon whether
and the general public. the ocean or inlet forms
All that changed in the at least one boundary of
latter half of the 20th the property. In order to
century. In the past 50 be a littoral owner, the
years, the barrier islands oceanfront owner’s title
and ocean beaches have must run to the mean high
seen a marked increase in development. This For much of North Carolina’s history, water mark.3 If the mean high water mark is not
has occurred in conjunction with severe erosion the rights of oceanfront property owners have been one of the legal boundaries it is not littoral property
caused by hurricanes, nor’easters, sea level rise and loosely defined. This was due in part to and there are no littoral rights associated with it,
man-made activities, such as dredging and building even if the land appears to front the ocean or inlet.
the slow pace of development of much of
jetties. If the property is littoral, then the property
the state’s oceanfront shoreline.
The waters of the Atlantic now are lapping at owner has the legal right of immediate and
the foundations of million-dollar oceanfront homes, direct access to the ocean. It is this feature that
condominiums, hotels and businesses. The result is in Shepard’s Point Land Co. v. Atlantic Hotel,2 commands the premium typically paid by investors
the demand that the state protect these investments listed the rights associated with the ownership of for oceanfront property. But, this right exists only
by re-establishing erosion-prone beaches through North Carolina waterfront property as: as long as the oceanfront property owner is a
beach nourishment projects or by permitting • The right to be and remain a littoral or littoral owner. Therefore having and maintaining
owners of threatened structures to build protective riparian property owner and to enjoy the natural the mean high water mark as one boundary is
seawalls or otherwise harden the shoreline. In advantages conferred upon the land by its important to ocean- or inlet-front property owners.
light of these ongoing changes, it is timely and adjacency to the water;
appropriate to take a serious, detailed look at the • The right of access to the water, including littoral Ownership, Moving shoreline
littoral rights of oceanfront property owners and a right-of-way to and from the navigable part; The ocean and inlet shorelines are in constant
how those rights are balanced with the rights of • The right to build a pier or “wharf out” motion, expanding and contracting through natural
other littoral owners and the needs of society. to the navigable water, subject to any state cycles and processes. The high water mark may
regulations; be in a very different location from the day the
The Origin of littoral Rights • The right to accretions to land; and property is purchased to a few weeks or years
The concept of littoral and riparian rights • The right to make reasonable use of the later. Traditionally, title to the area landward of the
is a product of evolving 19th century American water flowing past the land. mean high water mark is in the oceanfront owner
jurisprudence. At the beginning of this evolution, Coastal conditions have changed in the 100 and title to the area seaward of that mark is held
waterfront property owners possessed no special years since the Shepard’s Point decision. With by the state as public trust submerged lands.4 So
rights.1 these changes have come new court decisions how is an ocean property line determined in this
Owning waterfront property made it easier to and laws affecting the rights of coastal property dynamic environment? As a general common law
gain access to the water, but access could be cut off owners. Consequently as we begin the 21st rule, when natural cycles and processes result in
by the state at any time without compensation century, two important questions arise: additions (accretions) to the beach, the increase
By the beginning to the 20th century, this had • Does the traditional list of rights belongs to the oceanfront owner to whose shoreline
completely changed with the law supporting the enumerated in Shepard’s Point accurately describe the accretions adhere; if the cycles result in erosion
view that waterfront property owners possessed the rights of ocean- and inlet-front property of the shoreline, then the oceanfront owner sustains
unique and valuable rights of which they could not owners in North Carolina today? the loss. In other words, the oceanfront property
be deprived without compensation. • Have modern uses of oceanfront property owner’s boundary is never fixed, but is always a
In 1903, the North Carolina Supreme Court, given rise to any new rights? shifting, ambulatory boundary line — moving as
Page 2 • LeGAL TIdeS • Winter/Spring 2005
natural coastal processes change the contours of 77-20(a) create a uniform approach to all natural seaward boundary regardless of changes in the
the shoreline and the intersection of the mean high changes in ocean shorelines. NCGS 146-6(a), contours of the shoreline and regardless of whether
water mark with the shore. states: the changes are the product of processes of erosion
If any land is…by any process of nature… and accretion or the result of avulsion.
exception to Common law raised above the high water mark of any navigable Standing alone section 77-20(a) may appear
Traditional common law rules do not always water, title thereto shall vest in the owner of that inapplicable to inlet front property because
insure that the mean high water mark will remain land which, immediately prior to the raising of the technically such property does not “adjoin the
the ocean- or inlet-front boundary. If the accretion land in question, directly adjoined the navigable ocean.” However, a 1998 legislative change in
or erosion of the shoreline is slow and gradual, the water… section 77-20 suggests that the word “ocean”
mean high water mark (as noted above) moves Any “process of nature” includes hurricanes, now includes “ocean inlet waters.” In 1998, the
with those changes. But the traditional common nor’easters, wind and wave action and is not General Assembly amended section 77-20 by
law rule is different when shoreline change is the limited to slow, gradual additions to the shoreline. adding subsections (d) and (e). These sections
result of a sudden, dramatic shift brought about Therefore, this statute clearly changes the common define the term “ocean beaches” and affirm the
by the hammering of waves from a hurricane law avulsion rule governing additions to shore- public’s common law right to use ocean beaches.
or nor’easter. In legal terms this shift is called lines. Section 77-20(e) defines “ocean beaches” as “the
avulsive change. According to common law, But what happens when a storm erodes 50 area adjacent to the ocean and ocean inlets.” This
when sudden, powerful and natural forces cause a feet of the shoreline? Under the traditional rule, suggests that the General Assembly intended the
sudden and perceptible change in the contours of the property line would be where it was before the term “ocean” as used in section 77-20(a) to include
the shoreline, the seaward boundary of ocean- or storm — 50 feet out in the water and the ocean- or ocean inlet waters.
inlet-front property does not move. inlet-front owner would own 50 feet of submerged There is no reasoned basis to distinguish
So what would this mean if, for example, land. But this traditional rule no longer applies ocean- and inlet-front property, especially since
during a storm fifty feet of sand is added to to oceanfront property. NCGS 77-20(a) states in the tidal waters of the Atlantic flow past each, both
the beach? According to the traditional rule, plain, unambiguous language that the “seaward are subject to the same storm and wind action, and
the oceanfront owner would not own the new, boundary of all property..., which adjoins the the demarcation between the two is a somewhat
expanded 50 feet of beach. Instead, the owner’s ocean, is the mean high water mark.” In other arbitrary determination of where the ocean ends
oceanfront property line would remain where it words the mean high water mark remains the and the inlet begins.5 Therefore a uniform rule
was before the storm. In such a circumstance, the should be applicable to ocean- and inlet-front
ocean no longer would be the seaward property The ocean and inlet shorelines are in constant property.
boundary and technically, the owner no longer motion, expanding and contracting through natural If section 77-20(a) is not applicable to inlet
would be a littoral owner and would not possess cycles and processes. The high water mark may be front property, additions to the shoreline would
any littoral rights. So, according to traditional belong to the owner of the inlet front property
in a very different location from the day the property
common law, avulsive changes could result in based on subsection 146-6(a) which does not
the loss of arguably the most valuable feature is purchased to a few weeks or years later. distinguish between property adjoining the ocean
of oceanfront property and property adjoining inlets.
ownership — direct contact Arguably, however, if 77-20
with (and access to) the (a) does not apply, an avulsive
ocean. The addition to the loss of shoreline might leave
shoreline would belong the inlet property owner
to the state and be a part with title, subject to public
of the state’s public lands trust rights, to newly created
consequently destroying the submerged lands.
littoral owner’s right of direct
access to the ocean. The loss of all littoral
land and Rights
legislative Changes, Sometimes gradual
Traditional Rules erosion, a hurricane, or a
Fortunately, state combination of both may
legislation in the 20th century result in ocean or inlet waters
discarded the avulsion rule moving over and covering an
with respect to additions to entire lot. Unless the ocean-
the shorelines of ocean- and or inlet-front property owner
inlet-front property. North can get permission from the
Carolina General Statutes state to fill and recover the
(NCGS)146-6(a) and land, title is likely lost with
Page 3 • LeGAL TIdeS • Winter/Spring 2005
the “former” owner losing all littoral rights. The policy now exists to provide ocean- and inlet-front Private Rights to the Natural and Nourished Dry
owner of the next piece of property landward owners some assurance as to the seaward boundary Sand Beaches of North Carolina, 78 N.C.L.Rev.
of the submerged land becomes the oceanfront of their property. Considering continuously shifting 1869 (2000).
owner and is vested with littoral rights. This is ocean and inlet shorelines, this is important, not 4
A. Daniel Tarlock, The Law of Water
known as the rule of promotion.6 If, in the future, only for oceanfront owners, but also for state and Water Resources, sec. 3:35, pp 3-55 – 3-59
there were natural additions to the shoreline, managers as they attempt to ascertain the rights (2003).
those additions would belong to the new littoral of the public to use one of the state’s greatest 5
The demarcation between the ocean
owner not the former one. The lot once lost is not resources — our ocean beaches. and inlet is determined by the COLREGS
resurrected by new additions to the shoreline. (International Regulations Preventing Collisions
end notes at Sea). See Advisory Opinion concerning
John Lewis, A Treatise of the Law of ownership of dredged fill and accretions on
As the 21st century begins and North Eminent Domain in the United States, sec. 94, p. Bogue Banks at Bogue Inlet, Office of the
Carolina confronts the challenges of increased 116-17 (1907). Attorney General, September 15, 2003, n.1.
development along erosion-prone beaches, 2
132 NC 517, 44 SE 39, 46 (1903). 6
North Carolina law is not totally clear on
the legal issues of determining private rights 3
It should be noted that ownership of the dry this issue. It appears that the state follows the
and delineating state responsibilities become sand beach does not mean the owner has a right to majority common law rule that states that once a
increasingly complex. In some instances, the exclude the public from the privately owned dry waterbody moves across the fixed boundary of
complexity of the issues has compelled the sand beach lying above the mean high tide line. The non-littoral land that land is promoted to littoral
state to move beyond the traditional common State of North Carolina contends that the public status and fixed boundary no longer exists.
law in search of uniform answers. Determining has the right to use all the natural dry sand beaches Gould on Waters, section 255, p. 308 (3d Ed
ownership boundaries for ocean and inlet of the state. The validity of this contention is the 1900). Application of the promotion rule is
shorelines is one of these instances. With the subject of ongoing litigation. See Joseph J. Kalo, consistent with the reading of relevant statutes
introduction of state legislation, a fairly consistent The Changing Face of the Shoreline: Public and (NCGS 77-20) and sound policy.
In the next edition Want to Know More?
In the next issue of Legal Tides we will For an in-depth legal analysis of the issues covered in this and the next edition of Legal Tides,
examine the effect of artificial additions to the look for the upcoming article in the North Carolina Law Review by Joseph J. Kalo. The article
shoreline on property ownership and littoral is titled North Carolina Oceanfront Property and Public Waters and Beaches: The Rights of
rights. With beach nourishment projects Littoral Owners in the 21st Century. It will appear in Volume 83, Issue 6 of the North Carolina
becoming more commonplace as a means Law Review to be published in early 2005. For additional reading on this subject, see Joseph
of protecting oceanfront property, knowing J. Kalo, The Changing Face of the Shoreline: Public and Private Rights to the Natural and
the impact of artificial additions to property Nourished Dry Sand Beaches of North Carolina, 78 N.C.L.Rev. 1869 (2000).
ownership and littoral rights is critical.
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