Daily Development for Thursday, March 4, 2004
by: Patrick A. Randolph, Jr.
Elmer F. Pierson Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin Kansas City, Missouri dirt@umkc.edu

WATERS AND WATER RIGHTS; ACCRETION; AVULSION DISTINGUISHED: Beachfront land that grows because the government has pumped sand from elsewhere is created by avulsion, not accretion, and does not become owned by the abutting landowner.

City of Long Branch v. Liu, 363 N.J. Super. 411, 833 A.2d 106 (Law Div. 2003); February 3, 2003.

Property owners owned land with extensive frontage along the ocean. They did not own any riparian rights to lands beyond the main high water mark. Because of steady erosion of lands fronting the ocean in that area, the municipality engaged in a project together with other governmental entities to widen the beach abutting the property owners' land. To do so, "sand was taken from below off-shore waters and, in effect, thrown westward onto the existing shoreline, ultimately, of course, extending that shoreline to the east." About two years after the project was completed, a Declaration of Taking was filed. The property owners argued that "the additional beach resulted from natural accretion, in part, and in part because of the government's program to replenish beaches." Under that theory, they maintained that the property became theirs by operation of law. They also sought to place the burden on the State "to distinguish that portion of the beach created by natural accretion f rom that portion created as a result of the government's replenishment program."

"Accretion is defined as the gradual, imperceptible buildup of land caused by natural forces." In New Jersey, under some circumstances, even land that is built up because of an artificial structure or when action by the government played a part (even a significant part) has been deemed to be the consequence of accretion. The property owners pointed to some out-of-state cases that would seem to "have awarded title to the adjacent upland property owners in circumstances very much similar to those before the court in this matter."

Notwithstanding the prior cases, the Court held that New Jersey law "is to the contrary." It believed that the "'new beach' area resulted from avulsion, not accretion. Avulsion is described as a forceful detachment or separation, a sudden removal or addition to land caused by either natural or manmade force." Land taken by avulsion remains in the ownership of the one from whom it is taken. Consequently, the owner of the property to which the soil or sand shifts by avulsion does not become the owner of that land. The new sand was taken from part of the public trust and, as such, the Court determined that it was the State of New Jersey, not the property owners, who owned the property. Under the Public Trust Doctrine, "the ownership, dominion, control and/or sovereignty over lands flowed by tidal waters rests with the State in trust for the public. Such ownership cannot be taken away either by adverse possession or prescription. Indeed, such ownership continues to extend to l ands that were previously tidal flowed, even if same are now upland, if the additional dry lands were created by action of man, even if at the direction of the State."

Comment: It is hard to imagine an opposite result where the purpose of the State was to create public property.

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