Wednesday, June 3, 2009

Texas Beaches and Property Rights, Part 2

Following Hurricane Ike the Texas Land Commission announced that many beachfront homes were now sitting on "public property". The owners of those homes would be forced to cede their property to the state.

When the home owners complained about this injustice, defenders of the Texas Open Beaches Act (TOBA) responded that the home owners had been warned about this possibility. In other words, since the home owners have been warned that an injustice might occur, they have no reason to complain when that injustice does in fact transpire.

Defenders of TOBA also argue that tax dollars are used to provide infrastructure--such as roads, water, and sanitation--for the beachfront properties. Therefore, the argument goes, if "the public" must pay for such things, "the public" has a right to beach access.

This amounts to nothing more than using one violation of property rights to justify another violation of property rights. That is, since tax payers are compelled to finance infrastructure, it is justified to force beachfront property owners to cede their property to the state. There is no rational justification for this gross injustice.

The owners of beachfront property are as much a part of "the public" as anyone else. Yet, they are forced to play the role of sacrificial victims simply because of the consequences of a storm. They have not violated the rights of anyone, and yet they are now declared criminals.

The long term solution is to privatize the roads, water, and other infrastructure. If individuals wish to build along the ocean, they have a right to do so. They do not have a right to force others to pay for roads, sanitation, or repairing their homes. The state government should limit itself to its proper function--protecting individual rights. This applies to taxpayers as well as beachfront property owners.

Some may argue that because the shoreline has shifted, and some beachfront property is now underwater, that land should now revert to the state. But this ignores a principle in common law--riparian rights. According to Wikipedia:

Riparian rights (or simply riparian rights) is a system of allocating water among those who possess land about its source. It has its origins in English common law. Riparian rights exist in many countries with a common law heritage, such as Canada, Australia, and states in the eastern United States. Under the riparian principle, all landowners whose property is adjacent to a body of water have the right to make reasonable use of it.

Riparian rights include such things as the right to access for swimming, boating and fishing; the right to wharf out to a point of navigability; the right to erect structures such as docks, piers, and boat lifts; the right to use the water for domestic purposes; the right to accretions caused by water level fluctuations. Riparian rights also depend upon "reasonable use" as it relates to other riparian owners to ensure that the rights of one riparian owner are weighed fairly and equitably with the rights of adjacent riparian owners.

While "reasonable use" is a vague term, it is generally taken that a riparian owner may not interfere with the right of other riparian owners to use their property. For example, one owner may not construct a dock that extends onto the property of another owner.

More importantly in the present context, it is often recognized that the owner of land adjacent to a waterway also owns the land under the water to the middle of the waterway. For example, the Michigan Supreme Court has recognized this principle as applying to both rivers and lakes (with the exception of the Great Lakes).

In general, this is an appropriate and just principle. However, I would argue that extending riparian rights to the middle of a large body of water (such as the Great Lakes or the oceans) is not proper. The owner of the adjacent property has no legitimate claim to the land miles from shore, unless he has taken action to enhance the value of that property. Exactly where the line should be drawn is not the issue here--the principle of recognizing and protecting property rights is.

Thus, even if the land owned by beachfront property owners is submerged by storms or erosion, riparian rights recognize ownership of that land. Use of that land may be more difficult and expensive, but that fact is not a legitimate concern of the state. The state's only proper role in this issue is to identify, define, and protect the rights of property owners.

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