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.

Texas Beaches and Property Rights, Part 1

This November Texans will have an opportunity to express their support for property rights. An amendment to the Texas Constitution is on the ballot, and while the outcome is not likely to have any significant short-term impact, Texans can make a significant statement. Last week, legislators approved a ballot measure that will make public access to Texas beaches a part of the state Constitution.

Such access is currently guaranteed under the Texas Open Beaches Act (TOBA), which defines the area between the permanent vegetation line and the water as "public property". As a result, when storms and erosion move the vegetation line, private home owners can suddenly find themselves living on "public property" and they are forced to vacate their homes.

Supporters of TOBA claim that the public has a "right" to beach access. But they fail to explain the source of this alleged right, or why that "right" supersedes the rights of those who rightfully own the property. The web site for a group called the Texas Open Beach Advocates (TOBA II) tries to make an argument based on common law:

The late Bob Eckerdt saw what development, and the power of development money, could do to undermine the ability of the average citizen to enjoy this most basic and traditional right to some of the best of God's creation. He wrote the Texas Open Beaches Act. This was not a new law, but only served to codify what was already common law. In other words, the beaches were highways that the public used since "time immemorial." Nobody could block off the beaches or hinder access to them the same way landowners could not block access to a cattle trail, or other highway that the public had always used for trade, commerce, and transportation.

This might seem to be a reasonable argument. On the surface, it doesn't seem to differ from John Locke's identification of the source of property rights in The Second Treatise on Government:

Though the earth, and all inferior creatures, be common to all men, yet every man has a property in his own person: this no body has any right but himself. The labour of his body, and the work of his hands, we may say, are properly his. Whatsoever then he removes out of the state that nature hath provided, and left in it, he hath mixed his labour with, and joined it to something that is his own, and thereby makes it his property.

Mixing one's labor with material objects, according to Locke, gives that object value. An apple on an unowned tree is of no value until it is picked, and the individual who picks that apple gives it value by his labor. That apple becomes the picker's by virtue of his labor. The same holds true of any unowned property. The mineral resources of Mars, for example, are sitting there waiting for anyone who can use them. The individual who can figure out how to get those minerals owns them by virtue of his efforts.

Superficially, this is the argument put forth by TOBA II--"the public" has long made use of Texas beaches, and therefore, "the public" owns those beaches. But this argument fails on two counts.

First, there is no such entity as "the public". "The public", in this context, consists of all Texans. To say that all Texans own the beaches is to say that nobody owns the beaches.

Second, use alone is insufficient to claim ownership. Using a beach adds no value to it--a day of frolicking in the sand does not bring additional value to that beach. (Indeed, a consistent environmentalist would argue that the value of the beach has been degraded by man's use of it.) If use alone were a sufficient claim to ownership, then I could claim ownership of the golf course I play, or the store I patronize, or even the Internet.

The owners of beachfront property are the victims of a gross injustice. Texans can take a step towards rectifying that situation by rejecting the amendment.

Ticking Off My Neighbors

On Saturday I received a letter from the City of Houston stating that an application had been received to designate my subdivision as a "Prohibited Yard Parking Requirement Area". If the designation is awarded, anyone who parks a car in their yard will be subject to fines of $150 per day.


When the ordinance allowing such designations was being considered earlier this year, former Councilmember Rod Todd was quoted as saying:

When you, basically, don’t apply the ordinance formally across the city, it’s going to have the tendency to pit neighbor against neighbor.

At the time I wrote:

I agree that this ordinance could create a lot of animosity in some neighborhoods. Some people do not appreciate having their property rights violated. Some people actually get upset when others try to dictate their actions. Some people take such things very personally, and would not be very kind to neighbors who want to create a mini-fiefdom.

I am one of those people. I have filed a protest regarding the designation. Below is a draft of the statement I will deliver at the hearing:

I have been a resident of Shenandoah for nearly twelve years. During that time I have added on to my house, modernized most of the interior, and spent thousands of dollars on landscaping. My yard is mowed weekly by a professional landscaping company. I mention these facts simply to establish that I am not an absentee landlord and in fact, am quite concerned with protecting and improving the value and appearance of my home.

Like those who filed this application, I abhor neighbors who do not seem to care about the appearance of their yard or park automobiles in their yard. It detracts from the appearance of my neighborhood, and cannot have a positive impact on property values. In other words, the actions of my neighbors may have a negative impact on me.

Despite this fact, I adamantly oppose designating Shenandoah as a Prohibited Yard Parking Requirement Area. My opposition is based on two interrelated reasons.

First, this is not a proper function of government. The proper purpose of government is to protect our rights, including our property rights. For the city to tell me, or my neighbors, what we can do with our property violates our property rights. This ordinance criminalizes actions that pose no physical threat to others and does not violate the rights of others. If disliking a particular action is justification for criminalizing that action, then a case could be made by someone to ban virtually everything.

In short, for the government to use force against the citizenry in this manner is immoral.

Second, Shenandoah has deed restrictions, which are voluntary, contractual limitations on how property owners may use their property. If the residents of the neighborhood wish to prohibit parking on the lawn, amending the deed restrictions provides a non-coercive, contractual method for doing so.

Some may claim that the end result would be the same. I completely disagree. Our deed restrictions are a contract between the property owners. That contract provides provisions for amending our agreement. The property owners have accepted the contract, including the provisions for amendment. It is a private and voluntary agreement between property owners, and as such, respects the rights of each individual involved.

The parking ordinance however, is an act of government. Government is an agent of force--its edicts are imposed by threat of fines, imprisonment, or both. There is nothing voluntary or contractual about this ordinance--it is an act of force. And as such, it violates the rights of each individual involved.

Those who see no distinction between deed restrictions and this ordinance do not see the difference between the voluntary and the coercive, between the contractual and the mandatory. They see no difference between private agreements and government mandates.

To be clear, if a proposal were raised to amend the deed restrictions to prohibit parking on lawns, I would be a vocal supporter. I do not like to see cars parked in yards, but the ends do not justify the means. There are private, non-coercive means to address things we do not like in our neighborhood. More importantly, nobody has a moral right to use government force against his neighbors simply because he dislikes their actions.

I am sure that the above will tick off my neighbors. I guess that is only fair, since they have managed to tick me off.