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What Happens When Your Land Becomes the Sea?

The Blizzard of 2013 reportedly topped the charts as one of the five worst snowstorms in New England history.  While Mother Nature dumped over two feet of white powder throughout the region, she also reclaimed some of her territory along the coast.  Plum Island in Newbury, Massachusetts has experienced the effects of this coastal erosion for a number years, but the Blizzard of 2013 delivered the final blow as powerful waves caused the collapse of two oceanfront properties into the sea.  Some homeowners on Martha’s Vineyard have resorted to the extreme measure of moving their entire homes inland in the hopes of escaping the erosion, if only temporarily.  But what happens to the properties of homeowners who cannot afford to take such drastic measures?  This article addresses the legal issues surrounding the morphing boundaries of waterfront lots in an era where nature is increasingly brandishing its power to transform the coastline.

It is well established that when the boundary between the ocean and the land changes, the waterfront property boundary ordinarily follows the changing waterline.  If erosion gradually wears away soil and causes the waterfront property to be submerged, the owner simply loses title to that land.  If the entire lot submerges into the ocean, the landowner’s interest is extinguished entirely.  However, if a portion of the lot remains above water, the landowner retains that diminished interest. 

While this may seem like a harsh rule, a landowner on the opposite side of the spectrum may unwittingly gain additional acreage to his lot as a result of accretion – the counterpart to erosion defined as the gradual accumulation of soil, clay or other sedimentary material.  In the case of a landowner whose lot is greatly diminished but still retains a portion of the property, it is entirely possible that his land could expand by future accretions. 

Sometimes accretion occurs as a result of man-made forces.  In most circumstances, the accretion becomes part of the waterfront lot.  The only exception to this rule is when government action causes the build-up of land that is considered a necessary aid to navigation.  For example, the government may construct a jetty adjacent to an inlet to prevent the drift of beach sediment into the inlet.  The jetty may be considered a necessary aid to navigation because it allows the easier passage of vessels to and from the ocean. 

The accreted land must be considered necessary to aid the navigation in order to belong to the government.  For example, if the government dredges an inlet to allow for passage of vessels, beach sediment and other natural materials (known as spoils) excavated from the ocean floor are typically deposited on adjacent waterfront lots.  Massachusetts courts have held that dredging an inlet is a necessary to aid to navigation, but the spoils accreted onto adjacent waterfront properties are merely incidental to the dredging and do not serve as an aid to navigation.  Therefore, the accretion belongs to the waterfront landowners.

The accretion cannot merely hold some conceivable relationship to navigation, it must be necessary. Otherwise, the Commonwealth could simply dredge the entire Massachusetts coast, piling up sand and rocks just below the line of private ownership and divest all Massachusetts landowners of the waterfront nature of their property without affording any compensation or recourse for their loss.  The waterfront nature of property is often a substantial, if not the greatest, element of its value.  The burden on the government to show the necessity of depriving a waterfront owner of this value is not easily satisfied. 

As you can see, the considerations when owning a waterfront property are many.  The boundary line when purchasing the property may change due to natural or man-made causes and the landowner generally has no opportunity for objection.  While one property owner may stand to gain considerable value by accretions to his lot, another may suffer the dire consequences of erosion like those on Plum Island who lost their homes this winter.