Joseph William Singer
Bussey Professor of Law, Harvard Law School
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State did not dispossess owners and thus did not "take' lands in violation of the constitution merely by asserting ownership
The Texas Supreme Court affirmed its ruling that the border between state-owned submerged lands and private lands along the coast is the "mean higher high tide line" or the mean location of the high tide line over the regular tidal cycle of 18.6 years. Porretto v. Tex. Gen. Land Office, 2014 WL 2994436 (Tex. 2014). In various ways, agents of the state of Texas has acted so as to claim public rights in property that is on the "private" or landward side of the line. The Texas General Land Office (GLO) claimed that it owns lands that the Texas Supreme Court says are privately owned; that office also requested that tax records be changed to indicate state ownership of those lands. These statements have made it harder for private owners to sell those lands. However, since the GLO ended its bid to change the tax rolls to claim public ownership of those lands and, "even though the [GLO] lawyers' statements injured the [landlowners]", the state did not actually dispossess the owners and therefore did not "take" their property without just compensation in violation of the takings clause.
The court also held that the line separating public and private ownership does not change because of state renourishment of beaches. "The State does not gain the dry beach by dumping sand on it,, nor does it lose what was before the wet beach, even if the renourishment pushes the MHHT [mean higher high tide] line farther seaward, which is usually the purpose of renourishment."
See also: Takings, Title Issues, Trespass, Water Rights, July 2014
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