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Actually it is an open area of dispute and can be decided either way. The law in NC would appear clear enough though it should go in the open beach direction.
Here is an opinion piece run in the NY Times a few years ago.
That's an "opinion" piece. The only SCOTUS rulings addressing this issue favor the land owner. Privately owned land CANNOT be taken for public use without just compensation. 5th Amendment.
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NC would seem to have a well established custom of access to the beach and would seem that the law supports that position as put forth in the appellate decision. It would however be possible for a conservative leaning court to go the other way. That however would likely get reversed if it gets appealed to the federal courts.
I doubt it. The PLF will take it to SCOTUS, if necessary, and the SCOTUS ruling precedents favor the land owner due to the 5th Amendment's "takings" clause.
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The issue of compensation is actually inappropriate as the custom is of long standing and the public right of way well established.
There is no recording of a public easement or public right of way, therefore none has ever been legally established. That may have been a critical mistake.
It has only ever been an "opinion" that the public can use someone else's privately owned beach in NC, as the entire beach seaward of the high water mark (the wet sand beach) is public, no one is taxed on that, and it can be used freely by anyone.
I agree with the other poster that the land seaward of the barrier dune should never have been designated and sold as private property. But it was, with the state's, county's, and municipality's stamp of approval and fees paid to them accordingly and with every subsequent sale of the property. Likewise, annual property taxes are assessed on the privately owned land. Given all of that, none of the governments involved in the dispute have the right to take privately owned land for public use without just compensation. It's an indisputable 5th Amendment Constitutional Right.
Several things need to happen to make it more palatable for land owners to voluntarily share their privately owned beach. Naming just 3, to start...
1) Release owners from any and all legal liability for injuries or loss that occurs on their privately owned land that is used by the public, regardless of any "attractive nuisance" clause.
2) Compensate land owners for the loss of their exclusive use of their own privately owned land.
3) Stop taxing land owners for land that is used for free by the public.
No. There's already a SCOTUS ruling establishing the fact that a town/state requiring a public use easement on privately owned property is committing a "taking" and must compensate the private property owner for that taking.
Furthermore, NC law has established the fact that even when one does voluntarily allow the public to use their privately owned land, said members of the public are legally defined as tresspassers for liability purposes, and a property owner can get sued for any injuries or damages that occur on their property due to the beach and ocean being "attractive nuisances." That's why many property owners get so disgruntled when beachgoers dig big holes in the sand and leave them there without filling them back in. If someone carrying all their beach gear doesn't see the hole and falls and breaks their leg, arm, etc. Guess who gets sued?
That's established by the observed mean over an 18.6 year period (NOAA rounds that up to 19 years). Privately owned littoral property erodes or accretes over long spans of time, or due to a natural disaster.
That is not my understanding, if a property owner has allowed access over time through a road or other similar use that use becomes permanent. I believe it's called a prescriptive easement, the term Common Use sounds similar as referenced in the article you linked but it was from back in 2007.
Also some states require that certain property owners provide access to the beach. High water mark will continue to be a moving definition, particularly in the decades to come.
Here the court holds that sand added to a beach does not belong to the property owner even though the deed reads "to the mean high water line".
I would also note that recording of an easement is not and has never been necessary. That is all the way back to English Common Law. It is the fact of the usage that controls.
That is not my understanding, if a property owner has allowed access over time through a road or other similar use that use becomes permanent. I believe it's called a prescriptive easement, the term Common Use sounds similar as referenced in the article you linked but it was from back in 2007.
That's not how SCOTUS sees it. /shrug
Could be because specific parties aren't involved and taking land for public use has to be justly compensated according to the 5th Amendment.
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Also some states require that certain property owners provide access to the beach.
"Certain" property owners? Are you sure about that? SCOTUS has already ruled that such is considered a "taking" and has to be justly compensated.
There are some states in which none of the sandy beach land is privately owned. In Oregon and Washington, the publicly owned beach goes all the way up to the vegetation line. That's what NC should have done.
PLF has taken cases like this before, even all the way to SCOTUS if necessary, and they usually win. It'll be interesting to see where this goes.
Here the court holds that sand added to a beach does not belong to the property owner even though the deed reads "to the mean high water line".
That is true. Any publicly-funded beach renourishment typically changes the privately owned property boundary to that of where the landward boundary of the renourishment project ends.
Why? Because such a renourishment project is typically (though, not always) publicly funded. Likewise, the public shouldn't have the right to use privately owned land which has been privately paid for and on which property taxes are annually assessed on the owner.
In absence of a publicly-funded project, any dry sand beach accretion belongs to the littoral property owner, without cost.
That gets kind of fuzzy, though... What's currently happening in a NC town is that a public beach renourishment project is slated to begin within a certain area, but instead of the public sharing the cost equally via a certain percentage added to everyone's tax bill, the affected oceanfront landowners are being asked to pay several thousands of dollars more than everyone else for the project, while simultaneously being expected to give up their littoral property owner's rights at the point of the project's landward boundary.
That is true. Any publicly-funded beach renourishment typically changes the privately owned property boundary to that of where the landward boundary of the renourishment project ends.
Why? Because such a renourishment project is typically (though, not always) publicly funded. Likewise, the public shouldn't have the right to use privately owned land which has been privately paid for and on which property taxes are annually assessed on the owner.
In absence of a publicly-funded project, any dry sand beach accretion belongs to the littoral property owner, without cost.
The public right however overturned the plain language of the deed.
But the issue is and remains that the public has had the right to pass for about recorded history. And that is even inscribed in NC law. And again a conservative court may overturn it. But the long term outcome will be that it ends up a public right.
The Texas statute appears about right. Too bad we cannot make it universal. I wonder if TX had to pay the beach front owners.
Texas High Court Decision...
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The court holds that a state-imposed public easement over private beachfront property is not a compensable taking, and the risk that some property would be lost to the sea was assumed at purchase. After hurricane Alicia in 1983 and the storm tides in 1988, the private beach properties were left partially or completely seaward of the line of vegetation and were subject to the public's beach easement. The court first holds that a state beachfront act merely codified the public's common law right to use dry beaches, and by adopting the act, the state did not create an easement that the public did not already own at common law.
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The public right however overturned the plain language of the deed.
What public right? The public already owns the land from the high water mark and seaward. The public does NOT own privately owned land sanctioned and taxed as privately owned land by municipality, county, and state governments.
We'll see what happens, but SCOTUS has already ruled for private property owners in similar cases.
There is no legal easement recorded on the deed or title. Public land is seaward only of the legally surveyed and recorded high water mark.
Nor on mine, but it is there on all real estate, on all sides of the estate. For many purposes.
And get this, I pay tax on property I cannot do anything with.
It is 10 x 390 feet at the street( I cannot put my fence right on the edge of the street, but boy do I want to) and 5x 190 feet on the sides and because utilities run at the back of the property, another 10x 480 feet
It is found in your municipality codes(city or county codes)
What public right? The public already owns the land from the high water mark and seaward. The public does NOT own privately owned land sanctioned and taxed as privately owned land by municipality, county, and state governments.
We'll see what happens, but SCOTUS has already ruled for private property owners in similar cases.
sorry but you need to reread the case. The TX Supreme Court clearly stated a couple of things. One is that the public easement was there by long usage and overcame any private property rights. It was simply codified into the written law by the statute. And that was the land between High mean and the vegetation line. second that no compensation was due as the right was there when the property was purchased.
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