Kadir van Lohuizen / NOOR for New York Times Climate change / sea-level rise in Fiji The shoreline of Vunidoloa is heavily eroded due to the rising waters. Vunidoloa is situated on the Natewa Bay on Viti Levu, Fiji's main island. Vunidoloa has 140 inhabitants and frequently floods due to the rising waters. The situ ation became so precarious that the government decided to relocate the village. Unfortunately the site was poorly designed and is eroding before anyone moved there.

Asharoken, N.Y. January 10, 2017 — Swayed by public opinion, the Incorporated Village of Asharoken (“Asharoken”) opted out of a federal beach nourishment plan implemented by the Army Corp of Engineers (“ACOE”) in order to prevent the general public from accessing the Villages’ private beaches.

Asharoken is a narrow isthmus connecting the Village of Northport on the ‘mainland’ of Long Island with the hamlet of Eatons Neck, which is part of an unincorporated area located in the Town of Huntington. Asharoken is bordered by Huntington Bay, Northport Bay, and Eatons Neck. The eastern coast of Asharoken fronts along the Long Island Sound.

Asharoken Avenue, the village’s main road, is the only land evacuation route for village residents and about 1,400 non-village residents of Eatons Neck.  Without this land bridge, Eaton’s Neck and Asharoken would both be cut off from the mainland.

Asharoken experiences moderate to severe beach erosion on the areas fronting the Long Island Sound. This erosion is caused by storm-induced waves and wave run-up from hurricanes and nor’easters. The village has experienced damages from multiple storm events, most recently Hurricane Sandy in October 2012.

In spite of the known safety risks of their precarious evacuation route, the Asharoken Board of Trustees passed a resolution last Tuesday, effectively opposing a $20 million dune restoration project because of the federal government’s mandate for public access to the beaches when taxpayer dollars are utilized. In order to receive funds for the beach nourishment project, Asharoken would be required to add five public walkways to access the beach and five public parking areas at half-mile intervals along the project’s 2.4-mile stretch along Asharoken Avenue.

Despite a history of rising sea levels, the Asharoken Trustees capitulated to resident outcry over the potential loss of their private beach rights rather than balance their decision on the public health, safety and welfare of the Village and Town residents.

Only time will tell if this game of Russian roulette ends well.

aid157119-728px-Install-Posts-in-the-Water-for-a-Dock-or-Pier-Step-1  In New York, as a general rule, the touchstone of riparian rights has been the ownership of land touching a navigable waterway. See Bromberg v. Morton 64 AD2d 684 [2d Dept 1978].  As a result, unless expressly reserved by deed, if a waterfront lot is partitioned, any resulting lot that no longer physically touches the water  becomes non-waterfront property and loses its riparian rights.  Durham v. Ingrassia, 105 Misc2d 191 [Sup Ct., Nassau County 1980].

However, there is a developing line of case law in the Second and Third Departments holding that an easement that provides access to a navigable waterway provides the beneficiary of the easement with the riparian right to construct a dock equal to that of the actual waterfront owner.  See Briggs v. Donna, 176 AD2d 1105 [3d Dept 1991].

In Briggs v. Donna, the Third Department held that although there is no language in any of the plaintiffs’ deeds expressly granting a right to construct a dock, the plaintiffs’ dock at the foot of an easement was a “reasonable use” of the easement and incidental to plaintiffs’ access rights under the easement.  In short, the easement holder, a non-waterfront landowner, possessed the same riparian rights as the actual waterfront landowner to build a dock to navigable water.

Relying on this reasoning, the Second Department, in Monohan v. Hampton Point, 264 AD2d 764 [2d Dept 1999], reinforced the position that riparian rights extend from an easement to access navigable water.  In that case, the court held that, as a matter of law, the easement to access the water was sufficient to create the riparian right of wharfing out, and the subject dock located at the end of an easement leading to a navigational portion of the waterway was a reasonable and incidental use of the easement.  See also, Hush v. Taylor 84 AD3d 1532 [3d Dept 2011] Installation of a dock at the end of an easement of this type “is a reasonable use incidental to the purpose of the easement” and is, therefore, permissible).

Under the right circumstances, Courts have reasoned that the existence of an easement to the water’s edge would have been “without purpose” if it did not provide for the construction of a dock or pier to provide access to the waterway.

As a result, this line of case law seems to remove the need for landowners to actually own waterfront land in order to exert their riparian right of access by a dock or pier. Instead, an easement running to the shoreline includes the right to construct a pier or dock to obtain access to navigable water.

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Rising sea levels and erosion have caused severe damage to Asharoken Avenue, the only road into or out of the Village of Asharoken.  These conditions continue to endanger the lives and property of the people that live in Eatons Neck.  Yet, despite the potential benefits from a multi-million dollar federally funded project that will protect Asharoken Avenue, the Village remains steadfast in its attempts to wall off the beach to Village residents only, even though the waterfront protection project is being funded by state and federal taxpayer dollars.

Since colonial settlers arrived on these shores, the residents of Long Island have had their beach rights protected.  Now, it seems, in a  process that has lingered for years,  the Village is attempting to characterize this federal project as merely roadway protection with no provision for the general public to access the beaches, despite the fact that the general public is paying the lion’s share of the costs.

The proposed protection of Asharoken Avenue by the U.S. Army Corps of Engineers (Army Corps) is basically a beach renourishment project.   Federal law requires public access wherever the Army Corps performs beach protection or renourishment, yet many Village residents and beach lot owners remain vehemently opposed to public access to their properties.

As the sea level rises, the Village Trustees are now being forced to think about what needs to be done with ever increasing cries for help from homeowners and public officials.  The end result may be the Army Corps using the power of eminent domain to protect the public’s right to the shoreline.  It remains to be seen if the Village can have its cake and eat it, too.

beach erosionThree distinct common law rules deal with the capricious nature of the shoreline.  These terms are referred to in the legal community as accretion, erosion and avulsion.

“Accretion” is the term which applies to the gradual increase or acquisition of land by the action of natural forces washing up sand, soil or silt from the water course or seashore.  The opposite of accretion, “erosion” is the gradual washing away of land along the shoreline.  However, the sudden and often very perceptible change to a shoreline by natural forces is referred to as “avulsion.’  Hurricanes, nor’easters and other storms are typically credited with causing avulsion.

When land is increased by accretion, that “new” land becomes the property of the riparian land owner, while any removal of land due to the gradual effects of erosion or sea level rising becomes lost by the waterfront owner.  Unlike accretion and erosion, land lost by avulsion, remains the property of the land owner as if the water’s edge had not been moved.  Thus, the landowner has the right to reclaim and replenish this newly created underwater area without suffering the loss of title.  However, when land is created by avulsion, the landowner does not obtain any rights to the newly created land.  Shoreline boundaries increased by a beach re-nourishing project have been found to be a form of avulsion and, therefore, the additional beach area created does not become the property of the adjacent property owner.

These distinctions between the ever changing shoreline processes have significant legal ramifications in New York, because under the common law, an oceanfront land owner whose boundary line is described to include the “shore line” or the “high water line” automatically takes title to any new land above the mean high water mark added by accretion.  This is sometimes known as the ambulatory property line.[2]

This issue is at the forefront of pending litigation in the Village of West Hampton Dunes, Suffolk County New York.  In Strough v Incorporated Village of West Hampton Dune,[3] the Trustees of the Freeholders and Commonality of the Town of Southampton and the Town of Southampton commenced an action against the Incorporated Village of West Hampton Dunes and several individuals and entities that own real property located on the shore of Moriches Bay in Suffolk County.  The Trustees and the Town claim that two severe storms in December 1992 and March 1993, suddenly deposited millions of tons of sand on the bottom of Moriches Bay, which extended the beachfront property by several hundred feet.  Although the Trustees and the Town claim that the disputed land belongs to them because it was suddenly created by avulsion, the property owners claim that the disputed land belongs to them because it was slowly created over a long period of time by the natural process of accretion.  To date, neither the Town or the property owners have progressed beyond that point and this matter is still pending before the Court.

Thus, waterfront boundary lines and ownership remain as ever changing as the landscape they describe, and on Long Island, with its miles of shoreline, much can be lost or gained by the gradual movements of tiny grains of sand.


[1] See, Florida Department of Environmental Protection v. Stop the Beach Nourishment, 130 S.Ct. 2592 (2010).

[2]Trustees of the Freeholders and Commonality of Town of Southampton v. Buoninfante¸303 A.D. 579 2d (2nd Dept. 2003).

[3] 79 A.D.3d 1037 (2nd Dept 2010).