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).