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Washington Law Review

Josh Eagle

Abstract

Over the past few decades, landowners have tried to use the First, Fourth, and Fifth Amendments to fully privatize the upper, dry-sand part of the beach. If these efforts were to succeed, there would be a host of negative consequences, and not just for surfers. In most states in which beaches are economically important, including California, Florida, New Jersey and Texas, privatized dry sand would have a significant impact on public access. This Article explores the possibility that courts and the public can put an end to the beach privatization movement simply by pointing to the common law of waterfront property. Historically, both courts and scholars have largely ignored the challenging title issues created by the common law and, in particular, by the rules governing boundary relocation after waves, currents, tides, and winds have changed the shape of a beach. These rules serve important purposes, but also make it impossible to know the location of public-private beach boundaries in real time, that is, at the moment the landowner wishes to use the boundary to exclude others from her property. The consequence of this real-time uncertainty is that, as a matter of law, landowners do not have an enforceable right to exclude. The absence of a right to exclude not only undercuts constitutional claims premised on its existence, but also leads to the conclusion that the public has the right to use the entire beach. If there is no right to exclude, what are the beachfront owner’s rights? Real-time uncertainty makes it impossible for the owner to prove title in real time, but the same would also be true for the state; thus the state and neighboring owners enjoy a form of co-tenancy in the sand. To protect the private interest, and to fill the vacuum left by the vanished right to exclude, this Article suggests that the state should grant landowners a more stable exclusion line, at the top of the beach, and give each landowner the right to prevent unreasonable public use of adjacent beach areas.

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