Imagine this. You purchase a prime piece of ocean front property and spend a million dollars to acquire your dream. Then you throw in another two million dollars for a house, dock for your yacht and a swimming pool. At last, you have arrived. You have your own exclusive oceanfront getaway. Not so fast.

You see, it is becoming more and more apparent that there is no such thing as a truly private beach in many parts of the United States of America. Blame it on an old Roman law called the "Public Trust Doctrine." Under that doctrine, the government has an interest in all tidally flowed properties. Thus, where the sand is wet, there is usually government ownership of at least some right of access.

This means that even people who have plat plans demonstrating that they own parts of the beach really do not have exclusive ownership. They may own the sand, they may be able to erect some improvements on the sand, but in most instances they do not have exclusive use and control of the wet sand. They have a partner. The State.

The Public Trust Doctrine is an equitable doctrine. The doctrine stands for the principle that everybody should have access to the ocean and the navigable waters.

The original use of the doctrine applied to fisherman. Everybody needed to have access to the water so that they could fish and earn a living or find some food.

In recent times, the doctrine has been expanded so as to apply to all water dependent activities including, swimming. And as our coastal States become more developed, meaning that the competition for a finite amount of coastal real estate becomes enhanced, the Public Trust Doctrine becomes increasingly more significant.

Different States define the Public Trust Doctrine in different ways. The extent of government control and regulation differs from State to State. And the types of uses and classes of persons protected under the Public Trust Doctrine also differ.

But as a general rule if the sand is wet it is Public Trust property. And in certain places if the sand is dry but adjacent to wet sand at least to some extent it is also considered public trust property.

When someone owns property that is public trust property, their use and enjoyment of the property may be diminished to some extent. For example, persons who own public trust property may not be able to fence off their entire property. And it is usually owners of these beautiful large oceanfront properties who are the most inclined to fence off their property to guaranty exclusive use and enjoyment. But attempts to erect perimeter fences can be met with lawsuits filed by the Attorney General of the various States seeking to enforce public trust rights.

The law usually provides that States have an affirmative obligation to vigorously protect public trust property. This means that individuals who own oceanfront property and go too far in excluding members of the public from accessing the ocean face the possibility of litigation.

It should be noted that a State cannot in most instances waive its right to enforce public trust obligations. This means that a family who has successfully fenced off its public trust property precluding public access for many years may nonetheless be subject to a lawsuit.

It appears that public trust litigation is on the rise. There have been several notable cases on the East Coast and there have been several noteworthy and prominent cases in Malibu, California involving members of the Hollywood community.

Remember, coastal communities are generally experiencing a rise in their populations. Yet, the amount of oceanfront property will remain a constant forever. And as the competition for this finite real estate continues due to population growth, expect more and more demands for public access and an increase in the amount of Public Trust Doctrine litigation.

Published: October 31, 2002

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