EROSION, STATE WATER BOTTOM OWNERSHIP, AND THE PRIVATE 

 PROPERTY OWNER 



Ownership of property is an ancient and fundamental legal right in western 

 civilization.' In addition to exclusive rights to the surface, private property owners may 

 possess preeminent rights in subsurface minerals and even the airspace above the 

 land"^. The measure of the property owner's rights is tied to the surface area of his 

 holdings and boundaries established on the surface serve as a convenient method 

 delineating the rights of adjoining proerty holders. 



Just as any person may own property in his individual capacity, the State may own 

 property and exercise all normal proprietary functions over its domain. In the 

 celebrated 1845 case. Pollard's Lessee v. Hagan ," the U.S. Supreme Court determined 

 that each state owned the lands underneaTE navigable waters within the state. The Court 

 reasoned that because the original 13 states owned the land under their navigable waters, 

 all states subsequently entering the union should take ownership of equivalent water 

 bottoms because the Constitution promised them "equal footing" at statehood. Because 

 Pollard's Lessee v. Hagan involved only the tidewaters of Mobile Bay, and was further 

 complicated by a deed of cession from the State of Georgia to the United States, the 

 case did not make clear whether the equal footing doctrine gave the states title to the 

 beds of inland navigable waters not affected by the tide. Subsequent Supreme Court 

 decisions, however, held that the states did own the bottom of inland navigable waters, 

 (such as the upper Mississippi)". Still later, the Supreme Court decided that state law-- 

 rather than Federal common law—controlled the disposition of navigable water bottoms, 

 including what general rules of law would apply when such lands eroded." Therefore, in 

 Louisiana's coastal wetlands, Louisiana property law dictates the consequences when a 

 private landowner's property erodes under the forces of nature. 



Since the State of Louisiana owns the beds of navigable bodies of water, a key 

 inquiry that must be made before the legal consequences of erosion can be determined is 

 whether or not the body of water abutting the private landowner's property is 

 "navigable." Louisiana courts have essentially adopted the Federal admiralty definition 

 of navigability.'^ The Daniel Ball, ' ' a U.S. Supreme Court case, defines navigable 

 rivers in the following manner: 



"Those rivers must be regarded as public navigable rivers in law 

 which are navigable in fact. And they are navigable in fact when 

 they are used, or are susceptible of being used, in their ordinary 

 condition, as highways for commerce, over which trade and travel 

 are or may he conducted in the customary modes of trade and travel 

 on waters." 



Using this definition, Louisiana courts have determined that historical commercial 

 use '-^ or actual present commerical use may adequately demonstrate navigability for 

 property law purposes. 



Once navigability has been determined, the legal consequences which result from 

 erosion depend on where the erosion is occurring. Louisiana property law recognizes 

 three distinct types of shoreline: lakeshore; banks of rivers, bayous and streams; and 

 seashore. Similar types of erosion in each of these areas can have widely differing legal 

 consequences for the private property owner. 



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