As the flood waters left by Hurricane Sandy recede and leave behind an altered landscape, we are reminded of the age-old difficulties occasioned by human efforts to draw permanent boundaries on an earth that is forever changing. Where water meets land, traditional notions of private property collide with the sea, which has historically been property common to all.
What has resulted is an uncertain legal doctrine derived in part from a vexing set of common-law rules centuries in the making. These ruleswhich attempt to reconcile the myriad, competing interests in this unique sliver of real estate with the ephemerality of its bordershave been further complicated by recent Fifth Amendment takings jurisprudence.1 Accordingly, this article discusses the effects of Sandy on title to shoreline property, the government’s ability to regulate such property, and issues related to the government’s condemnation or taking of private property in its efforts to restore the coastline in the wake of Sandy’s devastation.
