Southeast Texas Record

Thursday, February 27, 2020

Texas SC: Storms may change public beach lines, but easement must be proven

By Steve Korris | Nov 11, 2010

AUSTIN – Public access to beaches on the Gulf of Mexico rolls with the tide but didn't roll with Hurricane Rita, the Supreme Court of Texas decided on Nov. 5.

Six justices ruled that no one can cross Carol Severance's rental property on Galveston Island's West Beach until the state proves an easement or pays for one.

"On one hand, the public has an important interest in the enjoyment of Texas's public beaches," Justice Dale Wainwright wrote. "But on the other hand, the right to exclude others from privately owned realty is among the most valuable and fundamental of rights possessed by private property owners."

"Our holding does not necessarily preclude a finding that an easement exists," he wrote.

The justices settled the matter at the request of federal appeals judges who must decide whether the Texas General Land Office violated Severance's constitutional rights.

After Hurricane Rita moved the vegetation line from the sea side of her house to the land side, the state claimed the house interfered with public use of the beach.

The state relied on a general easement along a line separating dry beach from wet beach, but the justices held that the line didn't roll when the beach rolled.

"Once established, we do not require the state to re-establish easements each time boundaries move due to gradual and imperceptible changes to the coastal landscape," Wainwright wrote.

"However, when a beachfront vegetation line is suddenly and dramatically pushed landward by acts of nature, an existing public easement on the public beach does not roll inland to other parts of the parcel or onto a new parcel of land," he wrote.

Justices Nathan Hecht, Paul Green, Phil Johnson, Don Willett and Eva Guzman agreed.

Dissenters David Medina and Debra Lehrmann warned that a vague distinction between gradual and sudden changes would jeopardize free and open beaches.

"Easements that allow the public access to the beach must roll with the changing coastline in order to protect the public's right of use," Medina wrote.

"The primary objective is not to ensure the easement's boundaries are fixed but rather that its purpose is never defeated," he wrote.

Chief Justice Wallace Jefferson did not participate.

The Texas General Land Office determined in 2004 that the house was partly or wholly on dry beach, but a two-year moratorium protected the property.

In 2005, when Severance bought it, she received Open Beach Act disclosure explaining that it might become located on a public beach through erosion.

After Hurricane Rita struck that September and the moratorium expired, she received a letter requiring her to remove the house.

A second letter offered $40,000 if she acted quickly.

Severance sued in federal court, arguing the state couldn't enforce an easement without proving its existence.

The state moved to dismiss and U.S. District Judge Kenneth Hoyt granted the motion, ruling that the easement rolled.

Severance appealed to the federal Fifth Circuit in New Orleans, alleging unreasonable seizure under the Fourth Amendment and wrongful taking under the Fifth Amendment.

Fifth Circuit judges determined her Fifth Amendment claim wasn't ripe but certified questions about her Fourth Amendment claim to the state Supreme Court.

The justices heard arguments last November and spent a year forming an answer.

Wainwright wrote, "Privately owned beaches may be included in the definition of public beaches."

He wrote that the area from mean low tide to mean high tide is called the wet beach, because it is under the tidal waters some time during each day. The area from mean high tide to the vegetation line is known as the dry beach.

"The wet beaches are all owned by the state of Texas, which leaves no dispute over the public's right of use," Wainwright wrote. "However, the dry beach often is privately owned and the right to use it is not presumed under the Open Beaches Act."

According to the ruling, the Republic of Texas granted title to West Beach property in 1840. The state of Texas disclaimed title to the land in 1852 and 1854.

A 1958 decision, Luttes v. State, established the landward boundary of the public trust at the mean high tide line.

"When beachfront property recedes seaward and becomes part of the wet beach or submerged under the ocean, a private property owner loses that property to the public trust," Wainwright wrote.

"Likewise, if the ocean gradually recedes away from the land moving the high tide line seaward, a private property owner's land may increase at the expense of the public trust," he wrote.

In 1959, legislators found that property owners viewed the Luttes decision as license to build barricades all the way into the Gulf.

They passed the Open Beaches Act, authorizing removal of barriers from state owned beaches or larger areas where the public has acquired an easement.

Wainwright wrote that the act didn't create or diminish property rights and specifically disclaimed any intent to take rights from private owners.

"Easements exist for the benefit of the easement holder for a specific purpose," he wrote. "An easement does not divest a property owner of title, but allows another to use it for that purpose."

While losing property to the public trust is an ordinary hazard of coastal ownership, Wainwright wrote, it is less reasonable to hold that an easement can suddenly encumber a new portion of a property.

"We have never held the dry beach to be encompassed in the public trust," he wrote. "The public may have a superior interest in use of privately owned dry beach when an easement has been established on the beachfront. But it does not follow that the public interest in the use of privately owned dry beach is greater than a private property owner's right to exclude others from her land when no easement exists on that land."

But Justice Medina responded that, "Under the Court's analysis, the property line may be dynamic but beachfront easements must always remain temporary."

He wrote that the public's right to the beach can never be established or secure.

"By implied prescription, implied dedication, or customary and continuous use, overwhelming evidence exists that Texans have been using the beach for nearly 200 years," Medina wrote.

"As long as a dry beach exists, so too must beachfront easements," he wrote. "Any other result deprives the public of its pre-existing, dominant right to unrestricted use and enjoyment of the public beach."

Texas voters amended the Constitution last year to acknowledge the permanent nature of the easement and the state owed no compensation because it didn't take any property, Medina wrote.

"The right to exclude the public from the dry beach was never in the landowner's bundle of sticks when she purchased the property," he wrote.

The Supreme Court docket shows that Severance represented herself, along with David Breemer and Martha Hardwick Hofmeister.

Attorney General Greg Abbott represented the land office.

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