TEXAS OPEN BEACHES ACT - Texas Land Title Association...Texas Open Beaches Act 396008.1 TOBA establishes an easement in favor of the public to access public beaches by prescription

396008.1

20th Annual Robert C. Sneed

TEXAS LAND TITLE INSTITUTE

TEXAS OPEN BEACHES ACT

December 2-3, 2010 Hyatt Regency Hill Country Resort & Spa

San Antonio

Mr. Daryl W. Bailey Looper Reed & McGraw, P.C. 1300 Post Oak Blvd. Suite 2000 Houston, Texas 77056 (713) 986-7125

Pursuing Unrivaled Results © 2010 Looper Reed & McGraw, P.C.

1300 Post Oak Blvd. Suite 2000 Houston, Texas 77056 T: (713) 986-7000 F: (713) 986-7100 [email protected]

Daryl represents plaintiffs and defendants in trials, appeals, mediation and arbitration. As a trial lawyer, Daryl has successfully obtained favorable judgments for his clients through jury verdicts and bench trials. As a counselor, Daryl has been instrumental in assisting clients in resolving their disputes through mediation-formal and informal. Daryl’s practice in commercial, business and general civil litigation includes real estate, construction and employment litigation. He is particularly accomplished in disputes related to real estate and claims against title insurance companies and their insureds. Through a wide variety of representations of clients, Daryl has gained substantial experience in cases involving multiple parties, contracts, fraud, business torts, DTPA, UCC, trade secrets, employer/employee contracts (including non-competes), sexual harassment and other discrimination claims, landlord/tenant, and lien filings, contractors and subcontractors rights and eminent domain / condemnation. Daryl’s appellate practice includes a case he argued before the Texas Supreme Court which the Texas Lawyer ranked as one of the top 50 cases that had a significant impact on Texas law.

Daryl W. Bailey Trial Lawyer/Director

• State Bar of Texas (Member: Appellate Section; Construction Section; Labor & Employment Law Section; Litigation Section; Real Estate, Trust & Probate Section).

• U.S. Court of Appeals (5th Circuit). • U.S. District Court (Southern District of Texas). • Houston Bar Association (Member: Appellate Section; Construction

Section; Labor & Employment Law Section; Litigation Section; Real Estate Section).

• Texas Land Title Association (Judiciary Committee, Institute Committee).

PROFESSIONAL ACTIVITIES, MEMBERSHIPS & AFFILIATIONS

PUBLICATIONS AND SPEECHES• Author, “Storm of Litigation Brews Over Open Beach Exemption”,

Houston Chronicle, June 26, 2009, http://www.chron.com/disp/storympl/editorial/outlook/6499969.html

• Author, “Title insurance - Think of it as a horse of a different color”, Volume 36, Number 19, September 16th - 22nd, 2005, Edition of the Houston Business Journal.

• Co-Author and Speaker: “Texas Title Examination” Lorman, 2001, 2002. • Co-Author and Speaker: “Title Law in Texas,” N.B.I., 1998.

Pursuing Unrivaled Results © 2010 Looper Reed & McGraw, P.C.

• 1979 - B.A., Michigan State University • 1986 - J.D., South Texas College of Law

EDUCATION

HONORS• Daryl’s peers have rated his legal abilities from Very High to Preeminent

and his general ethics as Very High resulting in an AV rating by Martindale-Hubbell.

• Selected as a Super Lawyer by Texas Monthly and Law & Politics magazine, 2006, 2009, 2010

• Listed in Who’s Who in American Law. • Listed in Who’s Who Among Top Executives.

1300 Post Oak Blvd. Suite 2000 Houston, Texas 77056 T: (713) 986-7000 F: (713) 986-7100 [email protected]

Daryl W. Bailey Trial Lawyer/Director

• Moss v. Tennant, 722 S.W.2d 762 (Tex. App. -- Houston [14th Dist.] 1986, writ ref’d n.r.e.)

• Ojeda De Toca v. Wise, 748 S.W.2d 449 (Tex. 1988)• Manhattan Construction v. Hood Lanco, Inc., et al., 762 S.W.2d 617 (Tex.

App. -- Houston [14th Dist.] 1988, writ denied)• Martinka v. Commonwealth Land Title Insurance Company, 836 S.W.2d

773 (Tex. App. -- Houston [1st Dist.] 1992, writ denied)• First National Petroleum Corp. v. Lloyd, 908 S.W.2d 23 (Tex. App. --

Houston [1st Dist.] 1995, no writ)

REPORTED CASES

i 396008.1

TABLE OF CONTENTS Table of Contents ........................................................................................................ i Texas Open Beaches Act ............................................................................................................ 1 I. Historical View ....................................................................................................................... 1 II. Law in Texas ............................................................................................................................ 2 A. Texas Open Beaches Act .................................................................................. 2 i. Enforcement of the TOBA……………………………………. 4 ii. The TOBA Amendment……………………………………… 4 iii. Constitutional Amendment Adopting the Open Beach Act….. 5 B. Boundary Issues …………………………………………………….. 5 i. The Rolling Easement Doctrine……………………………….…. 6 C. Severance v. Patterson…………………………………………………. 7 i. The Case …………………………………………………………. 7 ii. The Decision…………………………………………………….. 9 iii. The Dissenting Opinion ………………………………………. 10 iv. Consequences………………………………………………….. 12 III. Stop the Beach Renourishment, Inc. v. Florida Dept. of EPA ........................ 13 IV. Conclusion ....................................................................................................... 15

2010 Texas Land Title Institute Page 1 Texas Open Beaches Act 396008.1

TEXAS OPEN BEACHES ACT

I. Historical View

The State of Texas has 367 miles of coastline along the Gulf of Mexico.1 Historically,

this coastal area was used for roads, commerce and public recreation. The public's use of Gulf

Coast beaches, even driving and parking on them, was based on the assumption they were owned

and controlled by the State.2 However, as the Texas coastline continued to develop, it became

crucial to more clearly regulate the public access to beaches. Initially, the impetus for regulating

Texas beaches was less related to public use or recreation, but, instead, directly related to mineral

right ownership.3 Many beachfront property owners wanted to keep the public away from their

property in favor of leasing their land for mineral exploration.

Under Texas common law, the boundary between private and public beachfront or

lakefront property was determined by the natural line of vegetation.4 On public beaches,

construction was not allowed and the public had unrestricted access.5

In the seminal case of Luttes vs. State,6 the Texas Supreme Court defined the boundary

line separating beachfront private property from state owned beaches along the Gulf.7 Luttes

alleged that due to accretion, his boundary line moved and, therefore, he obtained title to certain

1 Matthew Tresaugue & Harvey Rice, Beach Homeowners Win Ruling, Houston Chron., Nov. 5, 2010, available at http://www.chron.com/disp/story.mpl/metropolitan/7281075.html; See also Texas Beaches, http://www.texasbeaches.us/index5.html (last visited Nov. 12, 2010). 2 EDDIE R. FISHER & ANGELA L. SUNLEY, A LINE IN THE SAND: BALANCING THE TEXAS OPEN BEACHES ACT AND

COASTAL DEVELOPMENT (2007), http://www.csc.noaa.gov/cz/CZ07_Proceedings/PDFs/Tuesday_ Abstracts/ 2658. Fisher.pdf. 3 Id. 4 Id. 5 Id. 6 Luttes v. State, 324 S.W.2d 167 (Tex. 1958). 7 Severance v. Patterson, 2010 WL 4371438, at *6 (Tex. 2010).


mudflats located between the Texas mainland and Padre Island.8 The State disagreed and argued

that the mudflats were State property because tidal waters still covered the mudflats, and,

therefore, the mudflats were actually part of the seashore.9 According to the State, the relevant

boundary line was the highest point reached by tidal waters on any one occasion.10 In deciding

the case the Texas Supreme Court created legal precedent, holding that any area located seaward

of the “Mean High Tide” (MHT) belonged to the State as part of the public trust, and any land

landward of the MHT belonged to the private owner.11 The Court defined MHT as the average of

highest daily water computed over the regular tidal cycle of 18.6 years.12

As a result of the Luttes decision, beachfront landowners constructed fences and barriers

restricting vehicular and public access to coastal beaches.13 As might have been expected,

Texans were unsatisfied.14 In order to end this public discontent and protect public access to the

beaches, the State of Texas enacted the Texas Open Beaches Act in 1959.15

II. Law in Texas

A. Texas Open Beaches Act

Enacted in 1959, the Texas Open Beaches Act (“TOBA”)16 codifies the public’s pre-

existing right of free and unrestricted access to public beaches on the Gulf of Mexico.17 The

8 Luttes, 324 S.W.2d at 169. 9 Id. 10 Id. 11 Luttes, 324 S.W.2d at 187. 12 Id. 13 EDDIE R. FISHER & ANGELA L. SUNLEY, A LINE IN THE SAND: BALANCING THE TEXAS OPEN BEACHES ACT AND

COASTAL DEVELOPMENT (2007), http://www.csc.noaa.gov/cz/CZ07_Proceedings/PDFs/Tuesday_ Abstracts/ 2658. Fisher.pdf. 14 Id. 15 Id. 16 TEX. NAT. RES. CODE Ch. 61, Acts of the 56th Legislature, 2nd Called Session, 1959, Chapter 19, page 108. (Codified in 1977 as Subchapter B, Chapter 61, Texas Natural Resources Code). 17 Id. §61.011.


TOBA establishes an easement in favor of the public to access public beaches by prescription or

dedication, or where a right of public use pre-exists.18

The TOBA defines the State’s beach (or public beach) as any beach area, whether

publicly or privately owned, inland from the line of the coast’s Mean Low Tide (“MLT”) to the

line of natural vegetation bordering on the Gulf of Mexico to which the public has acquired the

right of use or easement to or over the area by prescription, dedication, presumption, or has

retained a right by virtue of continuous right in the public since time immemorial, as recognized

in law and custom.19 Nothing can be constructed on a public beach. Conversely, the dry beach,

which can be privately owned, is the area between the MHT and the vegetation line.20 Therefore,

under the TOBA, it is illegal for beachfront owners to construct or fence a public beach in any

way that interferes with free and unrestricted access to the public beach.

The TOBA also gives the attorney general the right to remove obstructions and prevent

improvements on public beaches.21 In addition, the attorney general can seek reimbursement

from a beachfront property owner for any removal costs incurred by the State.22 The purpose of

the removal is to protect the public’s right of free and unrestricted access to public beaches.

In summary, the TOBA does not alter the Luttes case. In fact, it enforces the public’s

right to use public beaches by granting access through private property where an easement

already exists.

18 Id. §61.012, §61.013(a). 19 Id. §61.001(8). 20 EDDIE R. FISHER & ANGELA L. SUNLEY, A LINE IN THE SAND: BALANCING THE TEXAS OPEN BEACHES ACT AND

COASTAL DEVELOPMENT (2007), http://www.csc.noaa.gov/cz/CZ07_Proceedings/PDFs/Tuesday_ Abstracts/ 2658. Fisher.pdf. 21 Tex. Nat. Res. Code Ch. 61, Acts of the 56th Legislature, 2nd Called Session, 1959, Chapter 19, page 108. (Codified in 1977 as Subchapter B, Chapter 61, Texas Natural Resources Code). §61.018(a). 22 Id. §61.018(b).


i. Enforcement of the TOBA

The TOBA does not apply to all beachfront properties. There are three requirements for

the TOBA to be applicable to beachfront properties: (1) the beach must be accessible to the

public by either public road or ferry;23 (2) the public historically must have used and accessed the

dry beach (the public acquired an easement) and (3) the property (or any part of it) must be

located on the public beach.24

Beachfront property owners most frequently contest the establishment of an easement

requirement. For example, beachfront property owners argue that their property has not been

used continuously, exclusively, or adversely by the public in order to access the public beach

and, therefore, an easement by prescription or continuous25 does not exist.26

ii. The TOBA Amendment

Because the TOBA was enacted in 1959, a time when the Texas coast was not very well

developed; the Texas legislature apparently did not foresee multimillion-dollar homes and

condominiums on the Texas coast.27 The development of the Texas coastline and the increase in

beachfront real estate prices required the state legislature to update the TOBA. In 1991 the

TOBA was amended in an attempt to resolve the tension between property owners and

beachgoers.28 This amendment granted the Commissioner of the General Land Office (GLO)

authority to create rules and guidelines to assist local governments with beachfront

23 Id. §61.013(c). 24 Id. §61.013. 25 Continuous Easement: An easement that may be enjoyed without a deliberate act by the party claiming it. BLACK’S LAW DICTIONARY, 432 (8th Ed. 2005). 26 Mark D. Holmes, What about my beach house? A Look at the Takings Issue as Applied to the Texas Open Beaches Act, 40 HOUS. L. REV. 119 (2003). 27 EDDIE R. FISHER & ANGELA L. SUNLEY, A LINE IN THE SAND: BALANCING THE TEXAS OPEN BEACHES ACT AND

COASTAL DEVELOPMENT (2007), http://www.csc.noaa.gov/cz/CZ07_Proceedings/PDFs/Tuesday_ Abstracts/ 2658. Fisher.pdf. 28 Id.


development.29 However, even after the 1991 amendment and its subsequent rules and

guidelines, TOBA interpretation problems still lingered.30

Nowadays, the TOBA is one of the most problematic and misunderstood Texas laws.31

Certain terms in the TOBA are prone to different interpretations, such as “line of vegetation,”

“unrestricted access,” “encroachment,” “dune restoration,” “critical dunes,” and “rolling

easement.”32 This last term will be discussed in further detail below.

iii. Constitutional Amendment Adopting the Open Beach Act

On November 3rd, 2009, Texas elevated the level of protection to the free access of

beaches.33 Article I, §33(a) of the Texas Constitution was amended to incorporate the language

of the TOBA. The amendment embraces the TOBA’s definition of “public beach” and reinstates

the existence of the public easement at the coastline of Gulf of Mexico.34

B. Boundary Issues

One of the major issues unresolved by the 1991 TOBA amendment or by the GLO rules

was boundary limits and the changes caused by erosion or natural disaster. Property lines on the

29 Id. §61.011(d). 30 EDDIE R. FISHER & ANGELA L. SUNLEY, A LINE IN THE SAND: BALANCING THE TEXAS OPEN BEACHES ACT AND

COASTAL DEVELOPMENT (2007), http://www.csc.noaa.gov/cz/CZ07_Proceedings/PDFs/Tuesday_ Abstracts/ 2658. Fisher.pdf. 31 Id. 32 Id. 33 Matthew Tresaugue & Harvey Rice, Beach Homeowners Win Ruling, HOUSTON CHRON., Nov. 5, 2010, available at http://www.chron.com/disp/story.mpl/metropolitan/7281075.html. 34 TEX. CONST. ART. I, SEC. 33. ACCESS AND USE OF PUBLIC BEACHES. (a) In this section, "public beach" means a state-owned beach bordering on the seaward shore of the Gulf of Mexico, extending from mean low tide to the landward boundary of state-owned submerged land, and any larger area extending from the line of mean low tide to the line of vegetation bordering on the Gulf of Mexico to which the public has acquired a right of use or easement to or over the area by prescription or dedication or has established and retained a right by virtue of continuous right in the public under Texas common law.(b) The public, individually and collectively, has an unrestricted right to use and a right of ingress to and egress from a public beach. The right granted by this subsection is dedicated as a permanent easement in favor of the public.


coast are considered dynamic, meaning they can be modified at any time and, therefore, the

public beach can be moved forward or backward.35

The problems usually involve beachfront homes located close to the line of vegetation

which, because of natural erosion or a natural disaster, begin to infringe on a public beach

easement subject to State enforcement. In 2004, Texas GLO Commissioner Jerry Patterson

created a plan to solve this problem. The plan consisted of placing 116 homes on an

enforcement moratorium list until 2006 in order to protect them from enforcement actions until a

plan of action was created. The purpose of the enforcement moratorium was to permit enough

time for the natural line of vegetation to recover, at which time a new evaluation of the

boundaries would determine if the homes were located on a public beach.36

In 2005, after Hurricane Rita, the Texas coastline suffered major erosion and some of the

properties protected by the moratorium experienced even greater erosion. In 2006, when the

moratorium ended, Commissioner Patterson enacted his plan in which he defined the public

beach easement as a rolling easement that is never fixed and is not subject to human

manipulation. The plan established that structures on a public beach should be removed and the

removal priority categorized according to the level of threat posed to public health and safety.

i. The Rolling Easement Doctrine37

An easement is defined as an express or implied non-possessory property interest that

permits its holder to use the property of another for a particular purpose.38 An easement is not

defined by fixed boundaries, but rather by its purpose and use.39

35 Severance v. Patterson, 2010 WL 4371438, at *9 (Tex. 2010). 36 Severance v. Patterson, 485 F. Supp. 2d 793, 797 (S.D. Tex. 2007). 37 See Severance v. Patterson, 2010 WL 4371438, at *21 (Tex. 2010). 38 Marcus Cable Assocs. v. Krohn, 90 S.W.3d 697, 700 (Tex. 2002). 39 Sun Oil Co. v. Whitaker, 483 S.W.2d 808, 810 (Tex. 1972).


The rolling easement is an easement that is dynamic and moves according to natural

boundaries, rather than fixed points. According to the rolling easement doctrine, a public

easement changes along with the changing coastline. In other words, the easement follows the

movement of the dry beach in order to maintain its function. The main purpose of the rolling

easement doctrine is to protect the public’s right to use public beaches (consequently, the

purpose of the easement is never defeated by geographic changes). The result of the rolling

easement doctrine was a great increase in the scope of the TOBA.40

C. Severance v. Patterson

On November 5th, 2010, the Texas Supreme Court had an important role in determining

the boundary lines of beachfront property after a natural disaster, in this case a hurricane. On

one hand was the public interest in the enjoyment of Texas public beaches and on the other hand

was the right of private beach owners to their property. The Texas Supreme Court held that the

State is not allowed to request beachfront property owners to remove their private property if a

natural disaster moves the boundary line and causes the property’s location to be within the

public section of a beach.41

i. The Case

In 2005, Carol Severance, a California resident, purchased a property in Galveston

Island’s West Beach at Kennedy Drive, which she often rented to local Texas families.42 When

Severance purchased her beachfront property she received an TOBA mandatory disclosure

notice notifying her of the boundary risks of the property, the nature of the rolling easement, and

40 Mark D. Holmes, What about my beach house? A Look at the Takings Issue as Applied to the Texas Open Beaches Act, 40 HOUS. L. REV. 119 (2003). 41 Severance v. Patterson, 2010 WL 4371438, at *15 (Tex. 2010). 42 Matthew Tresaugue & Harvey Rice, Beach Homeowners Win Ruling, Houston Chron., Nov. 5, 2010, available at http://www.chron.com/disp/story.mpl/metropolitan/7281075.html.


that in case the property became located in the public beach area due to natural events, the State

could sue to have her forcibly remove any and all structures that become located on a public

beach. Five months after Severance purchased her property Hurricane Rita devastated the area

and moved the MHT line and vegetation line further inland. These boundary changes caused her

property to end up on the public beach.

In 2006, Severance received several letters from Commissioner Patterson stating that

because her home moved seaward of the vegetation line after the hurricane, the home and part of

her property were now on the public beach violating the TOBA and subject to a removal order.

The GLO offered Severance $40,000 to remove or relocate her home if she acted before October

2006.43 State officials interpreting the TOBA determined that Severance and her renter could not

(1) prevent unwanted strangers on the property, (2) build anything on the property or repair the

damage caused by the hurricane on her property, or (3) object to having her home removed at the

officials' discretion.44

As a result of the letters, Ms. Severance sued the GLO and the State of Texas in federal

district court. She argued that the State was enforcing a public easement on her land under the

rolling easement doctrine without any proof that the public had acquired a common law

easement on the land. Therefore, the removal of her home infringed her constitutional rights and

constituted: (1) an unconstitutional taking under the Fifth Amendment, (2) an unreasonable

seizure of her land under the Fourth Amendment, and (3) a violation of her substantive due

process rights.45

43 Id. 44 J. David Breemer, Fighting government seizure and removal of homes, Pacific Legal Foundation, available at http://community.pacificlegal.org/Page.aspx?pid=455 45 Severance v. Patterson, 485 F. Supp. 2d 793, 798 (S.D. Tex. 2007).


The Texas District Court dismissed the suit on the merits and for lack of jurisdiction.

The district court, basing its decision on Texas property law, determined that there was a pre-

existing easement on Severance’s property and that such easement “rolls” according to boundary

line changes.46

Ms. Severance appealed the decision to the Fifth Circuit concerning her Fourth and Fifth

Amendment challenges to the rolling easement doctrine. The Fifth Circuit reversed the trial

court's dismissal of the seizure claim and asked the Texas Supreme Court to interpret the TOBA,

regarding to the following issues: (1) the existence of the “rolling” public beachfront access

easement; (2) in the event Texas recognizes such an easement, is it derived from common law or

from construction of the TOBA; and (3) to what extent, if any, would a landowner be entitled to

receive compensation (other than the amount already offered for removal of the house) under

Texas law for the limitations on use of her property effected by the landward migration of a

rolling easement onto property on which no public easement has been found by dedication,

prescription, or custom.47

ii. The Decision

On November 5th, 2010, the Texas Supreme Court ruled (6-2) that the rolling easement

doctrine is not applicable to avulsive events, and, as a result, the TOBA does not allow the State

to request landowners to remove their beachfront property if a hurricane or a severe storm moves

46 Id. at 802-04. 47 Severance v. Patterson, 566 F.3d 490, 504 (5th Cir. 2009).


it to the public section of a beach.48 According to the court, this removal measure could deprive

private beachfront owners of their property without fair compensation.49

The Court stated that easements for public use of private dry beach property change along

with gradual and imperceptible changes to the coastal landscape, such as erosion.50 However,

avulsive natural events (sudden natural occurrences, such as hurricanes and severe storms51 that

drastically modify the coastline) do not have the effect of permitting a public use easement to

migrate onto previously unencumbered property. Instead, when a beachfront area and its

attached easement are absorbed by the Gulf of Mexico in a drastic natural event, a new easement

must be established by satisfactory evidence to encumber the newly created dry beach bordering

the ocean.52

In addition, the Court stated that even if beachfront owners received the TOBA’s

mandatory disclosure notice from the State notifying them that the State may enforce an

easement, beachfront owners do not waive their rights against the State.53

iii. The Dissenting Opinion

The two dissenting justices, David Medina and Debra Lehrmann, disagreed with the

majority decision because, according to them, it jeopardizes the public’s right to free and open

48 Severance v. Patterson, 2010 WL 4371438, at *15 (Tex. 2010). The majority states: "[…] while losing property to the public trust as it becomes part of the wet beach or submerged under the ocean is an ordinary hazard of ownership for coastal property owners, it is far less reasonable to hold that a public easement can suddenly encumber an entirely new portion of a landowner’s property that was not previously subject to that right of use." 49 Severance v. Patterson, 2010 WL 4371438, at *11 (Tex. 2010). 50 Id. at *11. 51 The Court does not define the term “severe storm.” 52 Severance v. Patterson, 2010 WL 4371438, at *11 (Tex. 2010). 53 The majority limited its opinion of how major storms affect public easements in the area of West Beach, Galveston. See Severance v. Patterson, 2010 WL 4371438, at *1 (Tex. 2010)


beaches and may lead to restricted access along the coast.54 They reasoned that the TOBA

imposes a public beach access easement on all property up to the natural vegetation line,

regardless of whether the public has ever used the property claimed as an easement or acquired

rights in such land.55 Therefore, when the vegetation line moves inland, by whatever cause, the

public easement “rolls” inland and shifts the private beachfront property onto the public beach

area.56 In other words, the natural laws of the coast have compelled Texas common law to

recognize rolling easements.57

Additionally, the dissenting opinion states that the majority decision interferes with Texas

nuisance law, which states that a property owner may not use his or her property in a way that

unreasonably interferes with the property rights of others.58

In conclusion, the dissenting opinion argues that because the government is not

responsible for changes in natural conditions, and the government is merely enforcing an

easement whose boundaries have shifted, the government should not shoulder the burden or risk

of boundary changes and, therefore, compensation is not owed to beachfront property owners

whose property is encumbered by the rolling easement.59 Moreover, such removals, according to

the dissenting opinion, are not “Fifth Amendment takings” by the government because the

government is merely enforcing an easement with shifting boundaries.60 Therefore, as there is no

taking, compensation is not required.61

54 Severance v. Patterson, 2010 WL 4371438, at *15 (Tex. 2010) (Medina, J. & Lehrmann, J. dissenting). 55 See id. at *20. 56 See id. at *18. 57 Id. at *21. 58 Id. at *23. 59 Id. at *24. 60 Id. at *15. 61 Id. at *16.


iv. Consequences

The Texas Supreme Court decision in Severance v. Patterson may embolden beachfront

owners to fence their property in an attempt to block access to public beaches.62 Such actions

will likely generate future lawsuits concerning the interpretation of the TOBA.

The Supreme Court decision leaves several issues unanswered and raises new semantic

problems. One example of possible future litigation is the contractual obligations of beachfront

property owners who have received notice of shifting boundary lines. In addition, nuisance

actions may be filed concerning structures on the beach.63 One example of a problematic

semantic issue is the definition of an easement as dynamic but not rolling.64 Further, how will

the Severance v. Patterson opinion impact the Texas coastline that is not in West Beach,

Galveston, Texas? Moreover, the coastline is reportedly changing rapidly because of rising

oceans and land sinking.65 If such change is due in large part to human activity—as some

scientists claim—instead of natural causes, it appears that Severance v. Patterson would not

address the natural tension that will result between property owners and beachgoers.

Finally, an immediate consequence of the Texas Supreme Court's opinion in Severance v.

Patterson was the cancellation by the General Land Office of its intended $40 million beach

replacement project that was scheduled to begin on November 16, 2010.66 "The largest beach

and dune restoration project undertaken in the state of Texas” was canceled Monday.67

62 Matthew Tresaugue & Harvey Rice, Beach Homeowners Win Ruling, Houston Chron., Nov. 5, 2010, available at http://www.chron.com/disp/story.mpl/metropolitan/7281075.html. 63 Surfrider Foundation Legal Blog, Texas Open Beaches: The TX Supreme Court Refuses to ’Roll with It’ in West Beach, Galveston, http://surfriderblawblawblog.blogspot.com/ (last visited Nov. 14, 2010). 64 Id. 65 Matthew Treasaugue, A 'delicate dance' to save coastal lands, Houston Chron., Nov. 14, 2010, available at http://www.chron.com/disp/story.mpl/metropolitan/ 7293660.html. 66 Harvey Rice, State Calls Off Big Galveston Beach Project, Houston Chron., Nov. 16, 2010, available at http://www.chron.com/disp/story.mpl/metropolitan/7295713.html. 67 Ian White, State Kills West End Beach Restoration Project, The Galveston County Daily News, Nov. 16, 2010.


According the Jerry Patterson, recently re-elected Commissioner of the General Land Office,

because it would be illegal for Texas to spend taxpayer dollars on private property, the general

land office would risk severe repercussions if it began the six-mile West End project without

knowing whether it was public or private beach.68 “We could put the sand on the West End’s

wet beach, but it would just go away immediately with the action of the tide,” Patterson said.69

“To put it on the dry beach, we would have to sign legal agreements with the owners of 450

homes granting us perpetual rolling easements, but the likelihood of that is minimal", according

to Patterson.70

III. Stop the Beach Renourishment, Inc. v. Florida Dept. of EPA71

Following several hurricanes, the State of Florida enacted the Beach and Shore

Preservation Act (BSPA) in order to avoid and combat beach and dune erosion within the State.72

The BSPA allowed local municipalities to deposit additional sand along the coastline, creating,

therefore, a temporary barrier against erosion, a process called beach renourishment.73

Just like Texas law, the Florida law defines wet beach as the area between the MHT74 and

MLT. The wet belongs to the State and is held in trust for the public.75As in Texas law, the

Florida boundary lines between state and public beaches are also subject to change.

68 Id. 69 Id. 70 Id. 71 Stop the Beach Renourishment, Inc. v. Fla. Dep't of Envtl. Prot., 130 S. Ct. 2592, 177 L. Ed. 2d 184, 2010 U.S. LEXIS 4971, 22 Fla. L. Weekly Fed. S 484, 70 Env't Rep. Cas. (BNA) 1505, 40 Envtl. L. Rep. 20160 (U.S. 2010) 72 The Beach and Shore Preservation Act (Fla. Stat. A7A7 161.011-161.45). 73 Cornell University Law School, Stop the Beach Renourishment v. Florida Dept. of Envt’l Protection (08-1151), http://topics.law.cornell.edu/supct/cert/08-1151 (last visit Nov. 15, 2010). 74 Under Florida law, MHT boundary is based on the average high water line over a nineteen-year period. Melanie King, Florida’s Beach Rnourishment Act Upheld, Jan. 4, 2009 available at http://nsglc.olemiss.edu/SandBar/SandBar7/7.4renourishment.htm. 75 Id.


On behalf of its members, Stop the Beach Renourishment, Inc. (“SBR”), a non-profit

association of six beachfront homeowners, objected the constitutionality of the BSPA, claiming

that the Florida Department of Environmental Protection (FDEP) misused the BSPA by violating

their due process rights resulting in an unconstitutional taking of their private property without

just compensation, a clear violation of the Fifth Amendment.76 According to SBR, the beachfront

homeowner’s property was cut off from the ocean by the BSPA, resulting in the decrease of its

value.77

On the other hand, the FDEP argued that, under Florida common law, beachfront

homeowners only have a right to access the water.78 Therefore, the doctrine of judicial takings

does not apply in this case as no property rights were actually taken away because the beachfront

homeowners continue to have the right to access the water over the newly deposited public

beaches.79

The Supreme Court of the United States upheld The Florida Supreme Court's 8-0

decision that rejected SBR's claims and upheld the BSPA actions as constitutional and not

depriving beachfront homeowners of their littoral rights without just compensation.80 According

to the court, Florida has a constitutional duty to protect its beaches, and the BSPA provides that

duty.81 The court also invoked the doctrine of an “avulsive event”, affirming when an avulsive

event happens, such as a hurricane, the boundary lines between public and private land are not

76 Cornell University Law School, Stop the Beach Renourishment v. Florida Dept. of Envt’l Protection (08-1151), http://topics.law.cornell.edu/supct/cert/08-1151 (last visit Nov. 15, 2010). 77 Id. 78 Cornell University Law School, Stop the Beach Renourishment v. Florida Dept. of Envt’l Protection (08-1151), http://topics.law.cornell.edu/supct/cert/08-1151 (last visit Nov. 15, 2010). 79 Id. 80 Melanie King, Florida’s Beach Rnourishment Act Upheld, Jan. 4, 2009 available at http://nsglc.olemiss.edu/SandBar/SandBar7/7.4renourishment.htm. 81 Cornell University Law School, Stop the Beach Renourishment v. Florida Dept. of Envt’l Protection (08-1151), http://topics.law.cornell.edu/supct/cert/08-1151 (last visit Nov. 15, 2010).


changed.82 Therefore, in applying the avulsive event doctrine, the court ruled that the common

law right to take title of natural sand deposits did not apply.83 This case, like Severance v.

Patterson, also has a limited reach as its application is strictly to the context of restoring

critically eroded beaches under BSPA.84

IV. Conclusion

I am reminded of the time-honored Abbott and Costello routine about who's on first,

what's on second and I don't know is on third. Who owns what and who has the right to use it?

It appears that:

1. The "wet beach", identified as the portion of the beach in Galveston's West Beach

between the mean high tide and the mean low tide, is owned by the State of Texas in trust for the

People of Texas.

2. The "dry beach", identified as the portion of the beach in West Beach Galveston inland

from the mean high tide line, is owned by the private property owners along the Texas coastline.

3. There is a public assess easement on and over that portion of the “dry beach” owned by

Galveston West Beach coastline property owners from the mean high tide line up to natural

vegetation line. The public does not own the land under the easement, but it only has the right to

use it. It is by way of the public access easement that the Public can reach the portion owned by

the State (i.e. the “wet beach”).

The Texas Supreme Court has held that when the beach is eroded by "normal" erosion,

the public access easement moves inland as the mean high tide line and the vegetation line

82 Id. 83 Id. 84 Fla. Stat. A7 161.191.


moves. Under this scenario, such easement moves inland and remains available for the Public’s

use.

But, if erosion is caused by a "major" storm, such easement does not move or change

with the changes in the vegetation line attributable to the storm. In the case of an avulsive event,

the boundaries of the public access easement remain fixed at the pre-storm "natural" vegetation

line. Accordingly, the Texas Supreme Court has eradicated the concept of a “rolling” easement

in Galveston West Beach. Consequently, when a storm is so strong that it erodes the beach such

that the new mean high tide line meets the pre-storm vegetation line, the previously-existing

public access easement ceases to exist.

In the words of the Supreme Court, “The public loses that interest in privately owned dry

beach when the land to which it is attached becomes submerged underwater.”85

Once the public access easement ceases to exist and the State wishes to assert a new

public access easement, “the State must prove it”.86 The Texas Supreme Court acknowledges

that it would be impossible to prove continued public use in the “new” dry beach and would

forever preclude an easement by prescription.87 “New public easements on the adjoining private

properties may be established if proven pursuant to the Open Beach Act or the common law.”88

Accordingly, any new public access easement may only be re-established by a gift from the

private property owner, purchase by the State from the private property owner, or exercise of the

State’s power to condemn property and payment of compensation to the private property owner

for the taking.

85 Severance v. Patterson, 2010 WL 4371438, at *13 (Tex. 2010). 86 Id. 87Id. 88 Id. at 17.


The bottom line is that a public access easement may cease to exist in the event of a

"major" storm. Because the Public would no longer have any public access easement rights, all

restoration or nourishment right would benefit only the private property owners along the

Galveston West Beach arguably violating State law.

And that is how beaches with public access become private beaches, at least in the Eyes

of [the Supreme Court of] Texas.89

89 This writer wishes to thank and acknowledge the contributions of Paula Galhardo and Rob Slater, associates with the Houston office of Looper Reed & McGraw, in assisting me with this project. Additionally, I thank attorney Stephen L. Baker for sharing his thoughts on the subject matter.

Only the Westlaw citation is currently available.

NOTICE: THIS OPINION HAS NOT BEEN RE-LEASED FOR PUBLICATION IN THE PER-

MANENT LAW REPORTS. UNTIL RELEASED,IT IS SUBJECT TO REVISION OR WITHDRAW-

AL.

Supreme Court of Texas.Carol SEVERANCE, Petitioner,

v.Jerry PATTERSON, Commissioner of the Texas

General Land Office; Greg Abbott, Attorney Gen-eral for the State of Texas; and Kurt Sistrunk, Dis-trict Attorney for the County of Galveston, Texas,

Respondents.No. 09-0387.

Nov. 5, 2010.

Background: Landowner brought action for declar-atory and injunctive relief against various state offi-cials, alleging that officials' enforcement of public'sallegedly superior easement rights, pursuant toTexas Open Beaches Act (OBA), violated her con-stitutional property rights. The United States Dis-trict Court for the Southern District of Texas, Ken-neth M. Hoyt, J., 485 F.Supp.2d 793, dismissedcomplaint, and landowner appealed. The Fifth Cir-cuit Court of Appeals, 566 F.3d 490, affirmed inpart and certified questions.

Holding: The Supreme Court, Wainwright, J., asmatter of first impression, held that an avulsiveevent that moves mean high tide line and vegetationline suddenly, causing former dry beach to becomepart of State-owned wet beach, does not automatic-ally deprive private property owner, through“rolling” easement, of her right to exclude publicfrom new dry beach; disapproving Arrington v. Tex.Gen. Land Office, 38 S.W.3d 764, Feinman v. State, 717 S.W.2d 106, Moody v. White, 593 S.W.2d372, Matcha v. Mattox, 711 S.W.2d 95.

Questions answered.

Medina, J., filed dissenting opinion in which Lehr-mann, J., joined.

West Headnotes

[1] States 360 4.4(3)

360 States360I Political Status and Relations

360I(A) In General360k4.4 Powers Reserved to States

360k4.4(3) k. Other Particular Powers.Most Cited CasesThe law of real property is, under the federal con-stitution, left to the individual states to develop andadminister.

[2] Water Law 405 2647

405 Water Law405XV Navigable Waters

405XV(C) Lands Under Water405XV(C)1 Ownership and Control in

General405k2646 Ownership by State

405k2647 k. In General. Most CitedCases

Water Law 405 2651




405k2651 k. Title and Rights Heldin Public Trust. Most Cited Cases

Water Law 405 2660

405 Water Law

Page 1--- S.W.3d ----, 2010 WL 4371438 (Tex.)(Cite as: 2010 WL 4371438 (Tex.))

© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.

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405XV Navigable Waters405XV(C) Lands Under Water

405XV(C)1 Ownership and Control inGeneral

405k2658 Land Between High andLow Water Marks, Tidelands, Flats, and Foreshore

405k2660 k. Public Trust. MostCited CasesThe soil covered by the bays, inlets, and arms of theGulf of Mexico within tidewater limits belongs tothe State, and constitutes public property that isheld in trust for the use and benefit of all thepeople; only the legislature can grant to privateparties title to submerged lands that are part of thepublic trust.

[3] Water Law 405 2528


405XV(A) In General405k2516 Navigability in General

405k2528 k. Ebb and Flow of Tide.Most Cited CasesThe bays, inlets, and other waters along the GulfCoast which are subject to the ebb and flow of thetide of the Gulf of Mexico are “navigable waters.”

[4] Easements 141 51

141 Easements141II Extent of Right, Use, and Obstruction

141k51 k. Purposes of Use. Most Cited Cases

Easements 141 52


141k52 k. Persons Entitled to Use. MostCited CasesEasements exist for the benefit of the easementholder for a specific purpose.

[5] Easements 141 1

141 Easements141I Creation, Existence, and Termination

141k1 k. Nature and Elements of Right. MostCited CasesAn easement does not divest a property owner oftitle, but allows another to use the property for thatpurpose.



141k39 Extent of Right141k42 k. By Express Grant or Reserva-

tion. Most Cited Cases

Easements 141 54


141k54 k. Alteration. Most Cited CasesThe existence of an easement in general terms im-plies a grant of unlimited reasonable use such as isreasonably necessary and convenient and as littleburdensome as possible to the servient owner.



141k56 Obstruction or Disturbance141k57 k. In General. Most Cited Cases

Because the easement holder is the dominant estateowner and the land burdened by the easement is theservient estate, the property owner may not inter-fere with the easement holder's right to use the ser-vient estate for the purposes of the easement.



141k46 Location141k47 k. In General. Most Cited Cases

Easements 141 48(6)













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141k46 Location141k48 Ways

141k48(6) k. Change of Location.Most Cited CasesEasement boundaries are generally static and at-tached to a specific portion of private property.

[9] Water Law 405 1493

405 Water Law405VI Riparian and Littoral Rights

405VI(E) Accretion, Reliction, and Avulsion405k1492 Title to Land Formed by Accre-

tion or Lost Through Reliction; Effect on AdjacentOwners' Boundaries

405k1493 k. In General. Most CitedCasesLittoral property owners gain or lose land that isgradually or imperceptibly added to or taken awayfrom their banks or shores through “erosion,” thewearing away of land, and “accretion,” the enlarge-ment of the land.

[10] Water Law 405 2639


405XV(B) Rights of Public405XV(B)6 Public Uses Other Than Nav-

igation405k2639 k. Use of Shores or Banks.

Most Cited Cases

Water Law 405 2653




405k2653 k. Effect of Accretionand Reliction. Most Cited CasesIf an avulsive event moves the mean high tide lineand vegetation line suddenly and perceptibly caus-ing the former dry beach to become part of State-

owned wet beach or completely submerged, theprivate property owner is not automatically de-prived of her right to exclude the public from thenew dry beach, through a “rolling” easement thatwould have the effect of allowing a public use ease-ment to migrate onto previously unencumberedproperty; in those situations, when changes occursuddenly and perceptibly to materially alter littoralboundaries, the land encumbered by the easement islost to the public trust, along with the easement at-tached to that land, and the State may seek to estab-lish another easement, as permitted by the OpenBeaches Act or the common law, on the newly cre-ated dry beach to enforce an asserted public right touse private land; disapproving Arrington v. Tex.Gen. Land Office, 38 S.W.3d 764, Feinman v. State, 717 S.W.2d 106, Moody v. White, 593 S.W.2d372, Matcha v. Mattox, 711 S.W.2d 95. V.T.C.A.,Natural Resources Code §§ 61.001 et seq.

Certified Question on Appeal from the UnitedStates District Court for the Southern District ofTexas.J. David Breemer, Martha HardwickHofmeister, Carol Severance, for Appellant.

Greg W. Abbott, Kent C. Sullivan, Jeffrey L. Rose,Rafael Edward Cruz, Karen Watson Kornell, DanielL. Geyser, Ken Cross, Brian E. Berwick, ClarenceAndrew Weber, David S. Morales and James C. Ho, for Appellee.

Barry C. Willey, for Kurt Sistrunk.

Charles Rice Young, for Surfrider Foundation.

Ted Hirtz, for Surfside Property Owners.

James H. Barrow, for Texas Wildlife Association.

Michael V. Powell, for Texas Landowners Council.

Lynn E. Blais, for University of Texas School ofLaw.

Matthew Joseph Festa, for Matthew J. Festa.

J. Gregory Hudson, for Texas Conference of Urban





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Counties.

Sidney S. McClendon III, for Texas Chapter of theAmerican Shore & Beach Preservation Assoc.

Justice WAINWRIGHT delivered the opinion ofthe Court, in which Justice HECHT, JusticeGREEN, Justice JOHNSON, Justice WILLETT,and Justice GUZMAN joined.

Justice MEDINA delivered a dissenting opinion, inwhich Justice LEHRMANN joined.Chief Justice JEFFERSON did not participate in thedecision.*1 This case comes before us in the form of certi-fied questions from the United States Court of Ap-peals for the Fifth Circuit. Pursuant to article V,section 3-c of the Texas Constitution and TexasRule of Appellate Procedure 58.1, we answer thefollowing questions:

1. Does Texas recognize a “rolling” public beach-front access easement, i.e., an easement in favorof the public that allows access to and use of thebeaches on the Gulf of Mexico, the boundary ofwhich easement migrates solely according to nat-urally caused changes in the location of the ve-getation line, without proof of prescription, ded-ication or customary rights in the property so oc-cupied?

2. If Texas recognizes such an easement, is it de-rived from common law doctrines or from a con-struction of the [Open Beaches Act]?

3. To what extent, if any, would a landowner beentitled to receive compensation (other than theamount already offered for removal of thehouses) under Texas's law or Constitution for thelimitations on use of her property effected by thelandward migration of a rolling easement ontoproperty on which no public easement has beenfound by dedication, prescription, or custom?

Severance v. Patterson, 566 F.3d 490, 503-04 (5thCir.2009), certified questions accepted, 52 Tex.

Sup.Ct. J. 741 (May 15, 2009).FN1 The central is-sue is whether private beachfront properties onGalveston Island's West Beach are impressed with aright of public use under Texas law without proofof an easement.

Oceanfront beaches change every day. Over timeand sometimes rather suddenly, they shrink orgrow, and the tide and vegetation lines make cor-responding shifts. Beachfront property lines retractor extend as previously dry lands become sub-merged by the surf or become dry after being sub-merged. Accordingly, public easements that burdenthese properties along the sea are also dynamic.They may shrink or expand gradually with theproperties they encumber. Once established, we donot require the State to re-establish easements eachtime boundaries move due to gradual and imper-ceptible changes to the coastal landscape. However,when a beachfront vegetation line is suddenly anddramatically pushed landward by acts of nature, anexisting public easement on the public beach doesnot “roll” inland to other parts of the parcel or ontoa new parcel of land. Instead, when land and the at-tached easement are swallowed by the Gulf of Mex-ico in an avulsive event, a new easement must beestablished by sufficient proof to encumber thenewly created dry beach bordering the ocean. Thesepublic easements may gradually change size andshape as the respective Gulf-front properties theyburden imperceptibly change, but they do not “roll”onto previously unencumbered private beachfrontproperty when avulsive events cause dramaticchanges in the coastline.

Legal encumbrances or reservations on privateproperty titles on West Beach in Galveston Islanddating from original land grants during the Repub-lic of Texas or at the inception of the State of Texascould provide a basis for a public easement by cus-tom or reveal inherent restrictions on the titles ofthe privately owned portions of these beaches. Un-der Mexican law, which governed Texas prior to1836, colonization of beachfront lands was pre-cluded for national defense and commercial pur-










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poses without approval of the “federal Supreme Ex-ecutive Power” of Mexico, presumably the MexicanPresident. However, in 1840 the Republic of Texas,as later confirmed by the State of Texas, grantedprivate title to West Galveston Island without reser-vation by the State of either title to beachfrontproperty or any public right to use the nowprivately owned beaches. Public rights to use ofprivately owned property on West Beach in Galve-ston Island, if such rights existed at that time, wereextinguished in the land patents by the Republic ofTexas to private parties. In some states, backgroundprinciples of property law governing oceanfrontproperty provide a basis for public ownership oruse of the beachfront property. Such expansiveprinciples are not extant in the origins of Texas. In-deed, the original transfer by the Republic toprivate parties forecloses the argument that back-ground principles in Texas common law provide abasis for impressing the West Beach area with apublic easement, absent appropriate proof.

*2 The Texas Open Beaches Act (OBA) providesthe State with a means of enforcing public rights touse of State-owned beaches along the Gulf of Mex-ico and of privately owned beach property alongthe Gulf of Mexico where an easement is estab-lished in favor of the public by prescription or ded-ication, or where a right of public use exists “byvirtue of continuous right in the public.” TEX.NAT. RES.CODE §§ 61.012, .013(a). When pro-mulgated in 1959, the OBA did not purport to cre-ate new substantive rights for public easementsalong Texas's ocean beaches and recognized thatmere pronouncements of encumbrances on privateproperty rights are improper. Because we find noright of public use in historic grants to private own-ers on West Beach, the State must comply withprinciples of law to encumber privately owned re-alty along the West Beach of Galveston Island.

I. Background

In April 2005, Carol Severance purchased threeproperties on Galveston Island's West Beach. “West

Beach” extends from the western edge of Galve-ston's seawall along the beachfront to the westerntip of the island. One of the properties, the KennedyDrive property, is at issue in this case.FN2 A rentalhome occupies the property. The parties do not dis-pute that no easement has ever been established onthe Kennedy Drive property. A public easement foruse of a privately owned parcel seaward of Sever-ance's Kennedy Drive property preexisted her pur-chase. That easement was established in a 1975judgment in the case of John L. Hill, Attorney Gen-eral v. West Beach Encroachment, et al., Cause No.108,156 in the 122nd District Court, GalvestonCounty, Texas. Five months after Severance's pur-chase, Hurricane Rita devastated the property sub-ject to the easement and moved the line of vegeta-tion landward. The entirety of the house on Sever-ance's property is now seaward of the vegetationline. The State claimed a portion of her propertywas located on a public beachfront easement and aportion of her house interfered with the public's useof the dry beach. When the State sought to enforcean easement on her private property pursuant to theOBA, Severance sued several State officials in fed-eral district court. She argued that the State, in at-tempting to enforce a public easement, withoutproving its existence, on property not previouslyencumbered by an easement, infringed her federalconstitutional rights and constituted (1) an unreas-onable seizure under the Fourth Amendment, (2) anunconstitutional taking under the Fifth and Four-teenth Amendments, and (3) a violation of her sub-stantive due process rights under the FourteenthAmendment.

The State officials filed motions to dismiss on themerits and for lack of jurisdiction. The district courtdismissed Severance's case after determining herarguments regarding the constitutionality of arolling easement were “arguably ripe,” but deficienton the merits. Not presented with the informationconcerning the Republic's land grant, the court heldthat, according to Texas property law, an easementon a parcel landward of Severance's property pre-existed her ownership of the property and that after





an easement to private beachfront property hadbeen established between the mean high tide andvegetation lines, it “rolls” onto new parcels of re-alty according to natural changes to those boundar-ies. Severance v. Patterson, 485 F.Supp.2d 793,802-04 (S.D.Tex.2007). Severance only appealedher Fourth and Fifth Amendment challenges to therolling easement theory. On appeal, the UnitedStates Court of Appeals for the Fifth Circuit de-termined her Fifth Amendment takings claim wasnot ripe, but certified unsettled questions of statelaw to this Court to guide its determination on herFourth Amendment unreasonable seizure claim.Severance, 566 F.3d at 500.

A. Texas Property Law in Coastal Areas

*3 [1] We have not been asked to determine wheth-er a taking would occur if the State ordered removalof Severance's house, although constitutional pro-tections of property rights fortify the conclusionswe reach. The certified questions require us to ad-dress the competing interests between the State'sasserted right to a migratory public easement to useprivately owned beachfront property on GalvestonIsland's West Beach and the rights of the privateproperty owner to exclude others from her property.The “law of real property is, under [the federal]Constitution, left to the individual states to developand administer.” Phillips Petrol. Co. v. Mississippi,484 U.S. 469, 484, 108 S.Ct. 791, 98 L.Ed.2d 877(1988) (quoting Hughes v. Washington, 389 U.S.290, 295, 88 S.Ct. 438, 19 L.Ed.2d 530 (1967)(Stewart, J., concurring)); Stop the Beach Renour-ishment, Inc. v. Fla. Dep't of Envtl. Prot., ---U.S. ----, 130 S.Ct. 2592, 2612, 177 L.Ed.2d 184 (2010)(“The Takings Clause only protects property rightsas they are established under state law, not as theymight have been established or ought to have beenestablished.”); Oregon ex rel. State Land Bd. v.Corvallis Sand & Gravel Co., 429 U.S. 363, 377,97 S.Ct. 582, 50 L.Ed.2d 550 (1977) (explainingthat “subsequent changes in the contour of the land,as well as subsequent transfers of the land, are gov-erned by the state law” (citation omitted)).

Texas has a history of public use of Texas beaches,including on Galveston Island's West Beach. See,e.g., Matcha v. Mattox, 711 S.W.2d 95, 99(Tex.App.-Austin 1986, writ ref'd n.r.e.) (holdingthat “[n]o one doubts that proof exists from whichthe district court could conclude that the public ac-quired an easement over Galveston's West Beachby custom”), cert. denied, 481 U.S. 1024, 107 S.Ct.1911, 95 L.Ed.2d 517 (1987); Feinman v. State,717 S.W.2d 106, 113 (Tex.App.-Houston [1st Dist.]1986, writ ref'd n.r.e.) (discussing evidence presen-ted at the trial court that showed “public use ofWest Beach since before Texas gained its inde-pendence from Mexico”). These rights of use wereproven in courtrooms with evidence of public en-joyment of the beaches dating to the nineteenthcentury Republic of Texas. But that history doesnot extend to use of West Beach properties, re-cently moved landward of the vegetation line by adramatic event, that before and after the event havebeen owned by private property owners and werenot impressed with pre-existing public easements.On one hand, the public has an important interest inthe enjoyment of Texas's public beaches. But on theother hand, the right to exclude others fromprivately owned realty is among the most valuableand fundamental of rights possessed by privateproperty owners.

1. Defining Public Beaches in Texas

The Open Beaches Act states the policy of the Stateof Texas for enjoyment of public beaches along theGulf of Mexico. The OBA declares the State's pub-lic policy to be “free and unrestricted right of in-gress and egress” to State-owned beaches and toprivate beach property to which the public “has ac-quired” an easement or other right of use to thatproperty. TEX. NAT. RES.CODE § 61.011(a). Itdefines public beaches as:

*4 any beach area, whether publicly or privatelyowned, extending inland from the line of meanlow tide to the line of vegetation bordering on theGulf of Mexico to which the public has acquired

































the right of use or easement to or over the area byprescription, dedication, presumption, or has re-tained a right by virtue of continuous right in thepublic since time immemorial, as recognized inlaw and custom. This definition does not includea beach that is not accessible by a public road orpublic ferry as provided in Section 61.021 of thiscode.

Id. § 61.001(8).FN3 Privately owned beaches maybe included in the definition of public beaches. Id.The Legislature defined public beach by two criter-ia: physical location and right of use. A publicbeach under the OBA must border on the Gulf ofMexico. Id. The OBA does not specifically refer toinland bodies of water. Along the Gulf, publicbeaches are located on the ocean shore from theline of mean low tide to the line of vegetation, sub-ject to the second statutory requirement explainedbelow. Id. The area from mean low tide to meanhigh tide is called the “wet beach,” because it is un-der the tidal waters some time during each day. Thearea from mean high tide to the vegetation line isknown as the “dry beach.”

The second requirement for a Gulf-shore beach tofall within the definition of “public beach” is thepublic must have a right to use the beach. This rightmay be “acquired” through a “right of use or ease-ment” or it may be “retained” in the public by vir-tue of continuous “right in the public since time im-memorial.” Id.

The wet beaches are all owned by the State ofTexas,FN4 which leaves no dispute over the pub-lic's right of use. See Luttes v. State, 159 Tex. 500,324 S.W.2d 167, 169, 191-92 (Tex.1958); TEX.NAT. RES.CODE §§ 61.011, .161 (recognizing thepublic policies of the public's right to use publicbeaches and the public's right to ingress and egressto the sea). However, the dry beach often isprivately owned and the right to use it is not pre-sumed under the OBA.FN5 The Legislature recog-nized that the existence of a public right to an ease-ment in privately owned dry beach area of WestBeach is dependant on the government's establish-

ing an easement in the dry beach or the public'sright to use of the beach “by virtue of continuousright in the public since time immemorial....” TEX.NAT RES.CODE § 61.001(8). Accordingly, wherethe dry beach is privately owned, it is part of the“public beach” if a right to public use has been es-tablished on it. See id. Thus, a “public beach” in-cludes but is broader than beaches owned by theState in those instances in which an easement forpublic use is established in the dry beach area. Id.Public beaches include Gulf-front wet beaches,State-owned dry beaches and private property in thedry beaches on which a public easement has beenestablished.

In this case, before Hurricane Rita, Severance'sKennedy Drive property was landward of the veget-ation line. After Hurricane Rita, because the stormmoved the vegetation line landward, the propertybetween Severance's land and the sea that was sub-ject to a public easement was submerged in the surfor became part of the wet beach. Severance'sKennedy Drive parcel and her house are no longerbehind the vegetation line but neither are they loc-ated in the wet beach owned by the State. At least aportion of Severance's Kennedy Drive property andall of her house are now located in the dry beach.The question is did the easement on the propertyseaward of Severance's property “roll” onto Sever-ance's property? In other words, is Severance'shouse now located on part of the “public beach”and thereby subject to an enforcement action to re-move it under the OBA? From the Fifth Circuit'sstatement of the case, we understand that no ease-ment has been proven to exist on Severance's prop-erty under the OBA or the common law.FN6 Wealso presume that there are no express limitations orreservations in Severance's title giving rise to apublic easement. The answer to the rolling ease-ment question thus turns on whether Texas commonlaw recognizes such an inherent limitation onprivate property rights along Galveston's WestBeach, and if not, whether principles of Texasproperty law provide for a right of public use ofbeaches along the Gulf Coast.











2. History of Beach Ownership Along the Gulf ofMexico

*5 [2][3] Long-standing principles of Texas prop-erty law establish parameters for our analysis. It iswell-established that the “soil covered by the bays,inlets, and arms of the Gulf of Mexico within tide-water limits belongs to the State, and constitutespublic property that is held in trust for the use andbenefit of all the people.” Lorino v. Crawford Pack-ing Co., 142 Tex. 51, 175 S.W.2d 410, 413(Tex.1943); Landry v. Robison, 110 Tex. 295, 219S.W. 819, 820 (Tex.1920) (“For our decisions areunanimous in the declaration that by the principlesof the civil and common law, soil under navigablewaters was treated as held by the state or nation intrust for the whole people.” FN7); De Meritt v.Robison Land Comm'r, 102 Tex. 358, 116 S.W.796, 797 (Tex.1909) (holding “[i]n the contempla-tion of law,” soil lying below the line of ordinaryhigh tide, “was not land, but water”); see also TEX.NAT. RES.CODE § 11.012(c) (“The State of Texasowns the water and the beds and shores of the Gulfof Mexico and the arms of the Gulf of Mexico with-in the boundaries provided in this section, includingall land which is covered by the Gulf of Mexicoand the arms of the Gulf of Mexico either at lowtide or high tide.”). These lands are part of the pub-lic trust, and only the Legislature can grant toprivate parties title to submerged lands that are partof the public trust. Lorino, 175 S.W.2d at 414; seealso TH Invs., Inc. v. Kirby Inland Marine, L.P.,218 S.W.3d 173, 182-83 (Tex.App.-Houston [14thDist.] 2007, pet. denied) (holding that lands sub-merged in the Gulf belong to the State) (citationsomitted), cert. denied, --- U.S. ----, 129 S.Ct. 899,173 L.Ed.2d 107 (2009).

Current title to realty and corresponding encum-brances on the property may be affected in import-ant ways by the breadth of and limitations on priorgrants and titles. We review the original Mexicanand Republic of Texas grants and patents to landsabutting the sea in West Galveston Island.FN8 TheRepublic of Texas won her independence from

Mexico in 1836. Mexico's laws prohibited coloniza-tion of land within ten leagues of the coast withoutapproval from the president. General Law of Colon-ization, art. 4 (Mex., Aug. 18, 1824), reprinted in 1H.P.N. GAMMEL, THE LAWS OF TEXAS1822-1897 [hereinafter “GAMMEL, THE LAWSOF TEXAS”], at 97, 97 (Austin, Gammel Book Co.1898).FN9 Title to West Beach property was firstgranted in November 1840 by the Republic ofTexas to Levi Jones and Edward Hall in a singlepatent (the “Jones and Hall Grant”). See SeawayCo. v. Att'y Gen., 375 S.W.2d 923, 928(Tex.Civ.App.-Houston 1964, writ ref'd n.r.e.) .FN10 After admission to the Union in 1845, theState of Texas by legislation in 1852 and 1854 firstconfirmed the validity of the Jones and Hall Grantand then disclaimed title to those lands. In 1852,the State declared that it “hereby releases and relin-quishes forever, all of her title to such lots onGalveston Island as are now in the actual posses-sion and occupation of persons who purchased un-der the [Jones and Hall Grant].” Act approved Feb.16, 1852, 4th Leg., R.S., ch. 119, § 1, 1852 Tex.Gen. Laws 142, 142, reprinted in 3 GAMMEL,THE LAWS OF TEXAS, at 1020, 1020; Act ofFeb. 8, 1854, 5th Leg., R. S., ch. 73, § 1, 1854 Tex.Special Laws 125, 125-26, reprinted in 4 GAM-MEL, THE LAWS OF TEXAS, at 125, 125-26(confirming the 1840 Jones and Hall Grant and“disclaim[ing] any title in and to the lands de-scribed in said patent, in favor of the grantees andthose claiming under them”).FN11 In 1854, theState affirmed its intent to grant ownership of allland in West Beach up to the public trust to Jonesand Hall with no express reservation of either titleto the property or a public right to use the beaches.FN12 The government relinquished all title in theJones and Hall Grant, without reserving any right touse of the property. The Republic could have re-served the right of the public to use the beachfrontproperty, “but the plain language of the grant showsthe Republic of Texas did not do so.” Seaway Co.,375 S.W.2d at 929. All the Gulf beachland in WestGalveston Island that extended to the public trustwas conveyed to private parties by the sovereign






























Republic of Texas as later affirmed by the State ofTexas.

*6 Having established that the State of Texasowned the land under Gulf tidal waters, the ques-tion remained how far inland from the low tide linedid the public trust-the State's title-extend. Weanswered that question in Luttes v. State. ThisCourt held that the delineation between State-owned submerged tidal lands (held in trust for thepublic) and coastal property that could be privatelyowned was the “mean higher high tide” line underSpanish or Mexican grants and the “mean hightide” line under Anglo-American law. FN13 159Tex. 500, 324 S.W.2d 167, 191-92 (Tex.1958). Thewet beach is owned by the State as part of the pub-lic trust, and the dry beach is not part of the publictrust and may be privately owned. See generally id.Prior to Luttes, there was a question whether thepublic trust extended to the vegetation line. Luttesestablished the landward boundary of the publictrust at the mean high tide line. Luttes, 324 S.W.2dat 187-88.

These boundary demarcations are a direct responseto the ever-changing nature of the coastal landscapebecause it is impractical to apply static real prop-erty boundary concepts to property lines that aredelineated by the ocean's edge. The sand does notstay in one place, nor does the tide line. While thevegetation line may appear static because it doesnot move daily like the tide, it is constantly affectedby the tide, wind, and other weather and natural oc-currences.

A person purchasing beachfront property along theTexas coast does so with the risk that their propertymay eventually, or suddenly, recede into the ocean.When beachfront property recedes seaward and be-comes part of the wet beach or submerged underthe ocean, a private property owner loses that prop-erty to the public trust. We explained in State v.Balli:

Any distinction that can be drawn between the al-luvion of rivers and accretions cast up by the sea

must arise out of the law of the seashore ratherthan that of accession and be based ... upon theancient maxim that the seashore is common prop-erty and never passes to private hands.... [This]remains as a guiding principle in all or nearly alljurisdictions which acknowledge the commonlaw....

144 Tex. 195, 190 S.W.2d 71, 100 (Tex.1945).Likewise, if the ocean gradually recedes away fromthe land moving the high tide line seaward, aprivate property owner's land may increase at theexpense of the public trust. See id. Regardless ofthese changes, the boundary remains fixed(relatively) at the mean high tide line. See Luttes,324 S.W.2d at 191-93. Any other approach wouldleave locating that boundary to pure guesswork. SeeCoastal Indus. Water Auth. v. York, 532 S.W.2d949, 952 n. 1 (Tex.1976).

In 1959, the Legislature enacted the Open BeachesAct to address responses to the Luttes opinion es-tablishing the common law landward boundary ofState-owned beaches at the mean high tide line. TheLegislature feared that this holding might “give en-couragement to some overanxious developers tofence the seashore” as some private landowners had“erected barricades upon many beaches, some ofthese barricades extending into the water.” TEX.LEGIS. BEACH STUDY COMM., 57TH LEG.,R.S., THE BEACHES AND ISLANDS OFTEXASS [hereinafter “BEACH STUDY COMM.,BEACHES AND ISLANDS OF TEXAS”] 1(1961), available at http://www.lrl.state.tx.us/scanned/interim/56/56-B352.pdf; TEX. LEG. INTERIM BEACH STUDY COMM.,65TH LEG., R.S., FOOTPRINTS ON THE SANDSOF TIMEE [hereinafter “BEACH STUDYCOMM., FOOTPRINTS”] 22 (1969), available athttp://www.lrl.state.tx.us/scanned/interim/60/B352.pdf.The OBA declared the State's public policy for thepublic to have “free and unrestricted access” toState-owned beaches, the wet beach, and the drybeach where the public “has acquired” an easement















or other right to use that property. TEX. NAT.RES.CODE § 61.011(a). To enforce this policy, theOBA prohibits anyone from creating, erecting, orconstructing any “obstruction, barrier, or restraintthat will interfere with the free and unrestrictedright of the public” to access Texas beaches wherethe public has acquired a right of use or easement.Id. § 61.013(a). The Act authorizes the removal ofbarriers or other obstructions on

*7 state-owned beaches to which the public hasthe right of ingress and egress bordering on theseaward shore of the Gulf of Mexico or any lar-ger area extending from the line of mean low tideto the line of vegetation bordering on the Gulf ofMexico if the public has acquired a right of useor easement to or over the area by prescription,dedication, or has retained a right by virtue ofcontinuous right in the public.

Id. §§ 61.012, .013(a) (emphasis added).

The OBA does not alter Luttes. It enforces the pub-lic's right to use the dry beach on private propertywhere an easement exists and enforces public rightsto access and use State-owned beaches. Therefore,the OBA, by its terms, does not create or diminishsubstantive property rights. BEACH STUDYCOMM., FOOTPRINTS 22 (stating that the“statute cannot truly be said to create any newrights”); Richard J. Elliott, Open Beaches Act: Pub-lic Rights to Beach Access, 28 BAYLOR L.REV.383, 392 (1976) (“In terms of pure substantive law,the Open Beaches Act probably creates no rights inthe public which did not previously exist under thecommon law.”). In promulgating the OBA, the Le-gislature seemed careful to preserve private prop-erty rights by emphasizing that the enforcement ofpublic use of private beachfront property can occurwhen a historic right of use is retained in the publicor is proven by dedication or prescription. SeeTEX. NAT. RES.CODE § 61.013(a), (c). The OBAalso specifically disclaims any intent to take rightsfrom private owners to Gulf-shore beach property.Id. § 61.023; see Seaway Co., 375 S.W.2d at 930(“There is nothing in the Act which seeks to take

rights from an owner of land.”). Within these ac-knowledgments, the OBA proclaims that beachesshould be open to the public. Certainly, the OBAguards the right of the public to use public beachesagainst infringement by private interests. But, asexplained, the OBA is not contrary to private prop-erty rights at issue in this case under principles ofTexas law. The public has a right to use the WestGalveston beaches when the State owns the beachesor the government obtains or proves an easementfor use of the dry beach under the common law orby other means set forth in the OBA.FN14

In 1969, the Legislature's Interim Beach StudyCommittee, chaired by Senator A.R. Schwartz ofGalveston County, confirmed the view that:

[The OBA] does not, and can not, declare that thepublic has an easement on the beach, a right ofaccess over private property to and from theState-owned beaches bordering on the Gulf ofMexico. An easement is a property interest; theState can no more impress private property withan easement without compensating the owner ofthe property than it can build a highway acrosssuch land without paying the owner.

BEACH STUDY COMM., FOOTPRINTS 17. TheInterim Beach Study Committee was created,among other reasons, to assure that beach develop-ment be undertaken to serve the best interests of thepeople of Texas and to study methods of procuringright-of-ways for roads parallel to the beaches,easements for ingress and egress to the beach, park-ing for beach access, methods for negotiating withlandowners for additional easements, and rights forlandowners to construct works for the protection oftheir property. Id. at 1-2.

B. Background on Severance's Property

*8 Carol Severance purchased the Kennedy Driveproperty on Galveston Island's West Beach in 2005.The Fifth Circuit explained that “[n]o easement hasever been established on [her] parcel via prescrip-









tion, implied dedication, or continuous right.” 566F.3d at 494. The State obtained the Hill judgment in1975 that encumbered a strip of beach seaward ofSeverance's property. Severance's Kennedy Driveparcel was not included in the 1975 judgment.However, the parties dispute whether or not Sever-ance's parcel was ever subject to a public easement.

In 1999, the Kennedy Drive house was on a TexasGeneral Land Office (GLO) list of approximately107 Texas homes located seaward of the vegetationline after Tropical Storm Frances hit the island in1998. In 2004, the GLO again determined that theKennedy Drive home was located “wholly or inpart” on the dry beach in 2004, but did not threatenpublic health or safety and, at the time, was subjectto a GLO two-year moratorium order. When Sever-ance purchased the property, she received an OBA-mandated disclosure explaining that the propertymay become located on a public beach due to natur-al processes such as shoreline erosion, and if thathappened, the State could sue seeking to forciblyremove any structures that come to be located onthe public beach. See TEX. NAT. RES.CODE §61.025. Winds attributed to Hurricane Rita shiftedthe vegetation line further inland in September2005. In 2006, the GLO determined that Sever-ance's house was entirely within the public beach.

The moratorium for enforcing the OBA on Sever-ance's properties expired on June 7, 2006. Sever-ance received a letter from the GLO requiring herto remove the Kennedy Drive home because it waslocated on a public beach. A second letter reiteratedthat the home was in violation of the OBA and mustbe removed from the beach, and offered her$40,000 to remove or relocate it if she acted beforeOctober 2006. She initiated suit in federal court.The Fifth Circuit certified questions of Texas law tothis Court.

II. Dynamic Public Beachfront Easements

The first certified question asks if Texas recognizes“a ‘rolling’ public beachfront access easement, i.e.,

an easement in favor of the public that allows ac-cess to and use of the beaches on the Gulf of Mex-ico, the boundary of which easement migratessolely according to naturally caused changes in thelocation of the vegetation line, without proof ofprescription, dedication, or customary rights in theproperty so occupied?” 566 F.3d at 504. We havenever held that the State has a right in privatelyowned beachfront property for public use that existswithout proof of the normal means of creating aneasement. And there is no support presented for theproposition that, during the time of the Republic ofTexas or at the inception of our State, the State re-served the oceanfront for public use. In fact, as dis-cussed above, the Texas Legislature expressly dis-claimed any interest in title obtained from the Jonesand Hall Grant after our State was admitted to theUnion. See Section I.A.2, supra; see also SeawayCo., 375 S.W.2d at 928 (“On November 28, 1840,the Republic of Texas issued its patent to LeviJones and Edward Hall to 18,215 acres of land onGalveston Island. This grant covered all of Galve-ston Island except the land covered by the MenardGrant covering the east portion of the Island.”).Therefore, considering the absence of any historiccustom or inherent title limitations for public use onprivate West Beach property, principles of propertylaw answer the first certified question.

*9 [4][5][6][7] Easements exist for the benefit ofthe easement holder for a specific purpose. Aneasement does not divest a property owner of title,but allows another to use the property for that pur-pose. See Marcus Cable Assocs., L.P. v. Krohn, 90S.W.3d 697, 700 (Tex.2002) (explaining that aneasement relinquishes a property owner's right toexclude someone from their property for a particu-lar purpose) (citations omitted). The existence of aneasement “in general terms implies a grant of un-limited reasonable use such as is reasonably neces-sary and convenient and as little burdensome aspossible to the servient owner.” Coleman v. Foris-ter, 514 S.W.2d 899, 903 (Tex.1974). An easementappurtenant “defines the relationship of two piecesof land”-a dominant and a servient estate. See 7

















THOMPSON ON REAL PROPERTY §60.02(f)(1), at 469 (David A. Thomas, ed.2006).Because the easement holder is the dominant estateowner and the land burdened by the easement is theservient estate, the property owner may not inter-fere with the easement holder's right to use the ser-vient estate for the purposes of the easement. Dryev. Eagle Rock Ranch, Inc., 364 S.W.2d 196, 207(Tex.1963) (citation omitted); Vrazel v. Skrabanek,725 S.W.2d 709, 711 (Tex.1987).

[8] Easement boundaries are generally static and at-tached to a specific portion of private property. SeeHolmstrom v. Lee, 26 S.W.3d 526, 533(Tex.App.-Austin 2000, no pet.) (“Once estab-lished, the location or character of the easementcannot be changed without the consent of theparties.”); see also 7 THOMPSON ON REALPROPERTY § 60.04(c)(1)(ii), at 538-40. “As ageneral rule, once the location of an easement hasbeen established, neither the servient estate ownernor the easement holder may unilaterally relocatethe servitude.” JON W. BRUCE & JAMES W.ELY, JR., THE LAW OF EASEMENTS AND LI-CENSES IN LAND § 7:13, at 7-30 (2009). There-fore, a new easement must be re-established for itto encumber a part of the parcel not previously en-cumbered. See id.

While the boundaries of easements on the beach arenecessarily dynamic due to the composition of thebeach and its constantly changing boundaries, ease-ments for public use of privately owned dry beachdo not necessarily burden the area between themean high tide and vegetation lines when the landoriginally burdened by the easement becomes sub-merged by the ocean. They do not automaticallymove to the new properties; they must be proven.

Like easements, real property boundaries are gener-ally static as well. But property boundaries estab-lished by bodies of water are necessarily dynamic.Because those boundaries are dynamic due to natur-al forces that affect the shoreline or banks, the legalrules developed for static boundaries are somewhatdifferent. See York, 532 S.W.2d at 952 (discussing

erosion, accretion, and avulsion doctrines affectingproperty boundaries and riparian ownership in theHouston Ship Channel).

*10 The nature of littoral property boundaries abut-ting the ocean not only incorporates the daily ebbsand flows of the tide, but also more permanentchanges to the coastal landscape due to weather andother natural forces. FN15 Shoreline property own-ership is typically delineated by boundaries such asthe mean high tide and vegetation lines becausethey are easy to reference and locate. Sand and wa-ter are constantly moving and changing the land-scape whether it is gradual and imperceptible orsudden and perceptible.

[9] Courts generally adhere to the principle that lit-toral property owners gain or lose land that isgradually or imperceptibly added to or taken awayfrom their banks or shores through erosion, thewearing away of land, and accretion, the enlarge-ment of the land. Id. at 952. Avulsion, as derivedfrom English common law, is the sudden and per-ceptible change in land and is said not to divest anowner of title. Id. We have never applied the avul-sion doctrine to upset the mean high tide lineboundary as established by Luttes. FN16 324S.W.2d at 191.

Property along the Gulf of Mexico is subjected toseasonal hurricanes and tropical storms, on top ofthe every-day natural forces of wind, rain, and tidalebbs and flows that affect coastal properties andshift sand and the vegetation line. This is an ordin-ary hazard of owning littoral property. And, whilelosing property to the public trust as it becomes partof the wet beach or submerged under the ocean isan ordinary hazard of ownership for coastal prop-erty owners, it is far less reasonable to hold that apublic easement can suddenly encumber an entirelynew portion of a landowner's property that was notpreviously subject to that right of use. See, e.g.,Phillips Petrol., 484 U.S. at 482 (discussing the im-portance of “honoring reasonable expectations inproperty interests[,]” but ultimately holding theproperty owner's expectations in that situation were



















unreasonable). Gradual movement of the vegetationline and mean high tide line due to erosion or accre-tion have very different practical implications.

[10] Like littoral property boundaries along theGulf Coast, the boundaries of corresponding publiceasements are also dynamic. The easements' bound-aries may move according to gradual and imper-ceptible changes in the mean high tide and vegeta-tion lines. However, if an avulsive event moves themean high tide line and vegetation line suddenlyand perceptibly causing the former dry beach to be-come part of State-owned wet beach or completelysubmerged, the private property owner is not auto-matically deprived of her right to exclude the publicfrom the new dry beach. In those situations, whenchanges occur suddenly and perceptibly to materi-ally alter littoral boundaries, the land encumberedby the easement is lost to the public trust, alongwith the easement attached to that land. Then, theState may seek to establish another easement aspermitted by law on the newly created dry beach toenforce an asserted public right to use private land.

*11 It would be an unnecessary waste of public re-sources to require the State to obtain a new judg-ment for each gradual and nearly imperceptiblemovement of coastal boundaries exposing a newportion of dry beach. These easements are estab-lished in terms of boundaries such as the mean hightide line and vegetation line; presumably public usemoves according to and with those boundaries sothe change in public use would likewise be imper-ceptible. Also, when movement is gradual,landowners and the State have ample time to reacha solution as the easement slowly migrates land-ward with the vegetation line. Conversely, whendrastic changes expose new dry beach and theformer dry beach that may have been encumberedby a public easement is now part of the wet beachor completely submerged under water, the Statemust prove a new easement on the area. Becausesudden and perceptible changes by nature occurvery quickly, it would be impossible to prove con-tinued public use in the new dry beach, and it

would be unfair to impose such drastic restrictionsthrough the OBA upon an owner in those circum-stances without compensation. See Westgate, Ltd. v.State, 843 S.W.2d 448, 452 (Tex.1992) (explainingthe circumstances from which an action for inversecondemnation may arise).

If the public has an easement in newly created drybeach, as with any other property, the State mustprove it. Having divested title to all such WestBeach property in the early years of the Republic,the State of Texas can only acquire or burdenprivate property according to the law. Thus, a pub-lic beachfront easement in West Beach, althoughdynamic, does not roll. The public loses that in-terest in privately owned dry beach when the landto which it is attached becomes submerged under-water. While these boundaries are somewhat dy-namic to accommodate the beach's everyday move-ment and imperceptible erosion and accretion, theState cannot declare a public right so expansive asto always adhere to the dry beach even when theland the easement originally attached to is eroded.This could divest private owners of significantrights without compensation because the right toexclude is one of the most valuable and fundament-al rights possessed by property owners. See Town ofFlower Mound v. Stafford Estates Ltd. P'ship, 135S.W.3d 620, 634 (Tex.2004) (referring to the rightto exclude as “ ‘one of the most essential sticks inthe bundle of rights that are commonly character-ized as property’ ”) (quoting Dolan v. City ofTigard, 512 U.S. 374, 393, 114 S.Ct. 2309, 129L.Ed.2d 304 (1994)). We have never held the drybeach to be encompassed in the public trust. SeeLuttes, 324 S.W.2d at 191-92.

On this issue of first impression, we hold that Texasdoes not recognize a “rolling” easement on Galve-ston's West Beach. Easements for public use ofprivate dry beach property do change along withgradual and imperceptible changes to the coastallandscape. But, avulsive events such as storms andhurricanes that drastically alter pre-existing littoralboundaries do not have the effect of allowing a
















public use easement to migrate onto previously un-encumbered property. This holding shall not be ap-plied to use the avulsion doctrine to upset the long-standing boundary between public and private own-ership at the mean high tide line. That result wouldbe unworkable, leaving ownership boundaries tomere guesswork. The division between public andprivate ownership remains at the mean high tideline in the wake of naturally occurring changes,even when boundaries seem to change suddenly.FN17 The State, as always, may act within a validexercise of police power to impose reasonable regu-lations on coastal property or prove the existence ofan easement for public use, consistent with theTexas Constitution and real property law.

*12 The dissent would reach a different result byarguing the public has the right to use the dry beachregardless of the boundaries of private property orthe constitutional protections accorded those rights.That approach would raise constitutional concerns.“To say that the appropriation of a public easementacross a landowner's premises does not constitutethe taking of a property interest but rather ... ‘amere restriction on its use,’ ... is to use words in amanner that deprives them of all their ordinarymeaning.” Nollan v. Cal. Coastal Comm'n, 483U.S. 825, 831, 107 S.Ct. 3141, 97 L.Ed.2d 677(1987) (citation omitted); see Elliott, 28 BAYLORL.REV. at 385-86 (“Since a simple legislative de-claration of policy [such as declaring a right to aneasement across private property], cannot providethe requisite due process, the affirmative policystatement of the Open Beaches Act, without morewould appear patently unconstitutional. The legis-lature has apparently sought to avoid such constitu-tional problems by qualifying affirmatively-de-clared public rights with an interesting conditionprecedent. That condition is that the public musthave already acquired these identical rights underthe common law doctrines of prescription or dedic-ation.”).

According to the dissent, an easement could remainin the dry beach even if the land encumbered by the

original easement becomes submerged by the oceanand the dry beach is composed of new land that wasnot previously encumbered by an easement. Its ar-gument is likewise based on the premise that an al-leged easement previously established did not justencumber the dry beach portion of Severance's par-cel, but that it encumbered the entire lot. This is in-consistent with easement law. See Holmstrom v.Lee, 26 S.W.3d 526, 533 (Tex.App.-Austin 2000,no pet.) (“Once established, the location or charac-ter of the easement cannot be changed without theconsent of the parties.”); 7 THOMPSON ON REALPROPERTY § 60.04(c)(1)(ii), at 538-40. While thespecific use granted by an easement is a fundament-al consideration, there is no law to support the dis-sent's contention that an easement forever remainsin the dry beach (i.e., can move onto a new portionof the parcel or a different parcel) absent mutualconsent. See JON W. BRUCE & JAMES W. ELY,THE LAW OF EASEMENTS AND LICENSES INLAND § 7:13, at 7-30 (2009). This would result indepriving oceanfront property owners of a substan-tial right (the right to exclude) without requiringcompensation or proof of actual use of the propertyallegedly encumbered whenever natural forcescause the vegetation line to move inland so thatproperty not formerly part of the dry beach be-comes part of the dry beach. This argument blursthe line between ownership and right to use of aportion of a parcel-the dry beach-and is in tensionwith our decision in Luttes that set the boundarybetween State and privately owned property at themean high tide line. See 324 S.W.2d at 191-92. Thedissent further dismisses Severance's grievance as agamble she took and lost by purchasing oceanfrontproperty in Galveston and argues that she wouldnot be entitled to compensation even though aneasement had never been established on the portionof her parcel that is now in the dry beach. It notesthe OBA requirement of disclosure in sales con-tracts of the risk that property could become locatedon a public beach and subject to an easement in thefuture. See TEX. NAT. RES.CODE § 61.025. Thisis incorrect for three reasons. First, beachfrontproperty owners take the risk that their property













could be lost to the sea, not that their property willbe encumbered by a easement they never agreed toand that the State never had to prove. Second, put-ting a property owner on notice that the State mayattempt to take her property for public use at someundetermined point in the future does not relievethe State from the legal requirement of proving orpurchasing an easement nor from the constitutionalrequirement of compensation if a taking occurs. Wedo not hold that circumstances do not exist underwhich the government can require conveyance ofproperty or valuable property rights, such as theright to exclude, but it must pay to validly obtainsuch right or have a sufficient basis under its policepower to do so. See Nollan, 483 U.S. at 841-42(noting that public use of private beaches may be a“good idea” but “if [the state] wants an easementacross [private] property, it must pay for it”). AsJustice Oliver Wendell Holmes, Jr. explained, “[A]strong public desire to improve the public conditionis not enough to warrant achieving the desire by ashorter cut than the constitutional way of paying forthe change.” Pa. Coal Co. v. Mahon, 260 U.S. 393,416, 43 S.Ct. 158, 67 L.Ed. 322 (1922). Third,simply advising in a disclosure that the State mayattempt to enforce an easement on privately ownedbeachfront property does not dispose of the owner'srights.

*13 Our holding does not necessarily preclude afinding that an easement exists. We have determ-ined that the history of land ownership in WestBeach refutes the existence of a public easement byvirtue of continuous right “in the public since timeimmemorial, as recognized in law and custom,”TEX. NAT. RES.CODE § 61.001(8), and Texaslaw does not countenance an easement migratingonto previously unencumbered beachfront propertydue to the Hurricane. We do not have a sufficientrecord to determine whether an easement has beenproven, and the question was not certified. See id.

The public may have a superior interest in use ofprivately owned dry beach when an easement hasbeen established on the beachfront. But it does not

follow that the public interest in the use of privatelyowned dry beach is greater than a private propertyowner's right to exclude others from her land whenno easement exists on that land. A few states havedeclared that longstanding property principles givethe state (and therefore, the public) the right to allbeachfront property or the right to use evenprivately owned beachfront property ipse dixit. Forexample, the Oregon Supreme Court has held thatthe dry beach was subject to public use because thepublic use was inherent in the history of title tosuch lands. Stevens v. City of Cannon Beach, 317Or. 131, 854 P.2d 449, 456-57 (Or.1993) (citingState ex rel. Thornton v. Hay, 254 Or. 584, 462P.2d 671 (Or.1969)). The state of Oregon's view isthat private property owners along the beach “neverhad the property interests that they claim weretaken” in the dry sand, the area between the highwater line and vegetation line. Id. at 457. The Courtexplained “the common-law doctrine of custom asapplied to Oregon's ocean shores ... is not ‘newlylegislated or decreed’; to the contrary, to use thewords of the Lucas court, it ‘inhere[s] in the title it-self, in the restrictions that background principlesof the State's law of property and nuisance alreadyplaced upon land ownership.” Id., 854 P.2d at 456(quoting Lucas v. S.C. Coastal Council, 505 U.S.1003, 1004, 112 S.Ct. 2886, 120 L.Ed.2d 798(1992)). The Supreme Court of Hawaii has heldthat issuance of a Hawaiian land patent confirmsonly a limited property interest as compared to typ-ical land patents on the continental United States.See Pub. Access Shoreline Haw. v. Haw. Cnty.Planning Comm'n, 79 Hawai‘i 425, 903 P.2d 1246(Haw.1995) (noting that “the western concept ofexclusivity is not universally applicable inHawai‘i”). New Jersey extends the public trust doc-trine to encompass the dry beach as well as the wetbeach. See Borough of Neptune City v. Borough ofAvon-by-the-Sea, 61 N.J. 296, 294 A.2d 47, 49(N.J.1972) (“[T]he public trust doctrine dictatesthat the beach and the ocean waters must be open toall on equal terms and without preference ....”); seealso Matthews v. Bay Head Improvement Ass'n, 95N.J. 306, 471 A.2d 355, 365 (N.J.1984). Unlike the















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West Beach of Galveston Island, these jurisdictionshave long-standing restrictions inherent in titles tobeach properties or historic customs that impressprivately owned beach properties with public rights.

*14 On the other hand, the Supreme Court of NewHampshire held that a statute that recognized a gen-eral recreational easement for public use in the “drysand area” (comparable to our dry beach), violatesthe takings provisions of the state and federal con-stitutions, except for those areas where there is an“established and acknowledged public easement.”Opinion of the Justices, 139 N.H. 82, 649 A.2d 604,608 (N.H.1994). The public trust ends at the highwater mark and private property extends landwardbeyond that. Id. The Supreme Court of Idaho ap-plied the public trust doctrine to Lake Coeurd'Alene and held that the public trust doctrine wasinapplicable in an action to force owners to removea seawall. State ex rel. Haman v. Fox, 100 Idaho140, 594 P.2d 1093 (Idaho 1979). The private prop-erty at issue was obtained by patent from the U.S.Government in 1892 and the seawall was builtabove the mean high water mark of the lake. Id.

A few Texas courts of appeals have reached resultscontrary to the holding in this opinion. In Feinman,the court held that public easements for use of drybeach can roll with movements of the vegetationline. 717 S.W.2d at 110-11. Feinman could find nocontinuous right or custom dating from “time im-memorial” or even back to the origins of the Re-public or the State of Texas as a basis to encumberprivate property rights along West Beach. Id. Fein-man states that “[c]ourts have upheld the concept ofa rolling easement along rivers and the sea formany years without using the phrase ‘rolling ease-ment,’ “ and cites, but does not discuss, seven casesfor its holding.FN18 Id. at 110. Only one of theopinions is from a Texas court, Luttes, and neitherit nor the other cited cases discuss rolling or migrat-ory easements. Luttes established the landwardboundary of title to the public trust along Gulf-frontbeaches. The Sotomura opinion is based on differ-ent common law notions of public rights to and lim-

itations on private ownership of beaches in Hawaii,as discussed above. Cnty. of Haw. v. Sotomura, 55Haw. 176, 517 P.2d 57, 61 (Haw.1973). Feinmanneither addressed the legal significance of the Jonesand Hall grant on the question of public encum-brance on private beach properties of Galveston'sWest Beach nor identified any basis in Texas law orhistory for a continuous legal right or custom onwhich to ground the existence of a migratory ease-ment. One other appellate decision also recognizesa rolling easement, relying on Feinman. Arringtonv. Tex. Gen. Land Office, 38 S.W.3d 764, 766(Tex.App.-Houston [14th Dist.] 2001, no pet.).

The first Texas case to address the concept of arolling easement in Galveston's West Beach isMatcha v. Mattox, 711 S.W.2d 95(Tex.App.-Austin 1986, writ ref'd n.r.e.). In 1983,Hurricane Alicia shifted the vegetation line on thebeach such that the Matchas' home had moved intothe dry beach. The court held that legal custom-“areflection in law of long-standing public prac-tice”-supported the trial court's determination that apublic easement had “migrated” onto private prop-erty. Id. at 101. The court reasoned that Texas lawgives effect to the long history of recognized publicuse of Galveston's beaches, citing accounts of pub-lic use dating back to time immemorial, 1836 inthis case. However, the legal custom germane to thematter is not the public use of beaches, it is whetherthe right in the public to a rolling easement has ex-isted since time immemorial. The Matcha court'srecognition of long-standing “custom” in public useof Galveston's beaches misses the point of whethera custom existed to give effect to a legal concept ofa rolling beach, which would impose inherent limit-ations on private property rights. As explainedabove, the original patent of Galveston's WestBeach from the Republic to Jones and Hall refutesthe existence of custom, as private owners who pur-chased beach properties obtained title without limit-ation on private rights of ownership and without en-cumbrances for public use.

*15 We disapprove of courts of appeals opinions to






















the extent they are inconsistent with our holding inthis case. See Arrington v. Tex. Gen. Land Office,38 S.W.3d 764, 766 (Tex.App.-Houston [14thDist.] 2001, no pet.); Feinman, 717 S.W.2d at108-11; Moody v. White, 593 S.W.2d 372, 379(Tex.Civ.App.-Corpus Christi 1979, no writ);Matcha, 711 S.W.2d at 98-100; See Neal E. Pirkle,Maintaining Public Access to Texas CoastalBeaches: The Past and the Future, 46 BAYLORL.REV. 1093, 1106-07 (1994) (questioning whetherthe rolling easement theory should apply to ease-ments by prescription and dedication).

III. Conclusion

Land patents from the Republic of Texas in 1840,affirmed by legislation in the new State, conveyedthe State's title in West Galveston Island to privateparties and reserved no ownership interests orrights to public use in Galveston's West Beach. Ac-cordingly, there are no inherent limitations on titleor continuous rights in the public since time imme-morial that serve as a basis for engrafting publiceasements for use of private West Beach property.Although existing public easements in the drybeach of Galveston's West Beach are dynamic, asnatural forces cause the vegetation and the meanhigh tide lines to move gradually and impercept-ibly, these easements does not migrate or roll land-ward to encumber other parts of the parcel or newparcels as a result of avulsive events. New publiceasements on the adjoining private properties maybe established if proven pursuant to the OpenBeach Act or the common law. FN19

Justice MEDINA, joined by Justice LEHRMANN,dissenting.Texas beaches have always been open to the public.The public has used Texas beaches for transporta-tion, commerce, and recreation continuously fornearly 200 years.FN1 The Texas shoreline is an ex-pansive yet diminishing FN2 public resource, andwe have the most comprehensive public beach ac-cess laws in the nation. Since its enactment in 1959,the Texas Open Beaches Act (“OBA”) has provided

an enforcement mechanism for the public's com-mon law right to access and to use Texas beaches.FN3 The OBA enforces a reasoned balancebetween private property rights and the public'sright to free and unrestricted use of the beach.FN4

Today, the Court's holding disturbs this balance andjeopardizes the public's right to free and openbeaches.

After chronicling the history of Texas property law,the Court concludes that easements defined by nat-ural boundaries are, by definition, dynamic. ---S.W.3d ----. Yet, in a game of semantics, the Courtfinds that such dynamic easements do not “roll.” Id.at ----. The Court further distinguishes betweenmovements by accretion and erosion and move-ments by avulsion, finding that gradual movementsshift the easement's boundaries, but sudden move-ments do not. The Court's distinction protects pub-lic beach rights from so-called gradual events suchas erosion but not from more dramatic events likestorms, even though both events are natural risksknown to the property owner. Because the Court'svague distinction between gradual and sudden orslight and dramatic changes to the coastline jeop-ardizes the public's right to free and open beaches,recognized over the past 200 years, and threatens toembroil the state in beach-front litigation for thenext 200 years, I respectfully dissent.

I. Texas Coastal Property Ownership

*16 Property lines on the coast are defined by mi-gratory, dynamic boundaries. In Luttes v. State, wedetermined that Anglo-American common law ap-plied to land grants after 1840 FN5 and thus affixedthe mean high tide as the boundary between stateand private ownership of land abutting tidal waters.159 Tex. 500, 324 S.W.2d 167 (Tex.1958). Thebeach is commonly known to lie between the meanlow tide and vegetation line. For over fifty years,the OBA has assimilated that common knowledgeas a statutory definition as well. All land seaward ofthe mean high tide,FN6 known as the wet beach, isheld by the state in public trust. Luttes, 324 S.W.2d






















at 191-93; see State v. Balli, 144 Tex. 195, 190S.W.2d 71, 100 (Tex.1945) (recognizing the“ancient maxim that seashore is common propertyand never passes to private hands”). The landbetween the mean high tide and the vegetation lineis the dry beach and may be privately owned.Luttes, 324 S.W.2d at 191-93. I agree with theCourt that “[w]e have never held the dry beach tobe encompassed in the public trust.” --- S.W.3d ----.If this case were a matter of title, Luttes wouldprovide the answer: the mean high tide separatespublic and private property ownership interests. Butthis case is about the enforcement of a common laweasement that preserves the public's right to accessthe dry beach.

The mean low tide, mean high tide, and vegetationline are transitory. FN7 Landowners may own prop-erty up to the mean high tide. But the exact metesand bounds of the beachfront property line cannotbe ascertained with any specificity at any giventime other than by reference to the mean high tide.Through shoreline erosion, hurricanes, and tropicalstorms, these lines are constantly moving both in-land and seaward. In the West Bay system, whencethis litigation arose, forty-eight percent of theshoreline is retreating, forty-seven percent is stableand six percent is advancing, at an average rate of -2.9 feet per year.FN8 The beaches on west Galve-ston Island, where Severance's property is located,have even higher retreat rates (a loss of over sevenfeet per year) because of their exposure to windsand waves.FN9 Natural erosion from waves andcurrents causes an overall shoreline retreat for theentire Texas coast.FN10

These natural laws have compelled Texas commonlaw to recognize rolling easements.FN11 Ease-ments that allow the public access to the beachmust roll with the changing coastline in order toprotect the public's right of use. The dynamic prin-ciples that govern vegetation and tide lines musttherefore apply to determine the boundaries of pre-existing public beachfront easements. See Matchav. Mattox, 711 S.W.2d 95, 100 (Tex.App.-Austin

1986, writ ref'd n .r.e.) cert. denied, 481 U.S. 1024,107 S.Ct. 1911, 95 L.Ed.2d 517 (1987) (“An ease-ment fixed in place while the beach moves wouldresult in the easement being either under water orleft high and dry inland, detached from the shore.Such an easement, meant to preserve the publicright to use and enjoy the beach, would then ceasefunctioning for that purpose”). “The law cannotfreeze such an easement at one place anymore thanthe law can freeze the beach itself.” Id.

II. Texas Recognizes Rolling Easements

*17 The first certified question asks whether Texasrecognizes rolling beachfront access easements thatmove with the natural boundaries by which they aredefined. The answer is yes. The rolling easement“is not a novel idea.” Feinman, 717 S.W.2d at 110. Courts consistently recognize the migratingboundaries of easements abutting waterways to up-hold their purpose.FN12 Id. After all, “an easementis not so inflexible that it cannot accommodatechanges in the terrain it covers.” Id.

The law of easements, Texas law, and public policysupport the enforcement of rolling easements. Sucheasements follow the movement of the dry beach inorder to maintain their purpose and are defined bysuch purpose rather than geographic location. Theyare therefore affected by changes to the coast butnever rendered ineffective by the change. Theprimary objective is not to ensure the easement'sboundaries are fixed but rather that its purpose isnever defeated.

A. Texas Easement Law

An easement is a non-possessory property interestthat authorizes its holder to use the property of an-other for a particular purpose. Marcus Cable As-socs. v. Krohn, 90 S.W.3d 697, 700 (Tex.2002). “Agrant or reservation of an easement in general termsimplies a grant of unlimited reasonable use such asis reasonably necessary and convenient and as littleburdensome as possible to the servient owner.”



















Coleman v. Forister, 514 S.W.2d 899, 903(Tex.1974). However, the burden on the servientestate is secondary to ensuring that the purpose ofthe easement is reasonably fulfilled. For example,oil and gas leases convey an implied easement touse the surface as reasonably necessary to fulfill thepurpose of the lease. See Sun Oil Co. v. Whitaker,483 S.W.2d 808, 810 (Tex.1972) (recognizing thatthe use easement is not limited by fixed boundariesbut rather its purpose and use). The purpose of theeasement cannot expand, but under certain circum-stances, the geographic location of the easementmay. Compare Marcus Cable Assocs., 90 S.W.3d at701 (preventing easement holder from expandingpurpose of maintaining electric transmission or dis-tribution line to also include cable-television linesregardless of fact that lines could be run on exactsame geographic location) with Godfrey v. City ofAlton, 12 Ill. 29, (1850) (recognizing that a publiceasement for a public landing on specific waterwayis necessarily “inseparable from the margin of thewater, however that may fluctuate”).

Easements may be express or implied. Impliedeasements are defined by the circumstances thatcreate the implication. Ulbricht v. Friedman, 159Tex. 607, 325 S.W.2d 669, 677 (Tex.1959) (findingan implied easement to use lake water for cattle asthey were located upland and without any watersource). Express easements, however, must complywith the Statute of Frauds, which requires a de-scription of the easement's location. Pick v. Bartel,659 S.W.2d 636, 637 (Tex.1983). Under certain cir-cumstances, even express easement boundaries maybe altered to maintain the purpose of the easement.See Kothmann v. Rothwell, 280 S.W.3d 877, 880(Tex.App.-Amarillo 2009, no pet.) (recognizingmovement of drainage tracts to maintain easement'spurpose despite the expansion of original easementlocation); see also RESTATEMENT (THIRD) OFPROPERTY (SERVITUDES) § 4.1 (2000)(providing that an easement “should be interpretedto give effect to the intention of the parties ascer-tained from the language used in the instrument, orthe circumstances surrounding the creation of the

servitude, and to carry out the purpose for which itwas created”).

*18 Rolling beachfront access easements are im-plied by prescription or continuous use of the drybeach and are defined by their purpose and their dy-namic, non-static natural boundaries. To apply stat-ic real property concepts to beachfront easements isto presume their destruction. Hurricanes and tropic-al storms frequently batter Texas's coast. Avulsiveevents are not uncommon. The Court's failure to re-cognize the rolling easement places a costly and un-necessary burden on the state if it is to preserve ourheritage of open beaches.

The Court's conclusion that beachfront easementsare dynamic but do not roll defies not only existinglaw but logic as well. The definition of “roll” is “toimpel forward by causing to turn over and over on asurface.” Webster's Ninth New Collegiate Diction-ary (Merriam-Webster Inc.1983). “Dynamic”means “of or relating to physical force or energy”and “marked by continuous activity or change.” Id.Both terms express movement, but neither term islimited by speed or degree of movement.

The Court also illogically distinguishes betweenshoreline movements by accretion and avulsion. Onthe one hand, the Court correctly declines to applythe avulsion doctrine to the mean high tide. ---S.W.3d ----. This means a property owner loses titleto land if, after a hurricane or tropical storm, suchland falls seaward of the mean high tide. On theother hand, this same hurricane, under the Court'sanalysis, requires the state to compensate a propertyowner for the land that now falls seaward of the ve-getation line unless it was already a part of the pub-lic beachfront easement. Under the Court's analysis,the property line may be dynamic but beachfronteasements must always remain temporary; the pub-lic's right to the beach can never be established andwill never be secure.FN13

The Court's distinctions nullify the purpose ofrolling easements. I submit (in accord with severalother Texas appellate courts that have addressed the
























issue of rolling easements) that natural movementsof the mean high tide and vegetation line, sudden orgradual, re-establish the dynamic boundaries separ-ating public and private ownership of the beach, aswell as a pre-existing public beachfront accesseasement. So long as an easement was establishedover the dry beach before the avulsive event, itmust remain over the new dry beach without theburden of having to re-establish a previously exist-ing easement whose boundaries have naturally shif-ted.

Finally, I submit that once an easement is estab-lished, it attaches to the entire tract. Drye v. EagleRock Ranch, Inc., 364 S.W.2d 196, 207 (Tex.1963).Regardless of how many times the original tract issubdivided, the easement remains. Id. (enforcingpre-existing implied easement across subsequentlydivided tracts to fulfill its purpose).

Private ownership of Galveston Island originated intwo land grants issued by the Republic of Texas.First, it arose from the Menard Grant in 1838,which covers the east end of the Island. See SeawayCo., 375 S.W.2d at 928; City of Galveston v.Menard, 23 Tex. 349, 403-04 (1859). Second, it is-sued from the Jones and Hall Grant in 1840, whichencompasses 18,215 acres, and includes the WestBeach, where Severance's property is located. SeeSeaway Co., 375 S.W.2d at 928 (covering “all ofGalveston Island except the land covered by theMenard Grant covering the east portion of the Is-land”).

*19 The Court today reasons that because no ex-press easement was made in these original landgrants, no public easement can exist over the drybeach. --- S.W.3d ----. The Court, however, ignoresthe implied easement arising from the public's con-tinuous use of the beach for nearly 200 years. Thestate may have relinquished title in these originalgrants, but it did not relinquish the public's right toaccess, use, and enjoy the beach. See Ratliff, 13HOUS. L.REV. at 994 (recognizing that until Luttesthe public, as well as private landowners, believedbeaches to be public domain).

By implied prescription, implied dedication, or cus-tomary and continuous use, overwhelming evidenceexists that Texans have been using the beach fornearly 200 years. See Seaway Co., 375 S.W.2d at936 (finding that “owners, beginning with the ori-ginal ones, have thrown open the beach to publicuse and it has remained open”); see also supra n. 1.This evidence establishes that public beachfront ac-cess easements have been implied across this Texascoastline since statehood. As long as a dry beachexists, so too must beachfront access easements.Any other result deprives the public of its pre-existing, dominant right to unrestricted use and en-joyment of the public beach.

B. Texas Case Law

The Court states it is “unaware of any case law per-mitting such an expansive interpretation of ease-ment rights that would so unduly burden the under-lying servient estate.” --- S.W.3d---- (requiringeasements to be re-established over new dry beachafter each avulsive event). I submit that Texas caselaw not only recognizes the existence of publicbeachfront access easements but further that they“roll” with the movements of their dynamic, naturalboundaries. FN14

Before Luttes, the public assumed it had unrestric-ted access to use and enjoy the beach.FN15 AfterLuttes, in response to public concern over its rightto access Texas beaches, the Texas Legislaturepassed the OBA to ensure that Texas beaches re-mained open for public use. Challenged five yearslater, the Houston Court of Civil Appeals found thata public easement existed on the West Beach ofGalveston Island, forcing landowners to removebarriers and structures that prevented the public'saccess to and use of the public beach. Seaway Co.v. Attorney General, 375 S.W.2d at 940; see alsoMoody v. White, 593 S.W.2d 372, 376-79 (findingpublic easement over dry beach on Mustang Islandand requiring removal of structure preventing pub-lic access).






















In the years following the passage of the OBA, theshoreline naturally and predictably moved bothgradually and suddenly. Texas courts have re-peatedly held that once an easement is established,it expands or contracts (“rolls”), despite the suddenshift of the vegetation line. See Feinman, 717S.W.2d at 109-10 (after Hurricane Alicia); Arring-ton v. Tex. Gen. Land Office, 38 S.W.3d at 765(after Tropical Storm Frances); Brannan v. State,No. 01-08-00179-CV, 2010 WL 375921, *2(Tex.App.-Houston [1st Dist.] Feb. 4, 2010, pet.filed) (after unusually high tide or “bull tide”);Matcha, 711 S.W.2d at 100 (after hurricane of1983); Arrington v. Mattox, 767 S.W.2d at 958(after Hurricane Alicia). In short, Texas law has ad-opted “the rolling easement concept.” Feinman, 717S.W.2d at 110-11. The Court's refusal to follow ex-isting Texas law means that every hurricane seasonwill bring new burdens not only on the public'sability to access Texas's beaches but on the publictreasury as well.

C. Texas Public Policy

*20 The OBA codifies the public's pre-existingright of open access to Texas beaches:

It is declared and affirmed to be the public policyof this state that the public, individually and col-lectively, shall have the free and unrestrictedright of ingress and egress to and from the state-owned beaches bordering on the seaward shore ofthe Gulf of Mexico, or if the public has acquireda right of use or easement to or over an area byprescription, dedication, or has retained a right byvirtue of continuous right in the public, the publicshall have the free and unrestricted right of in-gress and egress to the larger area extending fromthe line of mean low tide to the line of vegetationbordering on the Gulf of Mexico.

TEX. NAT. RES.CODE § 61.011(a) (emphasis ad-ded). Migratory boundaries define rolling ease-ments, rather than fixed points. The line of vegeta-tion is “the extreme seaward boundary of natural

vegetation which spreads continuously inland.”TEX. NAT. RES.CODE § 61.001(5) (emphasis ad-ded). Public beach means

any beach area, whether publicly or privatelyowned, extending inland from the line of meanlow tide to the line of vegetation bordering on theGulf of Mexico to which the public has acquiredthe right of use or easement to or over the area byprescription, dedication, presumption, or has re-tained by virtue of continuous right in the publicsince time immemorial, as recognized in law andcustom.

TEX. NAT. RES.CODE § 61.001(8). The OBA re-cognizes the dynamic nature of beach boundariesby defining the public beach by reference to the ve-getation line and tide lines, which shift with themovements of the ocean, whether those movementsare gradual from erosion or dramatic from stormevents. Requiring that existing easements be re-established after every hurricane season defeats thepurpose of the OBA: to maintain public beach ac-cess.

i. Disclosure of Risk Requirement

For almost twenty-five years, the state has taken thefurther step of informing beachfront property pur-chasers of the rolling nature of the easement bur-dening their property. Amendments to the OBA in1985 make “pellucid that once an easement on thedry beach is established, its landward boundarymay therefore ‘roll,’ including over private prop-erty ”. Severance v. Patterson, 566 F.3d 490, 506(5th Cir.2009) (Wiener, J., dissenting) (emphasis inoriginal); see also Act of May 24, 1985, 69th Leg.,R.S., ch. 350, § 1, 1985 Tex. Gen. Laws 1419(codified as TEX. NAT. RES.CODE § 61.025).Sellers of property on or near the coastline are re-quired to include in the sales contract a “DisclosureNotice Concerning Legal and Economic Risks ofPurchasing Coastal Real Property Near a Beach.”TEX. NAT. RES.CODE § 61.025(a). The noticespecifically warns that





























If you own a structure located on coastal realproperty near a gulf coast beach, it may come tobe located on the public beach because of coastalerosion and storm events.... Owners of structureserected seaward of the vegetation line (or otherapplicable easement boundary) or that becomeseaward of the vegetation line as a result of nat-ural processes such as shoreline erosion are sub-ject to a lawsuit by the State of Texas to removethe structures.

*21 TEX. NAT. RES.CODE § 61.025(a) (emphasisadded). The language of the Act itself clearly iden-tifies the line of vegetation as an easement bound-ary and clearly recognizes the transient nature ofthese boundary lines. The vegetation line, “giventhe vagaries of nature, will always be in a state ofintermittent flux[,]” and consequently, “[s]hifts inthe vegetation line do not create new easements;rather they expand (or in the case of seaward shifts,reduce) the size and reach of one dynamic ease-ment.” Severance v. Patterson, 566 F.3d 490, 506(5th Cir.2009) (Wiener, J., dissenting). Severancepurchased her properties with contracts that notifiedher of these risks and nature of the rolling ease-ment.

ii. Constitutional Amendment Adopting theOpen Beaches Act

In November 2009, Texans adopted a constitutionalamendment that mirrors the policy and language ofthe OBA. The amendment adopts the OBA's defini-tion of “public beach” and reiterates that the pub-lic's easement is established under Texas commonlaw. TEX. CONST. art. I, § 33(a). It further ac-knowledges the permanent nature of the easement.Id. at § 33(b). To be consistent with the Texas Con-stitution, these easements must roll with the naturalchanges of the beach. The Court's failure to recog-nize the rolling nature of these easements is thusnot only contrary to common law and the publicpolicy of the state but also the will of the people ex-pressed in our constitution.

iii. Presumption of Public Easement Over DryBeach

Finally, in an OBA enforcement action, there is apresumption that the public has acquired an ease-ment over the dry beach, and a landowner like Sev-erance may present evidence to rebut the presump-tion. See TEX. NAT. RES.CODE § 61.020. The“title of the littoral owner does not include the rightto prevent the public from using the area for ingressand egress to the sea[,]” and “there is imposed onthe area [from mean low tide to the line of vegeta-tion] a common law right or easement in favor ofthe public for ingress and egress to the sea.” Id.Once a public beach easement is established, it isimplied that the easement moves up or back to eachnew vegetation line, and the state is not required torepeatedly re-establish that an easement exists up tothat new vegetation line. See Arrington v. Tex. Gen.Land Office, 38 S.W.3d at 766.

III. Rolling Easements Are Creatures of TexasCommon Law

The answer to the second certified question is thatthe common law rather than the OBA is the sourceof public beachfront access easements. The OBA,however, is consistent with the common law ofrolling easements and faithfully articulates thelongstanding policy of the state. The OBA is not arights-creating document but a mechanism for en-forcing property rights that the state has previouslyand independently obtained. See Arrington v. Mat-tox, 767 S.W.2d at 958. Such easements are estab-lished by prescription, dedication, or customary andcontinuous use. Guided by the common law, “[t]heOBA safeguards the public's common law ease-ment[,]” protecting the public's access to publicbeaches. Mikeska v. City of Galveston, 451 F.3d376, 378 (5th Cir.2006) (citing TEX. NAT.RES.CODE § 61.001(8)).

IV. No Compensation Owed to Beachfront Prop-erty Owners Whose Property Is Encumbered by







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a Rolling Easement

*22 The third certified question asks whether com-pensation is owed to landowners whose propertybecomes subject to a public beachfront access ease-ment after it rolls with natural shifts in theshoreline. When an act of nature destroys a piece ofcoastal property, no compensation is owed becausethere is no taking by the government. Likewise,when an act of nature changes the boundaries of thebeach, no compensation is owed when the govern-ment seeks to protect the already existent publicright of access to the beach. The government ismerely enforcing an easement whose boundarieshave shifted. The enforcement of rolling easementsdoes not constitute a physical taking nor does itconstitute a regulatory taking. Pre-existing rollingeasements affect a property right that the landownernever owned, namely, excluding the public fromthe beach. Because no property is taken, no com-pensation is owed.

A. No Physical Taking

The Texas Constitution guarantees that “[n]o per-son's property shall be taken, damaged, or des-troyed for or applied to public use without adequatecompensation being made, unless by the consent ofsuch person.” TEX. CONST. art. I § 17. Texaslandowners may assert an inverse condemnationclaim “when the government physically appropri-ates or invades the property, or when it unreason-ably interferes with the landowner's right to use andenjoy the property.” Westgate Ltd. v. State, 843S.W.2d 448, 452 (Tex.1992). By enforcing a pre-existing rolling easement, the state is not physicallytaking private property.

For property purchased after October 1986,landowners were expressly warned that a preexist-ing public easement of the dry beach restricts thelandowner's right to develop, maintain, or repairstructures that would prevent the public from usingand accessing the public beach. See TEX. NAT.RES.CODE § 61.025. The right to exclude the pub-

lic from the dry beach was never in the landowner'sbundle of sticks when she purchased the property.FN16 With such express notice, the state's enforce-ment of the public easement cannot be said to di-minish the landowner's reasonable investment-backed expectations. See Penn. Cent. Transp. Co. v.City of New York, 438 U.S. 104, 130-31, 98 S.Ct.2646, 57 L.Ed.2d 631 (1978). The state owes nocompensation for a property right that the landown-er does not actually possess.

For property purchased before 1986, enforcementof a pre-existing rolling easement also does notconstitute a physical taking. First, rolling easementsare rooted in the common law as a single easementwith dynamic boundaries. The public beach hasbeen “historically dedicated to the public use.”Brannan, 2010 WL 375921, at *21. It is not stateaction that subjects beachfront property to thisrolling easement but rather a force majeure. Id. Thestate merely enforces what has long been estab-lished in the common law. Almost every case ad-dressing this issue agrees there is no taking and thatthe landowner should bear the risks assumed bypurchasing property near the beach. “There is noth-ing in the [OBA] which seeks to take rights from anowner of land.... [I]t merely furnishes a means bywhich the members of the public may enforce suchcollective rights as they may have legally acquiredby reason of dedication, prescription or which mayhave been retained by continuous right.” SeawayCo., 375 S.W.2d at 930; see Arrington v. Mattox,767 S.W.2d at 958; Moody, 593 S.W.2d at 379;Brannan, 2010 WL 375921, at *19-20.

B. No Regulatory Taking

*23 The enforcement of rolling easements does notconstitute a regulatory taking. “When the owner ofreal property has been called upon to sacrifice alleconomically beneficial use in the name of thecommon good, that is, to leave his property eco-nomically idle, he has suffered a taking. Lucas v.S.C. Coastal Council, 505 U.S. 1003,1019, 112S.Ct. 2886, 120 L.Ed.2d 798 (1994) (establishing


























the total takings test).FN17 But there are two ex-ceptions. First, if the regulation restricts a use theowner does not have in his title, no taking has oc-curred. Id. at 1027. Second, if state common lawnuisance and property principles prohibit the de-sired use of the land, no taking has occurred. Id. at1029.

The first exception certainly applies to propertypurchased after 1986. As explained above, thelandowner cannot receive compensation for a prop-erty right that she never owned. Beachfront prop-erty purchasers whose sales contracts containedsuch a deed restriction never owned the right to ex-clude the public from using and enjoying the drybeach.

The second exception involves the state's commonlaw nuisance laws and other background propertyprinciples that prohibit or restrict the landowner'sspecific use of property. As explained above, therolling easement is rooted in background principlesof Texas common law and is supported by the OBAand the Texas Constitution. Due to natural pro-cesses, as land moves seaward of the vegetationline, that strip of land becomes subject to the pre-existing public easement established by either pre-scription, dedication, or continuous and customaryuse. This strip of land is the servient estate, en-cumbered by the dominant estate, the rolling ease-ment, to reasonably fulfill its stated purpose. Dryev. Eagle Rock Ranch, Inc., 364 S.W.2d 196, 207(Tex.1963). The common law has always restricteda landowner's use of the dry beach. Arrington v.Mattox, 767 S.W.2d at 958 (citing Texas cases thatfound no taking and recognizing “fundamental dis-tinction between a governmental taking of an ease-ment through an act of sovereignty and judicial re-cognition of a common law easement acquiredthrough historical public use”); see Lucas, 505 U.S.at 1028-29 (finding enforcement of existing ease-ment not a taking).

C. Texas Nuisance Law

Texas nuisance laws permit the enforcement ofrolling easements without requiring compensation.This area of the law imposes a general limitation onlandowners. Property owners may not use theirproperty in a way that unreasonably interferes withthe property rights of others. See Schneider Nat.Carriers, Inc. v. Bates, 147 S.W.3d 264, 269(Tex.2004). An action that does not begin as a nuis-ance may nevertheless become a nuisance due tochanging circumstances. See Atlas Chem. Indus.,Inc. v. Anderson, 524 S.W.2d 681, 685-86(Tex.1975) (finding that heavy rains causing previ-ously discharged pollutants from upstream manu-facturing plant to spread more broadly acrossdownstream land to be a nuisance). Movements ofthe coast change circumstances and thus affectproperty rights of both private beachfront ownersand the public. As a result, a beach house thatmoves seaward of the vegetation line because ofnatural changes to the coast becomes a nuisance, re-stricting the public's ability to use and enjoy thebeach.

*24 In this unique area of property law, rollingbeachfront easements are unlike any other type ofeasement abutting a waterway. They are not onlysubject to the ebb and flow of the tide, but also theocean's surging waves. The ocean is unlike any oth-er body of water.FN18 The primary movement ofthe coastline is through hurricanes and tropicalstorms.FN19 Requiring the state to re-establishpublic beach easements after storms places an un-reasonable burden on the state, a burden that wasactually assumed by the landowner who purchasedproperty near the beach.

V. Conclusion

The Texas coastline is constantly changing and therisks of purchasing property abutting the ocean arewell known. The OBA further mandates the dis-closure of these risks in coastal purchase contracts.Insurance is available for some of these risks.FN20

It is unreasonable, however, to require the state andits taxpayers to shoulder the burden of these risks.























In my view, coastal property is encumbered by apre-existing rolling easement rooted in the commonlaw. The state is not responsible for the ocean'smovement and therefore owes no compensationwhen enforcing this existing easement. Because theCourt requires the state to re-establish its easementafter avulsive events and to pay landowners forrisks they have voluntarily assumed, I must dissent.I would instead follow the constitution and thelong-standing public policy of this state and holdthat the beaches of Texas are, and forever will be,open to the public.

FN1. We received amicus briefs from theTexas Landowners Council; the TexasWildlife Foundation; the Surfrider Founda-tion; the Galveston Chamber of Com-merce; Matthew J. Festa, Professor, SouthTexas College of Law; and Property Own-ers in Surfside Beach, Texas.

FN2. Severance owned three properties onWest Beach-on Gulf Drive, Kennedy Driveand Bermuda Beach Drive. Her originallawsuit included all three properties, butshe only appealed the trial court's judg-ment dismissing her claims as to two prop-erties. After oral argument to this Court onthe certified questions, Severance sold oneof two remaining homes at issue in aFEMA-funded buy-out program. Only theKennedy Drive property remains subject tothis litigation.

FN3. In 2009, Texas voters approved anamendment to the Constitution to protectthe public's right to “state-ownedbeach[es]” of the Gulf of Mexico. TEX.CONST. art. I, § 33. It protects public useof public beaches which, like the OBA, aredefined as State-owned beaches andprivately owned beachland “to which thepublic has acquired a right of use or ease-ment....” Although not at issue in this case,the amendment provides:

Section 1. Article I, Texas Constitution,is amended by adding Section 33 to readas follows:

Sec. 33. (a) In this section, “publicbeach” means a state-owned beach bor-dering on the seaward shore of the Gulfof Mexico, extending from mean lowtide to the landward boundary of state-owned submerged land, and any largerarea extending from the line of mean lowtide to the line of vegetation borderingon the Gulf of Mexico to which the pub-lic has acquired a right of use or ease-ment to or over the area by prescriptionor dedication or has established and re-tained a right by virtue of continuousright in the public under Texas commonlaw.

(b) The public, individually and collect-ively, has an unrestricted right to use anda right of ingress to and egress from apublic beach. The right granted by thissubsection is dedicated as a permanenteasement in favor of the public.

(c) The legislature may enact laws toprotect the right of the public to accessand use a public beach and to protect thepublic beach easement from interferenceand encroachments.

(d) This section does not create a privateright of enforcement.

FN4. State-owned beaches are the strips ofcoastal property “between mean low tideand mean high tide, which runs along theentire Gulf Coast, regardless of whetherthe property immediately landward isprivately or state owned.” Richard J. Elli-ott, The Texas Open Beaches Act: PublicRights to Beach Access, 28 BAYLORL.REV. 383, 384 (1976).







FN5. The OBA includes two stated pre-sumptions for purposes of ingress andegress to the sea. It provides that the titleof private owners of dry beach area in Gulfbeaches “does not include the right to pre-vent the public from using the area for in-gress and egress to the sea.” TEX. NAT.RES.CODE § 61.020(a)(1). In 1991, theOBA was amended to add a second pre-sumption that imposed “on the area a com-mon law right or easement in favor of thepublic for ingress and egress to the sea.”Id. § 61.020(a)(2). Although the constitu-tionality of these presumptions has beenquestioned, that issue is not before us. SeeSeaway Co. v. Att'y Gen., 375 S.W.2d 923,929-30 (Tex.Civ.App.-Houston 1964, writref'd n.r.e.).

FN6. That issue is not before us, but it maybe addressed in the federal courts.

FN7. “The bays, inlets, and other watersalong the Gulf Coast which are subject tothe ebb and flow of the tide of the Gulf ofMexico are defined as ‘navigable waters.’“ Lorino, 175 S.W.2d at 413 (citing City ofGalveston v. Mann, 135 Tex. 319, 143S.W.2d 1028 (1940); Crary v. Port AuthorChannel & Dock Co., 92 Tex. 275, 47S.W. 967 (1898)).

FN8. The briefs and the record do not ad-dress the early land grant of Galveston'sWest Beach.

FN9. The Mexican federal government“feared that an influx of foreigners alongthe border of the United States, or alongthe coast, might become too powerful, andbetray the country to a foreign power.”LEWIS N. DEMBITZ, A TREATISE ONLAND TITLES IN THE UNITEDSTATES § 73, at 558 (1895).

FN10. See also Jones and Hall Grant Pa-

pers, available at http://wwwdb.glo.state.tx.us/central/LandGrants/LandGrantsSearch.cfm (search abstractnumber 121, Galveston County).

FN11. The act reads: “Be it enacted by theLegislature of the State of Texas, That thepatent issued by the Commissioner of theGeneral Land [ O]ffice, on the twenty-eighth day of November, eighteen hundredand forty, to Levi Jones and Edward Hall,for lands on Galveston Island, be, and thesame is hereby confirmed, and the State ofTexas disclaims any title in and to thelands described in said patent, in favor ofthe grantees and those claiming underthem.” Act of Feb. 8, 1854, 5th Leg., R.S.,ch. 73, § 1, 1854 Tex. Special Laws 125,125-26, reprinted in 4 GAMMEL, THELAWS OF TEXAS, at 125, 125-26.

FN12. There is some historical evidencethat the Republic made an abortive attemptto parcel and sell title to lands on WestGalveston Island starting in 1837. See Actapproved June 12, 1837, 1st Cong., 1 Re-pub. Tex. Laws 267, 267 (1838), reprintedin 1 GAMMEL, THE LAWS OF TEXAS,at 1327, 1327 (authorizing sales of title tolots on Galveston Island by auction); An-nual Report of the Secretary of the Treas-ury, Nov. 1839, reprinted in 3 HARRIETSMITHER, JOURNALS OF THEFOURTH CONGRESS OF THE REPUB-LIC OF TEXAS 1839-1840, at 35, 45(Austin, Texas State Library 1931)(reporting treasury receipts “on accountSales Galveston Island”). In an 1860 man-damus proceeding, in light of then-lingering questions about the validity ofJones and Hall's title to West Beach, a dis-trict court directed the land commissionerto issue a single land patent to Jones andHall for all of West Beach. See Franklin v.Kesler, 25 Tex. 138, 142-43(1860)
























(describing the patent issued pursuant tomandamus). The February 15, 1852 act ex-pressly vested title in those claiming suc-cessor title under the Jones and Hall Grant,and the February 8, 1854 act confirms theJones and Hall Grant in its entirety. Fur-ther, Wilcox v. Chambers confirmed that iftitle of coastal lands were granted to for-eigners (non-Mexican individuals) prior to1840, the grants are presumed void absentspecific approval by the Mexican Presid-ent. 26 Tex. 181, 187 (1862).

Legislation and a patent (the “MenardGrant”) conveyed oceanfront property onthe east side of Galveston Island toprivate parties in 1836 and 1838. Mayor,Aldermen & Inhabitants of the City ofGalveston v. Menard, 23 Tex. 349, 391(1859).

FN13. Severance's parcel is not subject toSpanish or Mexican law. So, we refer tothe mean high tide line throughout thisopinion. On January 20, 1840, Texas adop-ted the common law of England as its ruleof decision, to the extent it was not incon-sistent with the Constitution of the Repub-lic of Texas or acts of its Congress. Act ap-proved Jan. 20, 1840, 4th Cong., R.S., § 1,1840 Repub. Tex. Laws 3, 3-4, reprintedin 2 GAMMEL, THE LAWS OF TEXAS,at 177, 177-80; Miller v. Letzerich, 121Tex. 248, 49 S.W.2d 404, 408 (Tex.1932)(explaining that “the validity and legal ef-fect of contracts and of grants of landmade before the adoption of the commonlaw must be determined according to thecivil law in effect at the time of thegrants”). Because the Jones and Hall Grantwas made in November 1840, land grantedunder that patent is governed by the com-mon law. See William Gardner Winters,Jr., The Shoreline for Spanish and MexicanGrants in Texas, 38 TEX. L.REV. 523

(1960) (discussing the history of Spanishand Mexican land patents and common lawbasis for shoreline boundaries).

FN14. In 1961, The Texas LegislativeBeach Study Committee further evidencedits recognition that private property rightsexist in the dry beaches by proposing tothe 57th Legislature that it come up withpractical methods for not only procuringeasements for ingress and egress tobeaches but also methods of “negotiationswith landowners for additional easements”for the “use and pleasure of the public,provided such lands or easements can beobtained without cost to the State.”BEACH STUDY COMM., BEACHESAND ISLANDS OF TEXAS xi. If Gulf-front dry beach property were State-ownedor already impressed with an easement forpublic use (as compared to ingress andegress), negotiations to obtain them wouldnot be necessary.

FN15. “Riparian” means “[o]f, relating to,or located on the bank of a river or stream(or occasionally another body of water,such as a lake).” BLACK'S LAW DIC-TIONARY 1352 (8th ed.2004). “Littoral”means “[o]f or relating to the coast orshore of an ocean, sea, or lake.” BLACK'SLAW DICTIONARY 952 (8th ed.2004).

FN16. Some states apply avulsion to de-termine that the mean high tide line as itexisted before the avulsive event remainsthe boundary between public and privateownership of beach property after theavulsive event; therefore, allowing privateproperty owners to retain ownership ofproperty that becomes submerged underthe ocean. See Walton Cnty. v. Stop theBeach Renourishment, 998 So.2d 1102,1116-17 (Fla.2008), aff'd sub nom. Stopthe Beach Renourishment, Inc. v. Fla.Dep't of Envtl. Prot., ---U.S. ----, 130 S.Ct.




















2592, 177 L.Ed.2d 184 (2010); CinqueBambini P'ship v. State, 491 So.2d 508,520 (Miss.1986). We have not acceptedsuch an expansive view of the doctrine,but, we need not make that determinationin this case.

FN17. We also do not address how artifi-cial accretions or other artificial changes inthe coastal landscape affect ownership.New Jersey v. New York, 523 U.S. 767,784, 118 S.Ct. 1726, 140 L.Ed.2d 993(1998) (explaining the littoral boundariesremained as they were before artificialland-filling increased the surface area ofEllis Island).

FN18. The cited cases are Barney v. City ofKeokuk, 94 U.S. 324, 339-40, 24 L.Ed. 224(1876); Luttes, 159 Tex. 500, 324 S.W.2d167; Cnty. of Haw. v. Sotomura, 55 Haw.176, 517 P.2d 57, 61 (Haw.1973); Horganv. Town Council, 32 R.I. 528, 80 A. 271(R.I.1911); City of Chicago v. Ward, 169Ill. 392, 48 N.E. 927 (Ill.1897); Godfrey v.City of Alton, 12 Ill. 29, 36 (1850); andMercer v. Denne, [1905] 2 Ch. 538 (Eng.).Feinman issued two months after Matchaand does not cite it for support.

FN19. We have not addressed in this opin-ion state police power, nuisance or otherremedies that may authorize the govern-ment to act in the interests of the health,safety and welfare of the public.

FN1. Historical records indicate that aferry from Galveston Island at San LuisPass was established in 1836. Seaway Co.v. Attorney General, 375 S.W.2d 923, 931(Tex.Civ.App.-Houston 1964, writ ref'dn.r.e.). To travel between the City ofGalveston Island and the ferry, the publictraveled by beach route. Id. There is evid-ence of an established stage coach route

traveling across the beach, and on May 23,1838, the Republic of Texas authorized amail route to run across the beach, whichran every two weeks. Id. Until TerminiRoad was built in 1956, “the only way totravel, except by private road inland withinfenced land, was by way of the beach.” Id.at 932. Testimony from earlier cases indic-ates that both locals and visitors to Galve-ston Island used the entire beach, “fromthe water line to the line of vegetation[,]”for driving, camping, fishing, and swim-ming. Id. (testimony of lifetime residentborn in 1879). Cars parked between thedunes for camping. Id. at 933. Finally,there is no evidence that fences were evererected across any part of the beach, onlyevidence that they were landward of thevegetation line to prevent cattle from goingonto the beach. Id. (testimony of lifetimeresident since 1875 reasoning that therewere no fences because “[n]o one woulddream any such thing as to block the drive-way, ... and the driveway was in use, I amsatisfied, at least more than a hundredyears ago”). Id.

FN2. Not only is Texas's coastline expans-ive, we also have the highest erosion ratein the nation, affecting “five to six feet ofsand annually.” Michael Hofrichter,Texas's Open Beaches Act: Proposed Re-forms Due to Coastal Erosion, 4 ENVT'L& ENERGY L. & POL'Y J. 147, 148(2009). This erosion rate causes coastalproperty lines to change annually.

FN3. It is important to note that the OBAonly applies to public beaches that borderthe Gulf of Mexico and are accessible bypublic road or ferry. TEX. NAT.RES.CODE §§ 61.013(c), 61.021.

FN4. See TEX. NAT. RES.CODE §61.0184 (providing procedural safeguardsfor property subject to OBA enforcement















































actions). It should be noted that while theGeneral Land Office contacted Severanceto tell her that it might file an enforcementaction to remove her encroachment on thepublic beach, the Office had not yet initi-ated such an action at the time of the litiga-tion that gave rise to these certified ques-tions. Justice Wiener's dissent in Sever-ance's federal action is particularly worthnoting. He maintains that this action “hasthe unintentional effect of enlisting thefederal courts and, via certification, the Su-preme Court of Texas, as unwitting foot-soldiers in this thinly veiled Libertariancrusade” whose quest ends with the evis-ceration of the Open Beaches Act. Sever-ance v. Patterson, 566 F.3d 490, 504 (5thCir.2009) (Wiener, J., dissenting). He ar-gues further that beyond her claim not be-ing ripe, Severance does not have standingbecause she attempts “to seek a benefitbased on prior state action to which shehas not only acceded and thereby forfeitedor waived any related claim, but for whichshe has presumably been remuneratedthrough an intrinsic diminution in the pur-chase price that she paid when she boughtthe already burdened beachfront land.” Id.at 505.

FN5. Texas adopted the common law in1840, which established the mean high tideas the boundary dividing the state-ownedseashore from private property. Luttes, 324S.W.2d at 169. For land grants or patentsthat became effective before 1840, Mexic-an/Spanish civil law applies, which recog-nized this tidal boundary to be the meanhigher high tide. Id. Because the meanhigh tide is measured with tide gauges andcalculates both daily high tides, it providesa more definitive boundary line than themean higher high tide, which only con-siders the higher of the two daily tides. Id.at 187 (recognizing the difficulty in prov-

ing “on such and such an occasion in suchand such a year or years one or more‘highest waves' actually reached this orthat irregular line on the ground”).

FN6. “[T]he average of highest daily watercomputed over or corrected to the regulartidal cycle of 18.6 years.” Luttes 324S.W.2d at 187.

FN7. The mean low tide and high tide areaverages assessed over a period of years.Their “actual determination at a givenpoint on the coastline requires scientificmeasuring equipment and complex calcu-lations extending over a lengthy period.Thus, as a practical matter, such physicaldetermination of the landowner's actualboundary is not normally feasible.”Richard Elliot, The Texas Open BeachesAct: Public Rights to Beach Access, 28BAYLOR L.REV. 383, 385 (1976). “Theline of vegetation, on the other hand, isreadily determinable with the naked eye atmost points along the Gulf beaches.” Id.However, all three lines are subject to thedaily movements of ocean, which shiftthese lines both gradually and suddenly.

FN8. Gibeaut, J. C., Waldinger, Rachel,Hepner, Tiffany, Tremblay, T. A., andWhite, W. A., 2003, Changes in bayshoreline position, West Bay system,Texas: The University of Texas at Austin,Bureau of Economic Geology, report of theTexas Coastal Coordination Council pursu-ant to National Oceanic and AtmosphericAdministration Award No. NA07OZ0134,under GLO contract no. 02-225R, 27 p. 14.

FN9. Id.

FN10. Id.

FN11. Beginning with the recognition thatproperty bounded by navigable waters is
















subject to the movements of the shoreline,Texas law has accepted the premise thatrolling easements are based upon. SeeLuttes 324 S.W.2d at 196; see also CoastalIndus. Water Auth. v. York, 532 S.W.2d949, 952 (Tex.1976). The Open BeachesAct codified the existing public policy thatbeaches on the Gulf should be free and un-restricted for the public's use and enjoy-ment. See TEX. NAT. RES.CODE §§61.011(a). Finally, case law dealing spe-cifically with the enforcement of a publicbeachfront easement, explicitly recognizesits rolling nature. Feinman v. State, 717S.W.2d 106, 111 (Tex.App.-Houston [1stDist.] 1986, writ ref'd n.r.e.); Matcha v.Mattox, 711 S.W.2d at 99; Arrington v.Tex. Gen. Land Office, 38 S.W.3d 764, 766(Tex. App .-Houston [14th Dist.] 2001, nopet.); Arrington v. Mattox, 767 S.W.2d957, 958 (Tex.App.-Austin 1989, writdenied), cert. denied, 493 U.S. 1073, 110S.Ct. 1119, 107 L.Ed.2d 1026 (1990).

FN12. This concept has long been recog-nized by courts across numerous jurisdic-tions. See Barney v. City of Keokuk, 94U.S. (4 Otto) 324, 339-40, 24 L.Ed. 224(1876) (finding no taking and public useeasement boundaries moved after cityfilled in and expanded street that wharfedout to banks of Mississippi River for pub-lic use); Luttes, 324 S.W.2d at 167; Cnty.of Hawaii v. Sotomura, 55 Haw. 176, 517P.2d 57, 62 (Haw.1973) (defining seawardproperty boundary to fall on the “upperreaches of the wash of the waves”); Hor-gan v. Town Council of Jamestown, 32 R.I.528, 80 A. 271, 276 (R.I.1911) (definingboundaries of public highway abutting wa-terway to be flexible); City of Chi. v.Ward, 169 Ill. 392, 48 N.E. 927 (Ill.1897)(upholding a statute mandating that landsshall be held for the use and purposes ex-pressed or intended); Godfrey v. City of

Alton, 12 Ill. 29, 35 (1850) (finding ease-ment by dedication for public landing mustattach to the waterway, “however that mayfluctuate,” otherwise “its enjoyment wouldbe precarious, and often destroyed”); Mer-cer v. Denne, [1905] 2 ch. 538 (Eng.)(recognizing a public easement by customfor fishermen to dry nets on the new por-tion of the beach that had been added tothe old beach overtime); Louisiana v. Mis-sissippi et al., 516 U.S. 22, 25, 116 S.Ct.290, 133 L.Ed.2d 265 (1995) (applyingrule that boundaries between states along ariver may naturally shift in accordancewith changes in the river channel); Geor-gia v. South Carolina, 497 U.S. 376,403-04, 110 S.Ct. 2903, 111 L.Ed.2d 309(1990) (same); Nebraska v. Iowa, 143 U.S.359, 360, 12 S.Ct. 396, 36 L.Ed. 186(1892) (same).

FN13. The Court treats the public's ease-ment as “fixed and definite,” which creates“a legal fiction that has no factual basis.”Mike Ratliff, Public Access to RecedingBeaches, 13 HOUS. L.REV. 984, 1014(1976). Only a “rolling easement will real-istically and accurately depict the actualoccurrences on the beach.” Id.

FN14. See Feinman, 717 S.W.2d at 111(finding that rolling easement shifted afterHurricane Alicia moved the vegetation linelandward causing homes to be seaward ofvegetation line and subject to removal un-der OBA); Matcha, 711 S.W.2d at 98-100(finding public easement shifts with natur-al movements of the beach); Arrington v.Tex. Gen. Land Office, 38 S.W.3d at 766(affirming summary judgment for LandOffice because once public easement is es-tablished “it is implied that the easementmoves up or back to each new vegetationline”); Arrington v. Mattox, 767 S.W.2d at958 (affirming that the “easement migrates







































































and moves ... with the natural movementsof the natural line of vegetation and theline of mean low tide”); Moody, 593S.W.2d at 379 (recognizing that the bound-ary lines shift just like navigable rivers butcan “be determined at any given point oftime”). See also Mikeska v. City of Galve-ston, 451 F.3d 376, 378 (5th Cir.2006)(recognizing public beach easement's“natural demarcation lines are not static”but rather “change with their physicalcounterparts”); Hirtz v. Texas, 974 F.2d663, 664 (5th Cir.1992) (recognizing loca-tion of public beach easement “shifts as thevegetation line shifts”).

FN15. Ratliff, supra n. 13 at 994.

FN16. Severance purchased her property in2005, and thus her land sales contract con-tained this express deed restriction. Sever-ance was also put on notice before the pur-chase on two separate occasions. In 1999,the General Land Office released a list ofhomes, including Severance's, that werelocated seaward of the vegetation line fol-lowing Tropical Storm Frances. In 2004,the property was again listed as being onthe public beach but subject to a two-yearmoratorium order.

FN17. After the Lucas decision, whichfound a taking, and Hurricane Hugo, theSouth Carolina Legislature amended theirBeach Management Act to incorporate arolling easement on any lot that movedseaward of the setback line, specifically toavoid takings claims. The easement per-mits some structures but maintains theright to implement some erosion controlmethods. National Oceanic and Atmo-spheric Administration, Erosion ControlEasements, http://coastalmanagement.noaa.gov/initiatives/shoreline_ppr_easements.html. (last visited Nov. 3, 2010).

FN18. The Court correctly declines to ap-ply the traditional avulsion rule to themean high tide boundary established inLuttes. I would also extend this to the ve-getation line. The reason avulsion does notchange title on rivers does not extend tocoastline. Generally, avulsive events createan entirely new river bed, and “just as astone pillar constitutes a boundary, not be-cause it is a stone, but because of the placein which it stands, so a river is made thelimit of nations [or states], not because it isrunning water bearing a certain geograph-ical name, but because it is water flowingin a given channel, and within given banks,which are the real international boundary.”Nebraska v. Iowa, 143 U.S. 359, 362, 12S.Ct. 396, 36 L.Ed. 186 (1892). However,the running water at issue is the Gulf ofMexico, and it does not flow in a givenchannel between banks but rather con-stantly washes against the beaches. Here,the “stone pillar” is the Gulf of Mexico,and it stands as the boundary, not becauseof its specific, fixed location, but rather be-cause it is the Gulf. Further, avulsiveevents on rivers merely cuts a new riverbed, separating identifiable land from itsoriginal tract. Here, when an avulsiveevent occurs on the beach, there is no iden-tifiable land. Rather, the previous beachbecomes entirely submerged under theGulf, and land previously above the veget-ation line is now seaward of it.

FN19. Since 1851, Galveston Island hasendured more than fifty tropical storms andat least twenty-three hurricanes. The worsthurricane of the nineteenth century,however, was on October 6, 1837, leavinga two thousand mile destruction path. TheHurricane of 1900, “The Great Storm,”still holds title as the deadliest natural dis-aster to strike the United States. It claimedthe lives of at least eight thousand and left















thirty thousand homeless. In 1983, Hur-ricane Alicia eroded fifty to two hundredfeet of Galveston's coastline.

FN20. The National Flood Insurance Pro-gram, and the Texas counterpart, the TexasWindstorm Insurance Association, helpsshield beachfront property owners from therisks of a naturally changing coastline. Ho-frichter, M., Texas's Open Beaches Act:Proposed Reforms Due to Coastal Erosion,4 ENVT'L & ENERGY L. & POL'Y J.147, 151 (2009). Also, the U.S. Tax Codeprovides for certain casualty loss deduc-tions for buildings damages from stormsalong the coast. Id. at 150 (citing I.R.C. §165).

Tex.,2010.Severance v. Patterson--- S.W.3d ----, 2010 WL 4371438 (Tex.)

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TEXAS OPEN BEACHES ACT - Texas Land Title Association...Texas Open Beaches Act 396008.1 TOBA establishes an easement in favor of the public to access public beaches by prescription