In a case of first impression, the Texas Supreme Court recently ruled in Severance v. Paterson1 that the rights of private-property owners trump the public’s right to access beaches on private property. The court held 5-3 that when an act of nature “suddenly and dramatically” pushes back the vegetation line on a beach, the public easement that state law creates on beaches does not move along with it.2 In other words, while easements may change gradually, an avulsion3 does not entitle the state to a drastic expansion of its claim over existing private property.4 This article will describe the background and decision in Severance and examine how this case fits in with coastal-property jurisprudence.
Texas’s Open Beaches Act (“OBA”) was passed in 1959 to help enforce the public’s right to use the state’s coastal beaches.5 The OBA applies to state-owned beaches as well as to those where a public easement has been established over privately owned land.6 Hurricane Rita, which hit the Texas coast in September 2005, washed away much of the public and private property burdened by these easements, and moved the line of vegetation landward over the property lines of owners whose Galveston Island lands were previously unencumbered.7 The state sought to enforce the OBA easements against them and condemn homes that were now located on the beach.8 The property owners sued in federal district court,9 which held that the public easement automatically “rolls” from one parcel of land to the next according to natural changes in topography.10 The case was appealed to the Fifth Circuit, which by certification asked the Texas Supreme Court in October 2011 to resolve whether easements under the OBA “rolled” with such sudden changes to the landscape.11
II. The Decision
The case was first brought before the federal district court, then appealed to the U.S Court of Appeals for the Fifth Circuit, which asked the Texas Supreme Court to determine whether Texas recognizes a rolling easement on beachfront real property.12 Emphasizing the “fundamental, natural, and inherent” nature of rights associated with land ownership,13 the Texas Supreme Court ruled that state law did not automatically transform private beaches into public ones after such a storm event. The right to exclude others from one’s property is one of the most important rights of property owners, and the state may only take it away through eminent domain with just compensation, an appropriate use of state police power, legally established easements, or other pre-existing limitations on rights of real-property owners that have existed “since time immemorial.”14
The court found that none of these were present.15 It rejected the state’s argument that when there is avulsion old easements “roll” with the vegetation line onto adjacent property where no easement had ever been established.16 The court quoted Justice Holmes: “[A] strong public desire to improve the public condition is not enough to warrant achieving the desire by a shorter cut than the constitutional way of paying for the change.”17 “[I]t does not follow,” the court added, “that the public interest in the use of privately owned dry beach is greater than a private property owner’s right to exclude others from her land when no easement exists on that land.”18
The court held that although real-property owners were warned that the state may use the OBA to try to enforce an easement on their property as the line of vegetation fluctuated, this did not displace the owners’ right to exclude, which was one of the rights the owners purchased with the land.19 This point was reinforced by the Texas Legislature’s 1969 Interim Beach Study Committee report, which stated that “[a]n easement is a property interest; the State can no more impress private property with an easement without compensating the owner of the property than it can build a highway across such land without paying the owner.”20
The court explained that historically the State of Texas, and before that the Republic of Texas and Mexico, all recognized the beachfront properties on Galveston Island to be without limitation.21 No subsequent action had altered this longstanding recognition of the owners’ rights, proving that the “rolling easement” theory had not existed “since time immemorial.”22 And without such a pre-existing restriction on private property rights, the state would have to pay for property if it wanted to take it for public use.
The Severance decision was greeted by loud complaints by government and environmental groups as an example of pro-business activism.23 These critics pointed out that the decision differed sharply from similar cases in other states.24 New Hampshire, New Jersey, Idaho, Hawaii, and Oregon state courts have all enforced public easements across privately owned beach property.25 But the Severance majority pointed out that “[t]hese jurisdictions have long-standing restrictions inherent in titles to beach properties or historic customs that impress privately owned beach properties with public rights,”26 which are not present in Texas.
The local effect of this ruling is that property owners must explicitly grant public-access easements before the state may operate publicly funded beach clean-up and renourishment programs on Galveston beaches.27 While many homeowners’ associations in the Galveston area have willingly granted easements in exchange for government aid in maintaining beaches, not all landowners are willing to trade away their right to exclude.28 In fact, there is currently a debate about whether property owners will use this decision to justify the construction of concrete protective bulkheads to prevent erosion.29 These structures have previously been disallowed by the Texas General Land Office because they contribute to erosion on neighboring property, but given the decision in Severance, the GLO may have to allow their construction.30
The biggest question that remains undecided is where the line should be drawn between “gradual” and “dramatic” changes in the coast line: when does erosion that creates a rolling easement become protected avulsion?31 Only future litigation can resolve this complicated question.
* Brittany La Couture is a 3L at Georgetown, where she is a member of the Federalist Society.
** Tim Sandefur is a Senior Staff Attorney at the Pacific Legal Foundation.
1 No. 90-0381, 2012 WL 1059241(Tex. Mar. 30, 2012).
2 Id. at *3.
3 “Avulsion . . . is the sudden and perceptible change in land and is said not to divest an owner of title.” Id. at *24.
4 Id. at *3.
5 Id. at *7.
7 Id. at *8-9.
8 The Texas legislature has defined public and private beaches along the Gulf of Mexico as land between the mean low-tide line and the line of vegetation. Id. at *12.
10 Severance v. Patterson, 485 F. Supp. 2d 793, 802-04 (S.D. Tex. 2007).
11 Severance, 2012 WL 1059241, at *10.
13 Id. at *5.
14 Id. at *6. Texas courts have interpreted “time immemorial” as referring to the time when Spanish or Mexican civil law governed. Id. at *41-42.
17 Id. at *34.
18 Id. at *35.
20 Id. at *22.
21 Id. at *16.
23 Nick Jimenez, Render Ballot Justice to These Five Justices, Caller, Apr. 22 2012, http://www.caller.com/news/2012/apr/22/render-ballot-justice-to-these-five-justices/.
25 Id. at *35-36.
26 Id. at *36.
27 Heber Taylor, Clean Beaches and Public Access, Daily News, May 14, 2012, http://galvestondailynews.com/story/314482.
29 Harvey Rice, Galveston Beach Homeowners Prepare to Exert Rights: Battle May Be Looming After High Court Ruling, Chron, May 9, 2012, http://www.chron.com/news/houston-texas/article/Galveston-beach-homeowners-prepare-to-exert-rights-3547164.php.
31 Matt Festa, Decision on Open Beaches Act/Rolling Easement Case (Severance v. Patterson), Land Use Prof Blog, Jul. 18 2012, http://lawprofessors.typepad.com/land_use/2010/11/decision-on-open-beaches-act-rolling-easement-case-severance-v-patterson.html.