Richard D. Hayes

Real Property disputes are some of the most frequent cases we take on at our firm. You can view previous blog posts regarding other cases here.

Along Texas beaches, unique issues of ownership due to the natural erosion and growth of beaches frequently comes up. The Texas Open Beaches Act ensures that the public has access to the beaches along the Gulf of Mexico within the State-owned easement between the mean low tide line to the vegetation line along the beach. Naturally, these lines shift due to erosion, sediment deposition, and movement of vegetation and these gradual changes can cause the easement to shift slowly over time. This is called a “rolling easement.”

Upon sudden, large storm events such as hurricanes, these lines can shift dramatically. So dramatically in fact, that in some instances, homes and other valuable improvements that were once outside the easement now find themselves squarely impeding the public’s right to use the beach. As a consequence, a beachfront landowner faces not only the threat of a hurricane but the risk that their improvements may come to violate the act.

In Severance v. Patterson, this issue was confronted head on. Ms. Severance owned a home located on Galveston Island’s West Beach. After Hurricane Rita moved the vegetation line, her home was located seaward of this line and within the public easement. Severance sued, claiming that the situation amounted to a taking without adequate compensation in violation of the US and Texas Constitutions.

The Supreme Court decided that the Texas Open Beaches Act rolling easement did not automatically transform private beaches into public ones after such a storm event. Instead, cases where Hurricanes or other sudden alteration events move boundaries are to be decided under traditional eminent domain law with just compensation, an appropriate use of state police power, legally established easements or other pre-existing limitations on rights of real-property owners.

The court found none of these were present and rejected the state’s argument that when there is an avulsion old easements ‘roll’ with the vegetation line onto adjacent property where no easement had ever been established. The court held that although real-property owners were warned that the state may use the Open Beaches Act 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.

The court explained that historically the State of Texas, and before that the republic of Texas and Mexico, all recognized beachfront properties on Galveston Island to be without limitation. And since there has not been any action to that altered the recognition of owners rights, the state would have to pay for the property if it wanted to take it for public use. This result ensures public access to beaches inherently and gradually shifts over time, protecting the substantial value of development and improvements belonging to individuals along the beach.