Today, the Texas Supreme Court issued opinions in Severance v. Patterson, No. 09-0387, the case before the court on certified questions from the U.S. Court of Appeals for the Fifth Circuit. The Fifth Circuit asked whether Texas recognizes a "rolling" beachfront access easement (a public easement on littoral property that moves with naturally caused changes in the vegetation line without proof of prescription, if Texas does recognize such an easement, what is its source (statute or common law), and would a landowner subject to this easement be able to obtain compensation under Texas procedures? More on the case background here.
The Texas Supreme Court had issued opinions in 2010 affirming that no such "rolling easement" existed (opinions and briefs available here), only to grant the government's motion for rehearing, apparently something you can do under Texas appellate procedure. So nearly a year ago, the Supreme Court again heard arguments ("rearguments?") (audio here, video here, live blog here).
The court today issued five opinions:
We won't detail each of these opinions in this post, but will note the majority's holding answering the Fifth Circuit's first question:
Oceanfront beaches change every day. Over time and sometimes rather suddenly, they shrink or grow, and the tide and vegetation lines may also shift. Beachfront property lines retract or extend as previously dry lands become submerged or submerged lands become dry. Accordingly, public easements that burden these properties along the sea are also dynamic. They may shrink or expand gradually with the properties they encumber. Once established, we do not require the State to re-establish easements each time boundaries move due to gradual and imperceptible changes to the coastal landscape. However, when a beachfront vegetation line is suddenly and dramatically pushed landward by acts of nature, an existing public easement on the public beach does not "roll" inland to other parts of the parcel or onto a new parcel of land. Instead, when land and the attached easement are swallowed by the Gulf of Mexico in an avulsive event, a new easement must be established by sufficient proof to encumber the newly created dry beach bordering the ocean. These public easements may gradually change size and shape as the respective Gulf-front properties they burden imperceptibly change, but they do not "roll" onto previously unencumbered private beachfront parcels or onto new portions of previously encumbered private beachfront parcels when avulsive events cause dramatic changes in the coastline.We have carefully considered the state officials’ arguments on rehearing. The State argues that the answer to the first question is "yes." In other words, the State claims that it is entitled to an easement on privately owned beachfront property without meeting the law’s requirements for establishing an easement—a dedication, prescription, or custom. Under the common law, the State’s right to submerged land, including the wet beach, is firmly established, regardless of the water’s incursion onto previously dry land. In contrast, the State has provided no indication that the common law has given the State an easement that rolls or springs onto property never previously encumbered. There are policies that favor and disfavor the right the State claims, but the right cannot be found in the law. The law allows the State to prove an easement as would anyone else.
Slip op. at 2-3 (footnote omitted).
Texas is one of those states (like Hawaii) that under common law now treats the vegetation line as the public-private boundary on beaches. (Technically, in Hawaii it isn't the veg line, but rather the "upper reaches of the high wash of the waves, as evidenced by the vegetation or debris line" -- but close enough.) The "avulsive event" that led to the Severance case was Hurricane Rita, which suddenly and dramatically pushed the vegetation line landward, placing Ms. Severance's home seaward of the new vegetation line. After a survey, the Texas General Land Office notified her that her home was now on public land, and offered her $40,000 in relocation expenses, but nothing in compensation for her home. She went to federal district court, which dismissed. The Fifth Circuit reversed, but certified the three questions above to the Texas courts, asking whether Texas law recognizes a "rolling" easement that migrates "solely according to naturally caused changes in the location of the vegetation line without proof of prescription."
Disclaimer: my Pacific Legal Foundation colleague (and fellow U. Hawaii Law School alum David Breemer represents the property owner.
