Feinman v. State

• Decision Date: 17 July 1986
• Docket Number: No. 01-85-0528-CV,01-85-0528-CV
• Citation: 717 S.W.2d 106
• Parties: Minnie B. FEINMAN, et al., Appellants, v. The STATE of Texas, Appellee. (1st Dist.)
• Court: Texas Court of Appeals

Page 106

717 S.W.2d 106

Minnie B. FEINMAN, et al., Appellants, v. The STATE of Texas, Appellee.

No. 01-85-0528-CV.

Court of Appeals of Texas,

Houston (1st Dist.).

July 17, 1986.

Rehearing Denied Sept. 25, 1986.

Thomas W. McQuage, Dibrell & Greer, Galveston, for appellants.

Jim Mattox, Atty. Gen., Mary F. Keller, Exec. Asst. Atty. Gen., for Litigation, Nancy N. Lynch, Chief, Environmental Protection Div., Ken Cross, Linda A. Secord, Asst. Attys. Gen., Austin, for appellee.

Jean F. Powers, for Legal Foundation of American, Houston, Patricia Gray, for Peter A. Bowman, et al., Galveston, amicus curiae.

Before SAM BASS and DUGGAN, JJ., and KEITH, visiting retired J., also sitting.

OPINION

SAM BASS, Justice.

This appeal concerns a strip of beach running from the Galveston seawall to San Luis Pass ("West Beach") and the effect that the receding beach line has on the State's easement along West Beach.

Appellants each own property on West Beach that was damaged when Hurricane Alicia ("Alicia") battered the Texas Gulf Coast in August of 1983. Not long after Alicia, the Attorney General notified some of the Appellants that they were in violation of the Open Beaches Act ¹ ("the Act") because all or a portion of their properties were seaward of the post-Alicia vegetation line. ² In response, appellants brought a declaratory judgment suit, requesting the trial court to enter a judgment interpreting the Act in their favor. Appellants claimed that the Attorney General was preventing them from building, rebuilding, or repairing structures that were seaward of the post-Alicia line, and prayed: (1) that the trial court declare that the post-Alicia vegetation line was not the vegetation line contemplated by the Act as the landward boundary of the public's easement; (2) that the trial court locate the vegetation line at the pre-Alicia vegetation line; and, (3) that their ownership not be altered by the changes wrought by Alicia. Appellants also argued that the State was estopped by principles of res judicata from litigating on the State's theory of a rolling easement because that issue had been litigated and decided against the State in 1975.

The State counterclaimed, requesting that the trial court declare that the public has an easement over all land located seaward of the natural line of vegetation, and that this easement shifts with the movement of the natural line of vegetation and the mean low tide line. Finally, the State requested a declaration that it was properly construing the Act.

The case was tried before the 10th Judicial District Court of Galveston County. The court concluded that: (1) the public has acquired an easement up to the vegetation line by showing prescriptive use, implied dedication, and customary use; (2) this easement is a "rolling easement" that moves as the natural line of vegetation moves; and (3) such an easement is consistent with, and implicit in, the Act. The court also found that Hurricane Alicia caused the natural line of vegetation to move in a landward direction and that the State was not barred by principles of res judicata from bringing the lawsuit against appellants.

Appellants raise 11 points of error that, for convenience, are divided into six areas of discussion. First, appellants claim that the Attorney General is estopped from litigating the rolling easement theory because that theory was litigated and determined against the State in John L. Hill, Attorney General v. West End Encroachment, et al., Cause No. 108,156, in the 122nd District Court, Galveston County, Texas. Second, appellants urge that a rolling easement is foreign to, and inconsistent with, the statutory scheme of the Act. Third, appellants claim that the public's easement could not shift to the post-Alicia vegetation line because there is no evidence of the essential elements of prescriptive use, implied dedication, and customary use. Fourth, appellants contend that the court erred in concluding that the natural line of vegetation moved in a landward direction after Alicia because the vegetation line contemplated by the Act is a stable line that Alicia obliterated. Fifth, appellants claim that the trial court erred in concluding that the movement of the vegetation line was the result of erosion rather than avulsion. Finally, appellants argue that the rolling easement theory is unconstitutional, and deprives Appellants of due process of law, due course of law, and equal protection under the 14th Amendment to the United States Constitution.

Appellants have not questioned the factual sufficiency of the evidence to support the trial court's conclusions of law and findings of fact. They claim that there is no evidence to support them or, in the alternative, that the trial court erred as a matter of law, e.g., in its interpretation of the Act. We are required to review "no evidence" points of error in a light most favorable to the trial court, looking only to the facts supporting the trial court's judgment. Moody v. White, 593 S.W.2d 372, 377 (Tex.Civ.App.--Corpus Christi 1979, no writ); Seaway Co. v. Attorney General, 375 S.W.2d 923, 937 (Tex.Civ.App.--Houston [1st Dist.] 1964, writ ref'd n.r.e.).

I. ESTOPPEL BY RES JUDICATA

In their first point of error, appellants argue that the State was estopped from claiming a "rolling easement" because that issue was decided against the State in John L. Hill, Attorney General v. West End Encroachment, et al., (hereinafter referred to as West End ). The West End case involved the location of the public's easement on the beaches of Galveston beginning west of the Seawall and extending to San Luis Pass. Appellants allege that the State's pleadings contained a request that its relief "apply to such area of the West Beach wherever the line of vegetation may be at anytime in the future." According to appellants, this language injected the rolling easement issue into the West End suit. Appellants also allege that the West End judgments show that the trial court found against the State on the rolling easement issue, and that the principles of res judicata prevent the State from relitigating the issue.

Although appellants allege that the rolling easement issue was pleaded and litigated by the State, we find no evidence in the record to support this. Only the judgments from the West End case were introduced into evidence, and the relevant ones contain no language indicating whether or not the issue was litigated. The record contains no pleadings from that suit. The burden is on Appellants to prove that the issue was litigated. Puga v. Donna Fruit Co., 634 S.W.2d 677, 680 (Tex.1982). They did not produce the evidence necessary to prove this. Appellant's first point of error is overruled.

II. THE ROLLING EASEMENT

The second area of contention concerns whether the public's easement to the vegetation line is a rolling easement and whether such an easement was contemplated in the Open Beaches Act. The State requested the trial court to find that the State has established an easement to the vegetation line along West Beach and that this easement shifts with the movement of the natural line of vegetation and the mean low tide line. Appellants, on the other hand, claim that a rolling easement is contrary to the Act because it virtually gives the public an easement to the vegetation line, whereas the Act creates only a rebuttable presumption that the public has an easement to a specific vegetation line. According to appellants, then, a rolling easement gives the public greater rights in the beach than does the Act. The question confronting us is whether the Act requires the State to re-establish its easement each time the line of vegetation moves, or whether the Act allows the public's easement to move with the line of vegetation once the public has established an easement to a particular line of vegetation. In our discussion we will assume that the public has acquired an easement to some pre-Alicia line of vegetation and discuss only whether an easement, once established, can move with the vegetation line.

In reviewing a statute to discern its intent, a court must be mindful of the following presumptions:

(1) a just and reasonable result is intended;

(2) a result feasible of execution is intended; and

(3) public interest is favored over any private interest.

See Tex.Govt.Code Ann. sec. 311.021 (Vernon Supp.1986).

Whether or not the statute is ambiguous on its face, a court may also consider the following:

(1) the object sought to be attained;

(2) the circumstances under which the statute was enacted;

(3) the legislative history;

(4) the common law, including laws on the same or similar subjects; and

(5) the consequences of a particular construction.

See Tex.Govt.Code Ann. sec. 311.023 (Vernon Supp.1986).

The Act was enacted in 1959 to declare the State's policy that the public should have unrestricted access to the state-owned beaches, or to any larger area up to the vegetation line to which the State had acquired an easement, and to ensure that this right not be adversely affected in any way. See sec. 61.011 (Vernon 1978). The public beach is defined under the Act as any beach area "extending inland from the line of mean low tide to the line of vegetation ... to which the public has acquired an easement ... 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." Sec. 61.001(2) (Vernon 1978). A littoral owner is an owner of land adjacent to the shore or adjacent to a waterway. Sec. 61.001(4) (Vernon 1978).

Section 61.013 prohibits the construction of barriers that will interfere with the right of the public to use any public beach, and section 61.014 prohibits any signs or warnings stating that the public does not have a right of access to a public beach. Each of these sections contain their own definition of "public beach." Section 61.013 defines public...