Matcha v. Mattox on Behalf of People

• Decision Date: 21 May 1986
• Docket Number: No. 14384,14384
• Citation: 711 S.W.2d 95
• Parties: Robert L. MATCHA, et ux., Appellants, v. Honorable Jim MATTOX, Attorney General of Texas, on Behalf of the PEOPLE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 95

711 S.W.2d 95

Robert L. MATCHA, et ux., Appellants, v. Honorable Jim MATTOX, Attorney General of Texas, on Behalf of the PEOPLE of Texas, Appellee.

No. 14384.

Court of Appeals of Texas Austin.

May 21, 1986.

Rehearing Denied June 18, 1986.

Karen A. Lerner, Houston, for appellants.

Jim Mattox, Atty. Gen., Ken Cross, Asst. Atty. Gen., Austin, for appellee.

Before SHANNON, C.J., and GAMMAGE and CARROLL, JJ.

SHANNON, Chief Justice.

Robert L. Matcha and Anne Morgan Matcha, husband and wife, seek to set aside a judgment of the district court of Travis County in an "open beach" suit. See Tex.Nat.Res.Code Ann. § 61.001 et seq. (1978 & Supp.1986). After a jury trial the district court directed a verdict and rendered judgment which, in general, prohibits the Matchas from interfering with the public's right of free access to and over the beach. This Court will affirm the judgment.

The attorney general pleaded that the Matchas own a lot in the Sea Isle subdivision on Galveston Island. Before August 18, 1983, a frame beach house stood on that lot. On that day a violent hurricane nearly destroyed the house--only portions of the foundation, pilings, floor, and walls of the structure remained. After the storm, the remains of the dwelling were located entirely seaward of the natural line of vegetation on the beach.

After the Matchas commenced reconstruction of the beach house, the attorney general posted notice on the structure that its repair might be in violation of law. Nonetheless, the Matchas continued the reconstruction and continued hauling in soil and setting out plants around the house, all such plants being seaward of the natural line of vegetation. The attorney general then obtained restraining and temporary injunctive orders from the district court prohibiting the continuation of repairs.

The attorney general pleaded that the public had acquired rights in the beach area where the Matchas' house, hauled-in-soil and planted vegetation were situated. More specifically, the attorney general asserted that in the beach area between the line of mean low tide and the line of natural vegetation, the public had acquired a right of use or an easement by reason of prescription, dedication, or estoppel, or had retained a right of use and an easement because of continuous right in the public since time immemorial as recognized by law or custom. The attorney general claimed, accordingly, that whatever right the Matchas had to the area was subordinate to the right of lawful use of and access to the area by the general public.

The attorney general pleaded factually that the line of mean low tide and the vegetation line along the beaches of Galveston Island are affected by numerous natural and artificial factors including climate, storm frequency and intensity, local and eustatic sea level conditions, sediment budget, and human activities. Along certain portions of the beach, these effects have been nominal and, as a result, the public beach area has been relatively stationary over the years. However, along other parts of the beach, these effects have been dramatic and, as a result, the public beach area has shifted laterally over relatively short periods of time.

The attorney general pleaded, among other things, that the Matchas' reconstruction of their house and their placement of earth and plants about the structure obstructed the common law right of the public to use the beach.

The underlying facts are undisputed. The Matchas own lot sixty in the Sea Isle subdivision on the West Beach of Galveston Island. In 1982, they built a beach house on the lot which was located immediately landward of the natural vegetation line as it existed in the summer of 1982. The powerful hurricane of August 1983 eroded the natural vegetation line landward about one hundred twenty-five to one hundred fifty feet from its prior position. The natural vegetation line was then landward of the Matchas' beach house. After the 1983 hurricane and before trial, the Matchas filled in their lot with earth and planted grass which they tended and cultivated.

In its judgment the district court concluded:

(1) that the public has acquired through prescription, dedication, and custom (a right retained by virtue of continuous right in the public since time immemorial) the free and unrestricted right of access to and use and easement over the beach in the vicinity of the Matchas' property, said beach being that area defined at common law and in Tex.Nat.Res. Code Ann. §§ 61.001-61.024 as the area bordering on the Gulf of Mexico between the line of mean low tide and the natural line of vegetation, this latter boundary being the extreme seaward boundary of natural vegetation which spreads continuously inland;

(2) that such public right of access, use, and easement follows the beach as the beach moves landward and seaward with the natural movements of the line of mean low tide and the natural line of vegetation;

(3) that the natural line of vegetation in the vicinity of the Matchas' property has most recently moved landward of the Matchas' property under the influence of Hurricane Alicia [the August 1983 hurricane] so that the Matchas' land and improvements thereon currently occupy a portion of the beach, as defined at common law and in Tex.Nat.Res. Code Ann. §§ 61.001-61.024;

(4) that the Matchas attempted to reconstruct a beach house and to place sand piles and plantings of vegetation seaward of the natural line of vegetation, and accordingly on the beach as defined at common law and in Tex.Nat.Res.Code Ann. §§ 61.001-61.024; and

(5) that such beach house, sand piles, and vegetation plantings constitute obstructions, barriers, restraints, and interferences with the free and unrestricted public right of access to and use of the beach where the Matchas' property is situated.

The judgment declared that the Matchas' property is servient to the public's right of access, use and easement because of the location of the Matchas' land on the public beach. The district court determined that the public had acquired such easement and right of access and use through (1) prescription; (2) dedication; and (3) custom (a right retained by virtue of continuous right in the public since time immemorial). The public's right of access, use and easement to the beach area follows the beach as it moves with the natural movements and fluctuations of the line of mean low tide and the natural line of vegetation.

The judgment ordered the Matchas to remove the beach house, sand piles, plantings, and any other obstructions or barrier to the public's use of the beach area. The district court enjoined the Matchas from engaging in any activity, including the construction of any structures and the placement or nourishment of plants, which restrains or interferes with the right of the public, individually or collectively, to free and unrestricted access to and use of the beach area. Finally, the judgment declared that it was a judgment in rem against the land which it affects.

In lengthy briefs, the Matchas attack the district court's judgment and conclusions by twenty-six points of error. By numerous points, the Matchas claim that the district court erred in its preliminary conclusion that the public had acquired a free and unrestricted easement and right of access to and use of the beach in the vicinity of the Matchas' property. This Court will overrule the points of error and will affirm the judgment upon the basis that the public acquired a right of use or an easement in the vicinity of the Matchas' property by custom.

Custom is an ancient common law doctrine. "If A hath the ripa, or bank, of the port, the king may not grant a liberty to unlade upon the bank, or ripa, without his consent, unless custom had made the liberty thereof free to all, as in many places it is...." City of Galveston v. Menard, 23 Tex. 349, 408 (1859) (Justice Roberts quoting Lord Hale).

Mercer v. Denne, 2 Ch. 538 (1905), involved the custom of fishermen in the parish of Wolmer of drying their fishing nets on the "beach ground." The suit arose when the owner of the beach ground attempted to prevent the fishermen from continuing this longstanding practice. Over the landowner's protestations that the custom made his land useless to him, the court held that the fishermen's net-drying practices had continued since "time immemorial," and had become a legal right which the landowner could not interrupt. The court recognized that, although the beach area had migrated somewhat over the years, "the custom began at the boundary between beach and sea." Hence, the court concluded, "... the area for drying would always be adjacent to the boundary for the time being between the beach and the sea." 2 Chancery Division at 579.

Courts in several states have adopted the custom doctrine for determining public rights in beaches. In State ex rel. Thornton v. Hay, 254 Or. 584, 462 P.2d 671 (1969), the Oregon Supreme Court first discussed dedication and prescription, and concluded that either of those doctrines would justify finding a public right to use privately-owned drybeach areas along the Oregon coast. "We believe, however, that there is a better legal basis for affirming the decree. The most cogent basis for the decision in this case is the English doctrine of custom." Id. at 676. Citing Blackstone, the court then enumerated the elements required to find that a custom exists: the public use must be ancient, peaceable, certain, obligatory, exercised without interruption, and not repugnant with other custom or law. Id. at 677. Since the public had freely used the dry-sand area along the Oregon coast for as long as there had been an institutionalized land tenure system in the state, the court concluded that the requirements had been met and the public custom had become a legal right. Id. See also City of Daytona Beach v. Tona-Rama Inc., 294 So.2d 73 (Fla.1974); State ex rel. Haman v. Fox, 100...