Seaway Co. v. Attorney General
| Decision Date | 30 January 1964 |
| Docket Number | No. 13921,13921 |
| Citation | 375 S.W.2d 923 |
| Parties | SEAWAY COMPANY, Inc., Appellant, v. ATTORNEY GENERAL of the State of Texas et al., Appellees. |
| Court | Texas Court of Appeals |
Louise C. Rowen, Herminie Hanson, Galveston, De Lange, Hudspeth & Pitman, Albert J. De Lange, C. M. Hudspeth, Eugene J. Pitman, M. Marvin Katz, Houston, for appellant.
Will Wilson, Atty. Gen., Texas (when suit was tried and argued on appeal--Waggoner Carr, present Atty. Gen.), Ben M. Harrison, J. Arthur Sandlin, Joe A. Osborn, Asst. Attys. Gen., Austin, Jules Damiani, Jr., Criminal Dist. Atty. of Galveston County, Galveston, for appellees.
This case involves the question as to whether the people of Texas have an easement on, over, along and across a portion of the beach along the Gulf of Mexico on Galveston Island giving them access to the State-owned seashore and waters of the Gulf. The easement asserted in appellees' petition, found by the jury's verdict, and established by the court's judgment based on the jury verdict, encompassed an easement in the public to use the area of the land adjoining the waters of the Gulf of Mexico from the line of mean low tide to the seaward side of the line of vegetation for travel and camping and to make use of the area so the members of the public could fully pursue their rights to swim, fish and boat in and on the Gulf waters.
The 56th Legislature of Texas at its Second Called Session of 1959, enacted what is popularly known as the 'Open Beaches Bill.' Acts 56th Legislature of Texas 1959, 2nd Called Session, Chapter 19, p. 108. This Act is carried in Vernon's Annotated Civil Statutes as Article 5415d and will hereafter be referred to in this opinion as Article 5415d. This Article, among other things, declared it to be the public policy of this State that the people of the State should have the free and unrestricted right of ingress and egress to and from the State-owned beaches bordering on the seaward shore of the Gulf of Mexico or such larger area extending from the line of mean low tide to the line of vegetation in the event the public has acquired a right of use or easement to or over such area by prescription, dedication, or has retained a right by virtue of continued right in the public. The Article made it an offense against such public policy for anyone to obstruct the way of ingress and egress or the use of the beaches. The Attorney General of Texas, a County, District, or Criminal District Attorney were given authority to bring suits on behalf of the people of Texas, and it was made their duty to do so, to require removal of any obstructions that may interfere with such right of ingress and egress.
While the above is not all of the Act, it is all that need be noticed at this time.
Pursuant to the authority conferred and the duty enjoined the then Attorney General of Texas, the Honorable Will Wilson, and the Criminal District Attorney of Galveston County, the Honorable Jules Damiani, filed suit against appellant, asserting it had owned, controlled and was maintaining barriers from the line of vegetation seaward beyond the line of mean high tide at three defined positions, two being on projections of specified lot lines of the West Beach Addition and one being a projection of the east line of Sea Island Addition. Both additions are in Section 12 of the Jones & Hall Grant in Galveston County. Prayer was that appellant be required to remove the barriers and be enjoined from erecting others seaward of the seaward side of the vegetation line which would interfere with the use by the public of the area seaward of the line of vegetation.
The petition asserted that appellant was claiming ownership of the surface of the area where the barriers were located, but that whatever rights it had were subordinate and subject to the right of use of the people as a means of access to and the full use and enjoyment of the sovereignowned shore and waters of the Gulf of Mexico for swimming, fishing, boating, camping and as a public way for vehicular and pedestrian travel between the City of Galveston and the west end of Galveston Island. The bases of the assertion of these superior rights in the people are these:
1. Before, at and continuously since the Jones & Hall Grant on November 28, 1940, the area between the vegetation line and line of mean low tide has been used by the people without overt challenge, question or interruption until the barriers complained of had been erected and such rights thereby became a part of our honored custom and common law.
2. At and before the Grant such area was dedicated as a public way, and was so designated on the official maps of Texas and the grant to appellant's predecessors in title was necessarily subordinate to such rights in the people.
3. For 25 years next preceding the erection of the barriers public funds had been expended by Galveston County in maintaining the area free of debris and other obstructions, which fact was known, or, in the exercise of reasonable diligence, could have been known, to appellant and its predecessors in title, and they have knowingly accepted the benefits of such expenditures and are estopped from denying such rights in the public.
4. The people by adverse use of the area for more than 10 years next preceding the erection of the barriers have established an easement by prescription.
5. There has been express dedication of the beach area seaward of West Beach Addition.
6. Subsequent to the making of the Jones & Hall Grant the long use of such area by the public and the long acquiescence by appellant and its predecessors in title reflect that the area has been dedicated to public use.
The barriers were, therefore, alleged to be public nuisances and against public policy.
The effect of appellees' petition is to assert an easement in the public covering the area between mean high tide and the seaward side of the vegetation line based on dedication, prescription and continuous right in the public.
The appellant's answer contained, in addition to pleas in abatement and exceptions not here necessary to notice, a general denial, special denials, and affirmative claims that title to the land on which the barriers were located had passed out of the State over 100 years ago and the barriers were on land belonging to it, and it also pled the 3, 5, 10 and 25 year statutes of limitation.
The court's charge defined the 'beach' as the 'area extending from the line of mean low tide to the line of vegetation bordering on the Gulf of Mexico.' It defined the 'Line of vegetation' as 'the extreme seaward boundary of natural vegetation which spreads continuously inland.' This is essentially the definition given in Article 5415d.
The jury, in response to special issues, found as follows:
1. The beach along Section 12 of the Jones & Hall Grant since a time before November 28, 1840, the date of the grant, had been continuously, as a matter of common practice, used by the public, individually and collectively, as a public way and for use in connection with fishing, swimming and camping.
2. That subsequent to the date of the grant the beach along the west one-half of Section 12 of the Grant had been dedicated for use by the public by appellant's predecessors in title.
3. That at and before the time of the Grant the Republic of Texas had dedicated such beach for use by the public.
4. That the public had exercised peaceable, adverse and continuous use of the beach for a consecutive 10 year period during a period from November 28, 1840 to 1947 for swimming, fishing and camping.
5. That the public had exercised peaceable, adverse and continuous use of the beach for a consecutive 10 year period during the period from November 28, 1840 to the year 1947 as a public way for pedestrian and vehicular travel.
6. That the public had exercised peaceable, adverse and continuous use for more than 10 years next preceding the erection of the barriers for swimming, fishing and camping.
7. That the public had exercised peaceable, adverse and continuous use for more than 10 years next preceding the construction of the barriers as a public way for pedestrian and vehicular travel.
8. That for more than 25 years next preceding the erection of the barriers public funds had been expended by Galveston County with the knowledge and acquiescence of appellant's predecessors in title in maintaining the beach free of debris and other obstructions.
9. The beach had remained in substantially the same geographical position since the time of the Jones & Hall Grant.
10. That the uses by the public were not permissive only.
11. That the mean high water line has not advanced landward since July 31, 1931.
12. That since November 28, 1840 there has been no landward advance of the mean high water line in the area used as a public way.
13. There has been no net erosion along the shore of the Gulf of Mexico.
14. There has been no advance landward of the mean high water line in the area used for fishing, swimming and camping.
15. There has been no landward advance of the mean high water line since dedication by appellant's predecessors in title.
16. There has been no net erosion since dedication by appellant's predecessors in title.
17. There has been no net erosion since dedication by the Republic of Texas.
The jury also found the barriers maintained by appellant interfered with use by the public of the area from mean low tide to the vegetation line.
It should be noted that this particular suit does not involve the whole of what is called 'West Beach' from the City of Galveston west to the western end of Galveston Island. It involves specifically only the area seaward of the seaward side of the vegetation line along Sea Isle and West Beach Additions belonging to appellant.
In popular understanding the beach lying east of the seawall is called 'East Beach' and that lying west is called 'West Beach.' Wh...
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