Severance v. Patterson

Decision Date30 March 2012
Docket NumberNo. 09–0387.,09–0387.
Citation370 S.W.3d 705,55 Tex. Sup. Ct. J. 501
PartiesCarol SEVERANCE, Petitioner, v. Jerry PATTERSON, Commissioner of the Texas General Land Office; Greg Abbott, Attorney General for the State of Texas; and Kurt Sistrunk, District Attorney for the County of Galveston, Texas, Respondents.
CourtTexas Supreme Court


Validity Called into Doubt

V.T.C.A., Natural Resources Code § 61.020(a)(1, 2)J. David Breemer, Martha Hardwick Hofmeister, Shackelford, Melton & McKinley, L.L.P., Dallas, for Petitioner.

Attorney General Greg W. Abbott, Attorney General of Texas, Kent C. Sullivan, Jeffrey L. Rose, Austin, Rafael Edward Cruz, Houston, Karen Watson Kornell, Daniel L. Geyser, Ken Cross, Gibson Dunn & Crutcher LLP, Dallas, Brian E. Berwick, Office of the Attorney General, Austin, Clarence Andrew Weber, Kelly Hart & Hallman LLP, David S. Morales, Office of the Attorney General, Austin, James C. Ho, Gibson Dunn & Crutcher LLP, Dallas, Daniel T. Hodge, First Assistant Attorney General, William J. Bill Cobb III, David C. Mattax, Director of Defense Litigation, Jonathan F. Mitchell, Solicitor General, Office of the Attorney General, Austin, Arthur Cleveland D'Andrea, Assistant Solicitor General, for Respondents.

Justice WAINWRIGHT delivered the opinion of the Court, in which Justice HECHT, Justice GREEN, Justice JOHNSON and Justice WILLETT joined.

After issuing an opinion in this certified question proceeding, we granted respondents' motion for rehearing and heard reargument of the case. Petitioner sold the real property at issue and we abated our proceeding to allow the certifying court, the United States Court of Appeals for the Fifth Circuit, to consider respondents' motion to dismiss the case as moot. Severance v. Patterson, 345 S.W.3d 49 (Tex.2011). The Fifth Circuit denied the motion by order dated September 28, 2011, and we reinstated our rehearing of the certified questions. We withdraw our opinion of November 5, 2010, and substitute the following in its place.1

Pursuant to article V, section 3–c of the Texas Constitution and Texas Rule of Appellate Procedure 58.1, we accepted the petition from the United States Court of Appeals for the Fifth Circuit to answer the following certified questions:

1. Does Texas recognize a “rolling” public beachfront access easement, i.e., an easement in favor of the public that allows access to and use of the beaches on the Gulf of Mexico, the boundary of which easement migrates solely according to naturally caused changes in the location of the vegetation line, without proof of prescription, dedication or customary rights in the property so occupied?

2. If Texas recognizes such an easement, is it derived from common law doctrines or from a construction of the [Open Beaches Act]?

3. To what extent, if any, would a landowner be entitled to receive compensation (other than the amount already offered for removal of the houses) under Texas's law or Constitution for the limitations on use of her property effected by the landward migration of a rolling easement onto property on which no public easement has been found by dedication, prescription, or custom?

Severance v. Patterson, 566 F.3d 490, 503–04 (5th Cir.2009), certified questions accepted, 52 Tex.Sup.Ct.J. 741 (May 15, 2009). The central issue in this case is one of first impression for this Court: whether private beachfront properties on Galveston Island's West Beach are impressed with a right of public use under Texas law without proof of an easement.

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.2

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.

I. Introduction

As we acknowledge continuous and natural physical changes in the West Galveston shoreline, we must also recognize ages-old private property rights that are protected by law. Private property ownership pre-existed the Republic of Texas and the constitutions of both the United States and Texas.3See Eggemeyer v. Eggemeyer, 554 S.W.2d 137, 140 (Tex.1977) (citing Pa. Coal Co. v. Mahon, 260 U.S. 393, 43 S.Ct. 158, 67 L.Ed. 322 (1922)); In re Knott, 118 S.W.3d 899, 902 (Tex.App.-Texarkana 2003, no pet.). Both constitutions protect these rights in private property as essential and fundamental rights of the individual in a free society.

Private property rights have been described “as fundamental, natural, inherent, inalienable, not derived from the legislature and as pre-existing even constitutions.” Eggemeyer, 554 S.W.2d at 140.4 These constitutional protections underlie our analysis in this proceeding. The question to the Court is to define the scope of the property rights at issue.

Generally, an owner of realty has the right to exclude all others from use of the property, one of the “most essential sticks in the bundle of rights that are commonly characterized as property.” Dolan v. City of Tigard, 512 U.S. 374, 384, 393, 114 S.Ct. 2309, 129 L.Ed.2d 304 (1994); Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 435–36, 102 S.Ct. 3164, 73 L.Ed.2d 868 (1982) (characterizing the right to exclude as “one of the most treasured strands in an owner's bundle of property rights” and observing that “an owner suffers a special kind of injury when a stranger directly invades and occupies the owner's property”); U.S. v. General Motors Corp., 323 U.S. 373, 378, 65 S.Ct. 357, 89 L.Ed. 311 (1945) (“property” denotes the group of rights “to possess, use and dispose of it”); Town of Flower Mound v. Stafford Estates Ltd. P'ship, 135 S.W.3d 620, 634 (Tex.2004); Marcus Cable Assoc., L.P. v. Krohn, 90 S.W.3d 697, 700 (Tex.2002). Limitations on property rights may be by consent of the owner, state condemnation with payment of just compensation, appropriate government action under its police power (such as addressing nuisances), sufficient proof of use by persons other than the owner that creates an estoppel-based right to continuing use (easements) or pre-existing limitations in the rights of real property owners that have existed “since time immemorial,” in the words of the Texas Open Beaches Act (OBA).5Tex. Nat. Res.Code §§ 61.001(8). The State of Texas takes the position that owners of private property adjacent to the beach in West Galveston Island have never had the right to exclude the public from their property in the dry beach. Because there is no such limitation established in the property owner's deed to the property at issue, or agreed to by the owner, and the State has not attempted to prove an easement on the property, this legal position raises the question of whether limitations on real property rights on the western portion of Galveston Island existed since time immemorial, as required by the OBA.

Legal encumbrances or reservations on private property rights on the West Beach of Galveston Island dating from original land grants during the Republic of Texas or at the inception of the State of Texas could provide a basis for recognizing public easements on privately owned portions of these beaches or rolling public easements. Prior to 1836, Mexican law precluded colonization of Galveston's beachfront lands for national defense and commercial purposes without approval of the “federal Supreme Executive Power” of Mexico, presumably the Mexican President. However, in 1840 the Republic of Texas, as later confirmed by the State of Texas, granted private title to West Galveston Island without reservation by the State of either title to beachfront property or any public right to use the privately owned beaches. Public rights to use of privately owned property on West Beach in Galveston Island, if such rights existed at that time, were extinguished in the land patents by the Republic of Texas to private parties. In some states, background principles of property law governing...

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