Texas Supreme Court repeats: State can’t “roll” away beachfront property rights

AUSTIN, TX, March 30, 2012: Ruling today in Pacific Legal Foundation’s case of Severance v. Patterson, the Texas Supreme Court once again rejected the state’s claim that government can gain control of private beachfront land whenever the land loses its vegetation and becomes a dry, sand area. In other words, the court held that the state may not “roll” or impose a “public” beach on private land simply because a storm blows away the vegetation or moves the vegetation line land­ward. The state must instead prove that the public has lawfully acquired access rights by long occupation of the area.

This is the second time the Texas Supreme Court has sided with PLF and rejected the state’s “rolling easement” theory. The court originally struck it down in a decision issued in November, 2010. But it then granted rehearing and the case was re-argued. Today’s ruling effectively reaffirms the court’s initial decision.

J. David Breemer Principal Attorney

“Today’s ruling is a great victory for all Texas property owners, whether they live at the beach or far inland,” said Pacific Legal Foundation Principal Attorney David Breemer, who argued the case before the Texas Supreme Court. “The court confirmed that when the state wants to take private land for public use, it must use lawful means — like paying compensation — not clever theories that magically transform private land into public land.”

For some years, Texas officials have been promulgating a “rolling” beach easement policy whereby they purported to be able to declare private land “public” whenever the vegetation line moved landward after a storm. “Today’s Texas Supreme Court ruling rejected the state’s novel — and confiscatory — concept that an easement lawfully proven to exist on one parcel can jump to new private land merely because the vegetation was washed away,” said Breemer. “Such a theory conflicts with Texas easement law and fundamental property rights, like the right to exclude trespassers.”

Carol Severance's beachfront property

Pacific Legal Foundation is the leading legal watchdog organization that litigates for limited govern­ment and property rights, in courts across the country.

Breemer and PLF represent Carol Severance, who owned beachfront property in Galveston. After 2005’s Hurricane Rita moved the vegetation line, state officials said her homes were on “public” beach and in violation of the law. She was prevented from excluding unwanted strangers or building on her land, and her homes were subject to removal at the state’s whim. The court ruling today recognizes that the state had no legitimate claim to Severance’s land based solely on the fact that a hurricane denuded the land of vegetation.

Today’s Texas Supreme Court decision was issued in response to a request from the Fifth U.S. Circuit Court of Appeals, which asked the Texas Supreme Court to clarify the nature and source of the “rolling” easement policy.

“As the Texas Supreme Court has clearly held today, state officials have no basis in state law for trying to use the ‘rolling’ beach easement policy to turn private land into a public beach park without compensating the property owner,” said Breemer. “Government can’t sanitize a wrongful and unconstitutional taking of property by cloaking it in creative theories. Private property is still private, no matter the slogan you use to take it. This is a bedrock constitutional principle, and the Texas Supreme Court today has said that government can’t try to erode it.”

About Pacific Legal Foundation
Donor-supported Pacific Legal Foundation (www.pacificlegal.org) is the leading legal watchdog that litigates for limited government and property rights, in courts across the country.

PLF just won its sixth precedent-setting victory for liberty and limited government at the U.S. Supreme Court — Sackett v. U.S. Environmental Protection Agency, in which PLF defeated EPA’s attempt to exempt itself from judicial review when it labels people’s property as “wetlands.”