Have you thought about purchasing beach front property in Galveston, Texas? Below is an article I read by Paula Burka in the June 2011 Texas Monthly Magazine. The insight into property boundaries is interesting and ever changing. Read on and let me know what you think about property rights in Texas where the public interest has always trumped private interest.
Coastal access is pretty much the only area of property
rights in Texas where the public interest has always trumped the private interest. That may finally be eroding.
I grew up in a house two blocks from the Gulf of Mexico, in
Galveston. Before I could drive, I would
walk to the beach, what there was of it.
Decades of wave action against the granite rocks at the base of the
seawall had carried off much of the sand, leaving a narrow longshore strip that
was washed continuously by the tides. I
liked to walk out a few feet into the water, where the incoming waves exhausted
themselves against the gradient of the shore, and wriggle my feet into the wet
sand. It was a game of sorts, the object
being to see how far I could sink into the muddy floor of the sea. The deepest I ever got was up to my ankles.
Over the years, countless Texans have enjoyed the seashore
in their own way, in part because Texas, bastion of private property rights
that it is, nevertheless has the most public-spirited beach access laws in the
country. Because Galveston is so close
to Houston, its beaches get the most traffic (in the early days of the Republic,
a stagecoach route actually ran along West Beach, as did a mail route, and more
than a century later I got my first driving lessons on the hard-packed sand),
but Surfside Beach, Port Aransas, and the north and south ends of Padre Island
are not far behind. When it comes to
protecting the public interest, Texas doesn’t get much right—but it has always
been right about this. Unlike
California, where access to beaches is limited to parks and wet sand, Texas has
almost no restrictions on public access to the coast.
Ownership of the beach is determined by two boundaries, the
vegetation line and the line of mean high tide, the more important of which is
the latter. According to state law, the
line of mean tide (which is measured across an 18.6-year cycle) constitutes the
border between public and private ownership.
The state owns everything seaward of the high tide line in trust for the
public; landward, the beach can be privately owned, but up to the line of
vegetation it remains subject to a public access easement. Historically, the state has recognized that
this easement—the right to cross private property in order to reach the
beach—has been established by the continuous use of the beach by the public
over the many decades since the coast was first settled. In case after case, Texas courts have upheld
this right. Public beach access is also
enshrined in a statute called the Open Beaches Act, passed in 1959, and in the
state constitution.
I would like to report, as summer begins and our thoughts
turn to the coast, that the public’s right to use the beach, on the other side
of the mean high tide line, is secure for all time, but alas, this is not the
case. More and more of Galveston
Island’s beaches, as well as those farther down the coast, are now bordered by
high-end subdivisions and condos, and collisions between the public and private
owners are inevitable. A recent decision
by the Supreme Court of Texas came down squarely on the side of private
interests. The case, Severance v. Patterson, would require
the public to reestablish its right to access the beach after every hurricane
that changes the configuration of the shoreline. In other words, after a big storm causes the
lines of mean high tide and vegetation to shift, the public would have to start
from scratch and exercise continuous use of the beach until such time as they
have established a new easement, a process that could take many decades. In the meantime, access would be restricted.
The origin of the Severance
case was Hurricane Rita, which battered the coastline in 2005. A few months earlier, a woman named Carol
Severance had purchased beachfront property on Galveston Island’s West
Beach. The turbulence of the hurricane
caused the vegetation line to retreat, leaving Severance’s rental home stranded
on the beach, where it interfered with the public easement. The General Land Office notified Severance
that the state could seek to forcibly remove structures on the public beach, at
which point she filed suit against the state in federal court.
Ultimately, the U.S. Court of Appeals for the Fifth Circuit
asked the Texas Supreme Court to determine questions of state law.
Anybody who buys beachfront property in Texas is informed
that the public has established an easement that guarantees the right of access
to and from the beach and across their property. Nonetheless, the argument put forward by
Severance’s legal team (a property-rights public-interest group from, it seems
ironic to note, California) was, in effect, “What public easement?” The portion of the beach between her property
and the line of mean high tide—the point at which private ownership ends—had
been devastated by a series of storms. When
the beach was submerged by high water; their argument went, the easement lapsed
and the public lost its right of access.
To regain its property right, the public would have to start anew the
lengthy and difficult process of building a claim for an easement.
You don’t have to have grown up two blocks from the beach to
know that the seashore is a dynamic environment. The only consistent aspect of it is
change—not just the constant little shifts of tide, wind, and waves that
continuously alter the landscape but also the occasional dramatic
transformations wrought by storms. The
court’s opinion, handed down last November, differentiates between these
gradual and sudden changes, but while it makes clear that the former do not
challenge the public’s right of access, it opens the door for the latter to do
just that. This is the looming threat to
the public’s right of access: If the
court’s decision is allowed to stand, a hurricane could swallow a huge chunk of
beach and cause the public’s easement to be erased. As the court sees it, if the sand is carried
off into the sea, the easement ceases to exist (unless or until the public, over
time, manages to reestablish it, which is very difficult, particularly in an
era when property rights are regarded as sanctified).
The folly in this ruling should be obvious. The public easement is not about any
particular grains of sand. It attaches
to the beach as a whole. This is why the
idea of a “rolling easement” has been recognized in several previous Texas
cases (though not this one). In order to
mean anything, the public’s easement must be as dynamic as the beach
itself. As Justice David Medina cited in
his dissent: “An easement fixed in place
while the beach moves would result in the easement being either under water or
left high and dry inland, detached from the shore. Such an easement, meant to preserve the
public right to use and enjoy the beach, would then cease functioning for that
purpose.” Yet this is exactly what will
happen if the Supreme Court follows the majority opinion in the case.
Yielding to please from affected parties, ranging from
surfers to the City of Galveston to Jerry Patterson, the feisty commissioner of
the General Land Office, the Supreme Court granted a rare motion for rehearing,
which took place on April 19. I attended
the oral arguments, and the courtroom was packed—hardly normal for the Supreme
Court. But this is no ordinary legal
dispute. Where the court went wrong is
not only that it chose property rights over public rights but also that it
sided with the party who bought coastal property after being provided full
notice of the perils of seaside ownership, the existence of a pubic easement,
and the state’s Open Beaches policy. On
the other hand, the court poured out the people of Texas, who had done
everything necessary to validate their easement, only to have it taken
away. If anyone’s property was usurped
without compensation, it was the public’s.
Severance gambled and lost, only to have the court bail her out, while
depriving the public of a property right it had established almost two hundred
years before she came along.
We will now have to wait and see what the Supremes decide to
do next. Patterson has written the court
that he considers its ruling in Severance
to be “terribly wrong” and warned of the consequences that could follow—one
being that if the beach becomes private property, as the court contemplates,
the state will not be able to perform sand nourishment projects to stabilize
the beach, because the state constitution prohibits public benefits for private
property. The result would be still more
beach erosion, which would threaten private property. His concern is that Severance’s counsel,
whose public-interest law firm vigorously defends property rights, seeks to
“Californize” the Teas coast by confining public beaches to parks and wet sand.
Some 42 years ago, fresh out of law school, I went to work
as counsel for the Interim Beach Study Committee of the state Senate. I wrote a 73-page report about public rights
(which, I was surprised to discover, is part of the record in the Severance case). I believe that the opinion of the Supreme
Court in Severance is a grave
disservice to the millions of Texans who are drawn to the seashore every
year. If it is allowed to stand, the
public’s right to use the beaches will be at risk, over and over again, every
time a major storm changes the profile of a beach. And I wonder:
If the court rules for Severance, will my children, will their
children—will any Texan—be able to stroll down to the nearest beach and stand
in the surf, wriggling their toes as their feet are gradually sucked down in
the soft wet sand?
