Thursday, April 28, 2011
In 2010, Professor Matt Festa posted on the Severance v. Patterson case, which addresses Texas's Open Beaches Act and the question of "rolling easements" under the Act. In Severance, the Texas Supreme Court held that when the public has established an easement over private beachfront property and the ocean later covers the property, a new public easement must be proven; the easement does not "roll." Specifically, the court determined that "when drastic changes expose new dry beach and the former dry beach that may have been encumbered by a public easement is now part of the wet beach or completely submerged under water, the State must prove a new easement on the area" and held that "Texas does not recognize a 'rolling' easement on Galveston’s West Beach."
In a rare action, the Texas Supreme Court later granted a rehearing of this decision, as described in another helpful post from Professor Festa, and on April 19, the court held oral argument. J. David Breemer represented Carol Severance, the landowner, and began by arguing that "easements created by public use along the shore do not pick themselves up and roll inland onto new areas of private land not subject to public use simply because the vegetation line has moved," and that the "key" to the decision was not avulsion or erosion law but "settled easement law." Justices Medina and Lehrmann--who dissented from the initial decision--actively questioned Mr. Breemer, asking, for example, whether Severance had an expectation of exclusive use when she bought her property following the enactment of Texas's Open Beaches Act and whether she might have expected that the vegetation line would frequently move. Mr. Breemer responded that a landowner should not expect from any common law provision that because a vegetation line suddenly disappears, the public has obtained an easement. Justice Lehrmann suggested that vegetation lines frequently move along the beach--that unlike with rivers, events "that cause the vegetation line [along the ocean beach] to move are recurring," therefore perhaps implying that landowners along ocean beaches should expect such changes. Justice Lehrmann voiced additional concerns that if easements do not roll, the public may never be able to obtain easements to the beach.
Justice Medina then returned to the question of expectations, asking how, if Severance "purchased the property subject to all the disclaimers," she could have standing to pursue her claim. Justice Medina, in an inquiry similar to Justice Lehrmann's earlier question, also voiced concerns as to how the public would have adequate access to the beach following this decision. Mr. Breemer responded, "It's supposed to be difficult to acquire easements on private property." Justice Guzman also raised questions about the public's rights to the beach and how Severance could show that the right had been limited, asking, "Do you agree that the public has a right to use the beaches that predates any division or subdivision of those [beach home] lots?" Mr. Breemer appeared to concede that the public's right to use the beach predated the purchase but argued that the public's right was very "limited" following the hurricane and the movement of the vegetation line. Justice Guzman followed up, asking, "Does the public retain anything after the movements that caused the changes?" Mr. Breemer responded that the public easement proven along Galveston is under water now, but because the public use has migrated uninterrupted over the years as the water line has gradually moved in, public use has continued, although it is limited. It was not wholly clear from Mr. Breemer's response how the public has any continued use right, as its right is now underwater. Mr. Breemer also reemphasized his argument that the public right extends only to the land "actually used" by the public. Justice Guzman once again responded, "But if we assume the public had the right to access the beach from time immemorial, then that is the public's use. They had used it."
The argument then turned to the state. Daniel L. Geyser, the attorney representing the state parties, began by arguing, "Plaintiff today continues to press for a property right that she never had, and in doing so she invites the court to eviscerate a fundamental public right reflecting an unbroken tradition of dry beach access extending to the days of the Republic." He emphasized that easements under the common law are not static. Justice Green quickly began the questioning, asking Mr. Geyser why anyone would want to build a house on the beach if the court followed Texas's argument. Mr. Geyser responded that the rule "always has been" that an easement might roll onto the property and that no compensation would be provided to the burdened landowner. Indeed, he argued, we must not forget the expectations of those who purchase houses in third, fourth, and fifth row areas; these homeowners, he claimed, expect that they will have access to the beach. He also focused on the expectations of the surrounding community--expectations that are largely grounded in tourism and rely on public access. Justice Wainwright expanded Justice Green's initial line of questioning, asking Mr. Geyser whether homeowners along the beach had an expectation that the state would take their property. Mr. Geyser responded that the homeowners bought with the expectation that they were to have "land that is in a dangerous area"; this is why, he argued, the Texas Legislature has clarified the common law rule, and people "invest against the backdrop of that common law rule." Justice Wainwright countered that Mr. Geyser had provided "no authority for the proposition" that private owners did not have a property interest in the beach area that the state claimed was subject to a public easement, and Mr. Geyser vehemently disagreed, arguing that he had provided authority showing beach access since the days of Republic--including a commitment to access in the Texas Constitution. Justice Hecht asked about the relevance of previous cases in an attempt to determine when the common law of access was established. Mr. Geyser seemed to emphasize that we cannot rely on the date of case holdings to determine exactly when the common law arose because the common law relies on factors such as "fixed and settled expectations" and tradition--factors that exist long before case decisions emerge that recognize the common law. In response to further questions from Justices Willett and Wainwright, Mr. Geyser argued that easements, like nuisance, are "background principles of common law."
It is of course not clear whether the court will change its mind from its initial decision in favor of Mrs. Severance, the landowner, but don't rely on my rough summary above to reach your own opinion on the matter. As indicated above, you can listen to the oral argument here.