The Supreme Court of Texas has ruled 5 to 3 in favor of
Galveston homeowner Carol Severance in a dispute with the State of
Texas over Severance's house, the beach it fronts on, and the
public's right of access to that beach — which, over the
years, has moved closer and closer to the house.
The upshot of the court's ruling: Texas Land Commissioner Jerry
Patterson can't order Severance to demolish or move her building,
even though erosion from Hurricane Rita in September 2005 re-shaped
the beach in front of the house, submerging a parcel of land
between the house and the Gulf of Mexico and moving the so-called
"line of vegetation" — which the state uses to define the
public's rights of access — landward of the building.
The Court's ruling and opinion, authored by Justice Dale
Wainwright, is available here ("Severance
"), along with dissenting opinions written by the
three minority judges.
According to the ruling, the state's ownership of the "wet
beach" — the area between the high and low tide lines —
is undisputed. But the public's right to use the "dry beach,"
between high tide and the first vegetation, depends upon formal
easements or long accustomed use — neither of which, the
court said, has been established in this case.
"While losing property to the public trust as it becomes part of
the wet beach or submerged under the ocean is an ordinary hazard of
ownership for coastal property owners," the court wrote, "it is far
less reasonable, and unsupported by ancient common law precepts, to
hold that a public easement can suddenly encumber an entirely new
portion of a landowner's property or a different landowner's
property that was not previously subject to that right of use."
The court's ruling rests heavily on the distinction between
"erosion," a slow and imperceptible encroachment of the ocean or
beach onto a private piece of land, and "avulsion," a sudden
submersion or uncovering of land caused by a singular, extreme
event. Hurricane Rita's rewriting of the coastline falls into the
category of avulsion, said the court — and in that case, the
state has no right to suddenly deprive the landowner of her
customary and established right to prevent others from trespassing
on her private land or house.
In most states, a state Supreme Court ruling would end the
discussion. But in Texas, Supreme Court Justice is an elected
office — and Jerry Patterson, the Land Commissioner, is now
urging voters to take matters into their own hands and oust the
Justices who he says have taken away the public's right to use
publicly owned beaches. The Beaumont Enterprise
wants judges ousted for Texas beach ruling
," by Harvey Rice).
Said Patterson: "We now have private beaches in Texas where the
public can be excluded. I think folks should remember this when
it's time to vote."
Corpus Christi Caller
editorial page writer Nick Jimenez
ballot justice to these five justices
," by Nick Jimenez).
"Think about your lost right to a public beach when next you see
the names of Justices Dale Wainright, Nathan Hecht, Paul W. Green,
Phil Johnson and Don R. Willett on a ballot," wrote Jimenez.
But property-rights advocate J. David Breemer of the Pacific
Legal Foundation, who represented homeowner Carol Severance in the
case, argued in the Galveston Daily News
that the court's
decision was less sweeping, and more reasonable, than opponents are
making it out to be ("Severance decision was
correct and just
," by J. David Breemer). Wrote Breemer: "The
ruling acknowledged the public retains significant public beach
access options. The state still owns all beach land to the high
tide line, however far inland it goes, and can acquire additional
private areas by proving prior public use or by buying it. Once a
public right of way lawfully exists on private land, it can
gradually shift inland. But the state cannot decree the public
beach expands inland to swallow new areas of private land —
land never before subject to public use — when a storm moves
Texas Land Commissioner wants Carol Severance's beachfront
house in Galveston torn down or moved to preserve public access to
In reality, it seems likely that few parcels of land will end up
fitting the facts in the Severance case: a property which has
suddenly found itself in the sandy area between wet beach and
vegetated upland as the result of a single major storm. For now,
the result of the decision is simply that Carol Severance gets to
keep her house on the beach. Only time will tell whether the case
will create a precedent that ends up affecting other beachfront