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Public easements do not always ?roll? with the beachfront; grandparent visitation order overturned [Nov. 5, 2010]

By Don Cruse

The Texas Supreme Court issued opinions in two cases with today’s orders list.

No rolling easements on Texas beaches

Carol Severance v. Jerry Patterson, Commission of the Texas General Land Office, No. 09?0387 (DB).

This case came to the Texas Supreme Court as a certified question from the federal Fifth Circuit.

The basic question was whether or how the public easement along Texas beaches “rolls” as the beach lines change due, in this case, to an “avulsive” event, namely, Hurricane Rita. The Court answered that — at least for beaches in Galveston, and at least for hurricane-level events — the answer was no.

Justice Wainwright delivered the opinion of the Court, in which Justice Hecht, Justice Green, Justice Johnson, Justice Willett, and Justice Guzman joined.

The Court’s decision turned in large part on a distinction between avulsion, which brings a “sudden and perceptible” change in the property line through a storm or similar event, and mere erosion, which leads to change “gradually and imperceptibly.” It also rested on the particular history of land titles in Galveston, tracing back to a grant made by the Republic of Texas in 1840.¹

Because the change in this beachfront resulted from a hurricane, the Court concluded that the new beachfront did not automatically move the public easement:

In those situations, when changes occur suddenly and perceptibly to materially alter littoral boundaries, the land encumbered by the easement is lost to the public trust, along with the easement attached to that land. Then, the State may seek to establish another easement as permitted by law on the newly created dry beach to enforce an asserted public right to use private land.

The Court did not apply the same rule to smaller, more gradual changes — perhaps more for pragmatic reasons than a legal distinction:

It would be an unnecessary waste of public resources to require the State to obtain a new judgment for each gradual and nearly imperceptible movement of coastal boundaries exposing a new portion of dry beach. These easements are established in terms of boundaries such as the mean high tide line and vegetation line; presumably public use moves according to and with those boundaries so the change in public use would likewise be imperceptible. Also, when movement is gradual, landowners and the State have ample time to reach a solution as the easement slowly migrates landward with the vegetation line. Conversely, 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.

Thus, the Court concluded that “[h]aving divested title to all such West Beach property in the early years of the Republic”:

[A] public beachfront easement in West Beach, although dynamic, does not roll. The public loses that interest in privately owned dry beach when the land to which it is attached becomes submerged underwater.

Justice Medina delivered a dissenting opinion, in which Justice Lehrmann joined. (Chief Justice Jefferson did not sit on this case.)

The dissent took issue with the Court’s distinction between erosion and avulsion, noting that “both events are natural risks known to the property owner.” The dissent suggests that the majority’s rule will unduly burden the public’s right to beach access over time because “[t]he primary movement of the coastline is through hurricanes and tropical storms.”

Grandparent visitation order overturned

In re Richard Scheller, No. 09?1072 (per curiam) (DB)

After two young daughters lost their mother, they continued to spend time with their maternal grandparents. Eventually, however, the relationship between their father and those grandparents deteriorated, and the grandparents’ access was greatly reduced.

The grandparents sued for greater access, and the trial court awarded them visitation rights in a temporary order.

In a per curiam opinion, the Texas Supreme Court overturned the visitation order.

Relying on its own prior decision in In re Derzapf, the Court held that the grandparents had failed to meet the “high threshold” required to “overcome the presumption that a parent acts in his or her child’s best interest by proving that ‘denial . . . of access to the child would significantly impair the child’s physical health or emotional well-being.’”

Here, as in Derzapf, the Court concluded that “there is nothing in the record here to indicate anything more substantial than the children’s understandable sadness resulting from losing a family member and, according to the Pembertons, missing their grandparents.”

The Court therefore ordered the trial court to dissolve these temporary orders. The grandparents’ underlying suit continues, and they have an opportunity to present more evidence.

1. This last wrinkle may have surprised some of the parties. The Court’s opinion says “The briefs and the record do not address the early land grant of Galveston’s West Beach.” Slip opinion, at footnote 8.

Full post as published by Supreme Court of Texas Blog on November 05, 2010 (boomark / email).