The recent Texas Supreme Court decision in Severance v. Patterson has some worried that the millions of Texans who visit the Texas coast each year will lose access to the state’s public beaches.
Despite such predictions of doom, Texas beaches will remain open and accessible. All the Court did is ensure that private property rights are not trampled by the public on their way to the beach.
After Hurricane Rita slammed into the Texas coast in 2005 and dramatically altered the vegetation line near the shore, Carol Severance found her house suddenly sitting on the beach.
She wasn’t surprised by that because she knew the risk she was taking when she bought property near the beach. She was surprised, however, that the state of Texas intended to claim that her house now sat on the public beach and was potentially subject to uncompensated demolition.
There is no dispute that prior to Rita a public easement allowed access to the beach seaward of Severance’s property. With the former beach under several feet of water, however, the question became whether that easement suddenly “rolled” landward after the hurricane to make Severance’s land the new public beach. A federal court hearing her dispute with the state — which had sought to enforce an easement on her property — asked the Texas Supreme Court for guidance on that question.
One of us, Bill Peacock, was in 2003-04 the primary official under the land commissioner responsible for the General Land Office’s oversight of Texas beaches.
After touring the beaches numerous times and seeing the effects of both years of continuous erosion and recent storms — including houses on the beach and in the Gulf, it became obvious to him that the idea of public access to the beach suddenly being imposed onto private property after a storm presented major challenges to anyone interested in protecting private property rights.
Fortunately, Mr. Peacock wasn’t required to suspend his support of property rights to properly enforce the law.
Houses have periodically shown up on the public beach since we started building beach houses, yet this hasn’t stopped Texans from enjoying their beaches. People may have to walk around—or under—a house for a bit, but particularly after a major storm the houses quite often “move” back behind the vegetation line as the beaches are naturally replenished.
The Texas Open Beaches Act was adopted in 1959 with this reality in mind. In fact, it merely codified existing common law that ensured public access to already existing public beaches. What it did not do was create public beaches where none existed before. Thus there are miles of beaches along the Texas coast today that are not public.
Specifically, the Act guarantees public access to a beach “if the public has acquired a right of use or easement to or over an area by prescription, dedication, or has retained a right by virtue of continuous right in the public.” An easement, therefore, cannot just be asserted. It has to be proven by prescription, dedication, or custom.
As the Texas Supreme Court reviewed the case, it determined there was simply no evidence in the record of an easement by prescription or dedication on Severance’s land. And it is obvious that when an upland property suddenly becomes part of the beach due to a storm, the public has not had a “continuous right” to use it.
Based on this, the Court ruled (twice) that while the public has acquired the right to access many beaches over time, it does not suddenly acquire the right to access private property that becomes the beach because of a major storm.
The Court’s majority opinion cited legal precedent dating back to William Blackstone to explain that in the history of Anglo-American law it is well-established that the gradual shifting of the beach (through erosion) carries different legal consequences than a sudden shift (through avulsion). There is no authority in Texas for the proposition that an easement rolls inland after avulsion.
Thus it is possible for the public to acquire an easement over time as a beach gradually shifts and the public uses it without interference from property owners. But the law is clear that a beach cannot become public overnight.
Those attacking the Court’s decision are really attacking the body of Texas law that protects property owners from efforts to benefit the public — or some portion of it — at private expense. They are arguing that protecting property rights in this instance will somehow harm the public and therefore the state is justified in restricting those rights.
Texas law, however, already provides the means to put private beaches to a public use. If the public wants more beach access, then the state should pay for it through the use of eminent domain, just as it does when eminent domain is used to acquire land for various parks and recreational facilities throughout the state.
The requirement to pay just compensation for a public use, which is enshrined in both the Texas and U.S. Constitutions, is not just a matter of fairness; it is a way to encourage government accountability.
In a 1988 opinion, the U.S. Supreme Court explained this point by warning about government seizures of private property that could be achieved “off-budget, with relative invisibility and thus relative immunity from normal democratic processes.”
Forcing a government to pay just compensation thus plays a role in maintaining a healthy democratic process. The state presumably had many reasons for desiring a beach easement on Severance’s property, but government accountability is better preserved when the state is forced to present the reasons directly to the public.
Severance’s case, therefore, was not merely a “quixotic adventure” or a “thinly veiled Libertarian crusade” as one federal judge wrote in this dispute. Critics of the Court’s opinion in Severance should be wary of advocating for a doctrine that largely insulates the state from having to pay compensation to property owners along the Gulf, or anywhere in the state for that matter.
We see this type of assault on private property all the time. The Austin McMansion Ordinance is one instance, where homeowners are “protected” from their neighbors who want to build 2,600 square-foot houses. Zoning along Dallas’ Ross Avenue, which has driven out dozens of small businesses to the benefit of upscale urban residents, developers, and the tax collector, is another.
These efforts to subordinate property rights to the public good are seen by many as ways to boost economies and grow local tax bases. However, the opposite is true.
The real harm to society and the economy comes from not protecting private property. We’ve seen that repeatedly as governments across the country have trampled property rights and ruined their economies in the process. New York City in the 1970s and Michigan and California today come to mind.
Texas has taken the opposite path, leading the nation in job creation and economic strength, in large part because it has protected property rights better than almost any other state. This is evident once again in our laws that carefully balance property rights with public access to the beach.
Texans should be thankful we have such laws and that we have a Supreme Court that is willing to uphold them.
Bill Peacock is the Vice President for Research and Director for the Center for Economic Freedom at the Texas Public Policy Foundation, a non-profit, free-market research institute based in Austin. Vikrant P. Reddy is a policy analyst in the Foundation’s Center for Effective Justice.