On November 5th, 2010, the Texas Supreme Court issued an opinion in Severance v. Patterson, a case which the Texas Public Policy Foundation previously discussed here. The case caught the Foundation’s attention because it concerns two issues that are central to TPPF’s mission: private property rights and limited government. The Foundation agreed with the Court’s ruling; however, the Court has since reheard the case.
In order to urge the court to reaffirm its original decision, the Foundation recently filed an amicus brief in the case in support of Carol Severance, the appellant.
The Texas Open Beaches Act affirms that the public has acquired an easement through use along most of Texas’ gulf beaches, including the beach in question in this case-Galveston Island’s West Beach. The public easement stops at the vegetation line. Hurricane Rita, however, caused the vegetation line to shift suddenly and significantly landward. The state of Texas argues that Texas law observes a “rolling easement” doctrine that permits the public easement to shift landward in the wake of the hurricane so that the public can use the new beach. Several private property owners, including Ms. Severance, believe this position diminishes their property rights. Ms. Severance chose to contest the state’s argument, and our brief in her support boils down to this:
First, we do not believe that a “rolling easements” doctrine exists in Texas law. We, therefore, think the original opinion was correct on the legal merits, and we encourage the court to reaffirm it.
In addition to the law, however, we want the Court to appreciate two public policy points that have an impact on the principle of limited government:
1) If the Court recognizes a doctrine of “rolling easements,” it will essentially be placing the burden of proof on property owners in these cases. Governments are extremely powerful, and in property rights legislation, one of the checks on this power is the requirement that the government prove its case to the court. If we move to a system wherein the presumption goes to the government and property owners are instead forced to prove their case, we will lose an important “check” in our system.2) When governments take property, they compensate property owners by using taxpayer dollars. Taxpayers obviously want to know how their money is being spent, so governments are forced to justify their actions to taxpayers through the normal democratic process. A “rolling easement” doctrine allows the government to escape this process because it permits the acquisition of an easement on a new piece of land without having to pay compensation. Because the government would get to dodge the tough job of justifying a public expenditure, we would lose yet another important “check” on government power.
TPPF emphasizes that this case should be decided on its legal merits – and the legal merits compel the court to reaffirm. In addition to the law, however, there are important public policy dimensions to this case, and we filed our amicus brief because we want the Court to be aware of them.