Whose beach is it anyway? We’re about to find out.

Hurricane Rita’s destruction of West Galveston Island moved the vegetation line inland and, with it, the beach.

In 2007, some beachfront property owners, including Carol Severance, were told by the General Land Office that their land was seaward of the new vegetation line and now part of the “public” beach.

At issue is whether the vegetation line’s movement gives the state of Texas a “rolling” easement over the private land that requires property owners to give the public access to their property and perhaps even move their beach houses off of the land.

The legal question is whether there is any such thing as a “rolling” easement, i.e., since the state did not have an easement over the land prior to Hurricane Rita, how can it have one afterward?

In other words, when two pieces of adjacent land now suddenly “overlap,” who gets to use the overlapped portions-property owners or beachgoers? In this case, the answer lies in the courts’ interpretation of the Texas Open Beaches Act (OBA).

Carol Severance has fought her way to the Fifth Circuit Court of Appeals in defense of blocking public access to her land. The Fifth Circuit has asked the Supreme Court of Texas for guidance in helping them understand the application of the OBA. Hinging on the Texas Supreme Court’s response is a large amount of private property and potentially numerous displaced homeowners.

The plain language of the OBA makes clear that it does not create a land interest that was not already in place through an easement created under traditional common law rules. Here, the state has not shown that it had an easement over Carol Severance’s land prior to Hurricane Rita. Since there was no property interest in the land prior to the “overlap,” the OBA should not be used to create one now.

Whose beach is it? We can only hope the Texas Supreme Court and the Fifth Circuit Court of Appeals find the right answer.

– Ryan Brannan