Brannan et al. v. State Of Texas et al.

No. 01-08-00179-CV, Court Of Appeals Of Texas, First District, Houston, opinion issued February 4, 2010

In this case applying Texas’ Open Beaches Act (Tex. Nat. Res. Code Ann. §§ 61.001-.254) (“the Act”) the owners of several beachfront houses argued they should not be denied permits to repair their houses or forced to remove their houses after storms moved the beach vegetation line to the landward side of their structures. The issues included whether by common law a public easement existed on the beach, was it a rolling easement, did the Act required removal of the houses, and were the owners entitled to compensation for a taking. The Houston Court of Appeals concluded:

  • The evidence conclusively established an easement by implied dedication. The court reached this decision under Texas common law, without relying on the Open Beaches Act. It found the summary judgment evidence conclusively established the public acquired an easement by implied dedication in part because the evidence showed that for a period of at least 40 years the public openly used the beach.
  • The rolling easement doctrine is valid and applies in this situation. The court favorably quotes from an Austin court of appeals decision: “A public easement on a beach cannot have been established with reference to a set of static lines on the beach, since the beach itself, and hence the public use of it, surely fluctuated landward and seaward over time. The public easement, if it is to reflect the reality of the public’s actual use of the beach, must migrate as did the customary use from which it arose.”
  • The houses are an encroachment on the easement and must be removed from the easement. The appellants contended that their houses cannot be an “encroachment” on the public beach under the Open Beaches Act due to the facts that the houses are stationary and the rolling easement moved landward to the houses. The court said the plain language of the Act contradicts that contention.
  • Enforcement of the easement is not a taking. The court reasoned that while the legal definition of how the bounds of the easement are determined was created by the government, it was an act of nature that caused the easement line to roll landward over the houses, not government action. The government is merely enforcing the easement.

According to the court, several of the same issues are involved in a case on which the Supreme Court of Texas has heard oral arguments, Severance v. Patterson.

Decision text should be available at (The court’s server wasn’t working properly at time of this posting. The decision is also available at the blog Houston Case Law Monitor,

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