Severance v. Patterson

Carol Severance (plaintiff) purchased property on Galveston Island’s popular West Beach, located on the Gulf of Mexico’s Texas coastline. When Severance purchased her property, she received an Open Beaches Act (OBA) notice that natural processes, including shoreline erosion, could cause portions of her property to fall below the high-water mark, making those portions part of the public beach. In Texas, the high-water mark sets the boundary between public dry-sand beaches and private upland property. At the time of purchase, there was no public beach access easement on Severance’s property; however, there was an existing easement on the private property located between Severance’s property and the public beach (Property B). The high-water mark was located seaward of Property B. Shortly after Severance purchased her property, a hurricane hit West Beach, causing a major avulsive event that resulted in severe erosion. An avulsive event involves a sudden, perceptible shift in the boundary between land and sea, whether seaward or landward. After the hurricane, Property B was completely submerged, and the high-water mark moved landward. As a result, a portion of Severance’s property, including her home, fell seaward of the new high-water mark, meaning that it was now part of the public beach. The State of Texas (defendant) notified Severance that she was required to remove her home to preserve the public beach access easement. Severance sued Texas in district court, arguing that (1) Texas’s attempt to enforce an easement on her previously unencumbered private property was an unconstitutional taking; and (2) easements did not roll following avulsive events. The district court dismissed Severance’s case, holding that the public access easement on Property B rolled onto Severance’s property after Property B was submerged. Severance appealed to the Fifth Circuit. The Fifth Circuit certified a question to the Texas Supreme Court regarding whether Texas recognized rolling public beach access easements.