Brannan v. State of Texas (pdf) (Tex.App.- Houston [1st Dist.] Feb. 4, 2010)(Opinion on
rehearing by Alcala) (
Open Beaches Act, effect of moving line of vegetation on existing houses on
beach, takings claim)
AFFIRM TC JUDGMENT: Opinion by
Justice Alcala     
Before Chief Justice Radack, Justices Alcala and Hanks
01-08-00179-CV  Angela Mae Brannan, Individually and as Independent Executrix of the Estate of Bob
Albert Brannan, Deceased, et al v. The State of Texas, et al    
Appeal from 239th District Court of Brazoria County
Trial Court Judge: Hon. Patrick Edward Sebesta  

OPINION ON REHEARING

This appeal concerns the application of the Open Beaches Act at Pedestrian Beach in the Village of
Surfside Beach on the Gulf Coast of Texas. (1) Appellants, Angela Mae Brannan, Individually and as
Independent Executrix of the Estate of Bob Albert Brannan, deceased, Brooks and Mary Porter, Russell
and Judy Clinton, Russell Clinton as Independent Executor of the Estate of Elizabeth Clinton, deceased,
Reg and Beaver Aplin, Partners d/b/a Benchmark Developing, Louise Bullard, Diane Loggins Clark,
Joseph Cornell Dewitt, Lisa Marie Dewitt Fuka, Macario Ramirez, Chrissie Dickerson, Jeffrey Dyment,
the Marvin Jacobson Family Holding Company, Charles T., Cathy, James, and Patricia Meek, Mark
Palmer, James C. and Patricia Pursley, Kenneth C. and Andrea Reutzel, S & S Holdings, LLC, and
Rogers Thompson, Executor of the Estate of P.E. Kintz, deceased, (collectively, "the Owners"), have
filed a motion for rehearing and for en banc reconsideration of our opinion issued on August 28, 2009.
We deny the rehearing, but we withdraw our opinion and judgment of August 28, 2009 and substitute
this opinion and judgment in their place. Because we issue a new opinion in connection with the denial
of rehearing, the Owners' motion for en banc reconsideration of our prior opinion is moot. Richardson-
Eagle, Inc. v. William M. Mercer, Inc., 213 S.W.3d 469, 472 (Tex. App.--Houston [1 Dist.] 2006, pet.
denied).

The Owners appeal from the trial court's judgment in favor of appellees, the State of Texas, Texas
General Land Office, Texas Land Commissioner Jerry Patterson, in his official capacity, Texas Attorney
General Greg Abbott, in his official capacity, the Village of Surfside Beach, Texas, Mayor James
Bedward, Surfside Beach, Texas, in his official capacity, Environmental Defense, Surfrider Foundation,
and Criminal District Attorney Jeri Yenne, in her official capacity.

The Owners present four issues in this appeal. First, the Owners assert the State has not proven that a
public beach easement has ever existed at Surfside Beach. Second and alternatively, the Owners
assert that even if an easement existed at Surfside Beach, their houses should not be removed from the
easement because the houses were built outside of the easement before the line of vegetation moved
landward and the public's use of the beach under the easement can co-exist with the houses. The
Owners' last two issues contend that they are entitled to damages because the ordered removal of their
houses has resulted in a permanent taking of their property without compensation, and the denial of
access to and utilities for their property by the State and Village has resulted in a regulatory taking.

After the trial court issued the injunction ordering the removal of all of the 14 houses on the easement,
11 of those houses were removed by the force of nature, leaving only three houses. We conclude the
trial court properly ordered the removal of the three houses remaining on the easement that moved to
them and properly denied these three owners' claims for damages due to a permanent taking. We also
conclude the trial court properly denied all the Owners' claims for regulatory taking damages. We affirm.

Background

The Owners had houses on beachfront lots in the Village of Surfside Beach. The Owners' lots are in an
approximately one and one-half mile area known as "Pedestrian Beach" because the Village prohibited
driving along that stretch of beach in the late 1970s or early 1980s.

For the most part, the Owners' houses were built in the 1960s, and, at the time of construction, were on
the landward side of the vegetation line. In 1998, Tropical Storm Frances moved the vegetation line
landward, making the houses stand between the water's edge and the vegetation line. David Dewhurst,
who was then the commissioner of the General Land Office, sent a letter to the Attorney General of
Texas, identifying a number of houses in Surfside Beach that were seaward of the vegetation line,
claiming these houses were encroachments on the public beach in violation of the Open Beaches Act.
The Attorney General decided to take action to remove houses that were an "immediate threat to public
health and safety" or that "significantly blocked public access." The Attorney General informed the
Owners (or their predecessors in title) that their houses did not meet either criteria and were not subject
to removal. However, because the General Land Office had classified the Owners' houses as
encroachments on the public beach, the Village refused permits to allow the Owners to repair septic
systems and cut off water to some of the properties at issue.

In 2001, a number of property owners filed suit against the State and the Village, seeking a declaratory
judgment affirming their right to repair, maintain, and access their houses and also seeking damages for
the loss of use of the property following Tropical Storm Frances. The State filed a counterclaim, seeking
removal of the houses pursuant to the Open Beaches Act. (2) Most of the original plaintiffs agreed to
nonsuit their claims in return for the State dropping its counterclaim for removal of their houses. The
remaining plaintiffs amended their petition, adding a claim that the imposition of the public beach
easement and the removal of their houses were takings without just compensation.

Of the Owners currently involved in this appeal, the ones involved in the original litigation were the
Brannans, the Porters, and Clinton, individually and as executor. For clarity, when we refer to these
original plaintiffs as a separate group, we will call them the Original Owners. In their original petition, first
amended petition, and second amended petition, the Original Owners acknowledged the existence of an
easement at Surfside Beach in the Gulf Coast of Texas. The Original Owners argued that the easement
at Surfside Beach did not exist on the land underneath their houses, but acknowledged the existence of
an easement on the land seaward of their houses.

In examining the Original Owners' live pleadings at the time of the State's motion for summary judgment,
the Owners described the situation as follows:

At the time each of these houses was constructed all were landward of the vegetation line. The houses
did not move. They did not encroach onto the public easement. The vegetation line has moved
landward. The public easement has moved landward with it. Using a State developed concept called a
"rolling easement," developed from the common law of meandering easements, the public beach
easements have been imposed on the land on which these Plaintiffs' houses stood.

The owners also stated,

The beach houses are now seaward of the current vegetation line. Public easements of use and lateral
passage have been imposed upon the real property on which the beachhouses stand.

In a section listing defenses to the State's counterclaim, the Original Owners asserted,

The public's easement of use of the land on which the [Original Owners'] beachhouses sit is not
unrestricted. The public's meandering easement is limited by conditions on the land at the time the
easement is imposed. One of these is the existence of the [Original Owners'] beachhouses. . . . .

Not only did the live pleadings by the Original Owners acknowledge the existence of the easement, but
their responses to the State's partial motion for summary judgment similarly treated the existence of the
easement as an undisputed fact. In their response, the Original Owners said that their "initial intent in
filing their action for declaratory judgment was to ask the State court to determine and to declare the
scope of the public easement of use when it migrates onto private land on which there are existing
houses." They also stated, "One would think that after hearing the evidence that a District Court in
Texas could work out an accommodation between the rights of the public and the rights of the owner."
An affidavit from one of the Original Owners, Brooks Porter, averred that the "vegetation line in the
vicinity of my beachfront properties, and the public easement it delineates at Surfside, migrates. . . ."
Furthermore, he stated, "As a plaintiff I joined in the Original Petition to ask this District Court to
determine the scope of the public easement which had been imposed on my property." The Original
Owners primarily argued that when the easement migrates into their property, their houses should be
allowed to remain on the easement because the houses do not interfere with the public's use of the
beach, and if their houses are ordered removed or if their access to utilities and permits to allow repairs
are denied, then they should be compensated for that as a governmental taking.

After Environmental Defense and the Surfrider Foundation intervened as defendants, the trial court
ruled in 2004 on the motions for partial summary judgment. The rulings pertinent to this appeal were
that imposition of the public beach easement and the removal of the houses were not takings of
property, and that the plaintiffs were not entitled to compensation. After these rulings, the Commissioner
of the General Land Office suspended for two years the efforts to remove the houses, pursuant to
section 61.0185 of the Open Beaches Act. (3) The lawsuit was effectively stayed from November 2004
to June 2006, when the moratorium period ended.

In October 2006, an unusually high tide or "bull tide" hit Pedestrian Beach. The tide removed a large
amount of sand from the beach, damaging pilings and water and sewer connections to a number of
houses. In response, the Village disconnected water and sewer service to the houses. The mayor also
requested CenterPoint disconnect electric service to the houses. The Village denied or ignored
requests from Owners to reconnect to utilities and to allow them to repair their houses.

Following the bull tide, the State reasserted the right to remove houses that were seaward of the
vegetation line as encroachments on the public beach easement. The State also asserted that some of
the houses were on submerged lands, to which the State holds title. At this point in the litigation,
following the bull tide, many new plaintiffs joined the lawsuit by filing petitions in intervention in late 2006
through early 2007. For clarity, we refer to this group as the Intervening Owners. Among these
Intervening Owners were Louise Ballard, Dianne Loggins Clark, and Macario Ramirez and Chrissie
Dickerson. Ballard was the owner of property at 411 Beach Drive. Her house was landward of the
vegetation line when she purchased it on July 21, 1981. Clark was the owner of property at 211 Beach
Drive. Clark's house was also landward of the vegetation line when she purchased it on June 10, 2002.
When she bought the property, Clark's contract included the notice provision under section 61.025 of
the Texas Natural Resources Code warning that a structure that becomes seaward of the vegetation
line as a result of natural processes may be removed. (4) Macario Ramirez and Chrissie Dickerson
owned the property at 507 Beach Drive. Their house was landward of the vegetation line when it was
constructed. They purchased the house in 1978, prior to the requirement that the notice provision in
section 61.025 be included in the contract. (5)

Similar to the earlier Original Owners' petitions, the Intervening Owners' initially acknowledged that an
easement did exist seaward of their property, but they denied that one ever existed on their particular
property that was immediately landward of the easement. The Intervening Owners, however, mentioned
that there was no reported case establishing an easement on Follett's Island on which Surfside is
located. In April 2007, the Original Owners and Intervening Owners jointly filed an amended supplement
to the second amended petition and to intervenors' individual petitions seeking to allow them to
immediately repair their houses and to have utilities connected. This supplemental petition for the first
time asked for a declaratory judgment that "the State has failed to plead and to prove that the public
ever established a Common Law beach easement on that section of Follet's Island in the delta of the
Brazos River, which is now known as the Pedestrian Beach at Surfside Beach, Texas by any of the
means required by the Common Law."

In mid 2007, the State amended its counterclaim to include all the houses of the Intervening Owners, as
well as the Original Owners. The State's counterclaim asserted that all of the properties are adjacent to
the Gulf of Mexico in the Village of Surfside Beach and have houses that are either encroachments on
the public beach easement or on submerged land to which the State holds title. The State's counter-
claim asserted that the public has acquired a right of use easement in the Gulf of Mexico beach where
the properties at issue are located. Also according to the counterclaim, the public historically freely and
openly used Surfside Beach from the edge of the Gulf of Mexico to the line of vegetation.

In mid 2007, the Village filed a motion for summary judgment. The Village asserted,

[T]o the extent that any takings claims against the Village remain and have not been disposed of by
previous rulings of the Court, the Village and Mayor are entitled to summary judgment because there is
no taking as a matter of law. . . . [T]he Village has shown no intent to take under eminent domain. The
only intent of the Village act to [sic] within the existing laws and regulations passed by the State and [the
General Land Office].

The Owners responded to the Village's motion for summary judgment. The Owners contended that the
Village, not the State or the General Land Office, was the entity that denied permits for repairs and was
the "front man" in disconnecting or denying reconnection to utilities. Later that month, the Village
responded to the Owners' reply to their motion for summary judgment. The Village asserted that the
existing General Land Office regulations and the terms of the Open Beaches Act did not grant the
Village any discretion in denying the permits for repair and would be subject to penalties for issuing
permits in violation of the regulations or the Act. The trial court ruled in favor of the Village on the
plaintiffs' taking claims, stating, "For the reasons stated in the Motion for Summary Judgment, the Court
finds the motion is meritorious and should be granted." The court ordered that the Owners take nothing
against the Village and the mayor.

In August 2007, the State filed a motion for final summary judgment on its Open Beaches Act
counterclaims seeking a court order requiring the removal of the houses from the public beach
easement. The motion recited that it was intended to build upon prior, partial summary judgment rulings
by the trial court in favor of the rolling beach easement. The motion stated, "This Court has already
ruled that the rolling easement enforced under the [Open Beaches Act] is not a compensable taking
under the United States and Texas constitutions." Under a section called "Established Material Facts,"
the motion stated, "All the tracts lie entirely on the Gulf side" of Beach drive. The motion stated that the
public has freely and openly used the Gulf beach at Surfside "forever," and it attached evidence from
three sources to support that statement. The motion also asked for a civil penalty against each plaintiff
who had maintained a structure on the public beach easement in violation of the Open Beaches Act.

In response to this motion for summary judgment, the Owners stated, "Although the State describes its
'rolling easement' as having migrated on Plaintiffs' lands, the State has failed to prove the public has
established any easement on any strip of land on Follet's Island at Surfside, Texas seaward of Plaintiffs'
properties." The Owners, however, did not attach any evidence challenging the existence of the
easement Surfside Beach. The Owners refuted the claim that their houses were encroachments on the
easement that migrated to them and reasserted their takings claims.

In September 2007, the trial court granted the State's motion for summary judgment for an injunction to
remove houses from the public beach easement, but denied the State's motion seeking civil fines
pursuant to the Open Beaches Act. (6) After some plaintiffs settled and some of the claims were
nonsuited, the trial court severed the submerged land claims and rendered a final judgment, affirming
the earlier partial summary judgments and ordering the Owners to remove their houses. After the
nonsuits and severance, the only issues and claims before us in this appeal are whether a public beach
easement exists that should be imposed on the Owners' properties and, if so, whether the easement, in
the scope asserted by the State, results in a taking of the Owners' properties for which they are entitled
to just compensation. On September 12 and 13, 2008, the tidal surge associated with Hurricane Ike
destroyed 10 of the 14 houses at issue in this appeal. While the rehearing in this matter was pending,
the Owners notified this Court that one of the remaining houses had collapsed during a tidal surge. The
remaining houses on the beach after the storm are those of Diane Loggins Clark, 221 Beach Drive;
Louise Bullard, 411 Beach Drive; and Marcario Ramirez and Chrissie Dickerson, 507 Beach Drive.
These houses are now on the row parallel to and seaward of the vegetation line at Pedestrian Beach in
Surfside.

Standard of Review for Summary Judgments

We review summary judgments de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex.
2005). Summary judgment is proper only when a movant establishes that there is no genuine issue of
material fact and that the movant is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c). In
reviewing a summary judgment, we must indulge every reasonable inference in favor of the nonmovant,
take all evidence favorable to the nonmovant as true, and resolve any doubts in favor of the
nonmovant. Valence Operating Co., 164 S.W.3d at 661.

The Texas Open Beaches Act

The Open Beaches Act protects the public's rights of access to and use of public beaches. If the public
has acquired an easement or right of use by prescription, dedication, or custom, the Act provides a
means of enforcing the public's rights. Tex. Nat. Res. Code Ann. § 61.011(a) (Vernon 2001). The Texas
Open Beaches Act states,

It is declared and affirmed to be the public policy of this state that the public, individually and collectively,
shall have the free and unrestricted right of ingress and egress to and from the state-owned beaches
bordering on the seaward shore of the Gulf of Mexico, or 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, the public shall have the free and unrestricted right of ingress and egress to the
larger area extending from the line of mean low tide to the line of vegetation bordering on the Gulf of
Mexico.

Id.

The Act provides that the appropriate official "shall file" a suit to enforce the public's rights. Tex. Nat.
Res. Code Ann. § 61.018(a) (Vernon Supp. 2009). The Act states,

Any county attorney, district attorney, or criminal district attorney, or the attorney general . . . shall file in
a district court of Travis County, or in the county in which the property is located, a suit to obtain either a
temporary or permanent court order or injunction, either prohibitory or mandatory, to remove or prevent
any improvement, maintenance, obstruction, barrier, or other encroachment on a public beach, or to
prohibit any unlawful restraint on the public's right of access to and use of a public beach or other
activity that violates this chapter.

Id. (emphasis added).

The Act defines "public beach" as follows:

[A]ny beach area, whether publicly or privately owned, extending inland from the line of mean low tide to
the line of vegetation bordering on the Gulf of Mexico to which the public has acquired the right of use
or easement to or over the area by prescription, dedication, presumption, or has retained a right by
virtue of continuous right in the public since time immemorial, as recognized in law and custom. . . .

Id. § 61.001(8) (Vernon 2001).

The Act includes a notice provision to people who purchased property in the counties on the Gulf of
Mexico. Id. § 61.025 (Vernon Supp. 2009). The notice provisions warns that a structure that becomes
seaward of the vegetation line as a result of natural processes may be removed. Id. In pertinent part,
section 61.025 requires a notice in substantially the following form:

DISCLOSURE NOTICE CONCERNING LEGAL AND ECONOMIC RISKS OF PURCHASING COASTAL
REAL PROPERTY NEAR A BEACH
. . . .
· IF YOU OWN A STRUCTURE LOCATED ON COASTAL REAL PROPERTY NEAR A GULF COAST
BEACH, IT MAY COME TO BE LOCATED ON THE PUBLIC BEACH BECAUSE OF COASTAL EROSION
AND STORM EVENTS.
· AS THE OWNER OF A STRUCTURE LOCATED ON THE PUBLIC BEACH, YOU COULD BE SUED BY
THE STATE OF TEXAS AND ORDERED TO REMOVE THE STRUCTURE.

· THE COSTS OF REMOVING A STRUCTURE FROM THE PUBLIC BEACH AND ANY OTHER
ECONOMIC LOSS INCURRED BECAUSE OF A REMOVAL ORDER WOULD BE SOLELY YOUR
RESPONSIBILITY.

The real property described in this contract is located seaward of the Gulf Intracoastal Waterway to its
southernmost point and then seaward of the longitudinal line also known as 97 degrees, 12', 19" which
runs southerly to the international boundary from the intersection of the centerline of the Gulf
Intracoastal Waterway and the Brownsville Ship Channel. If the property is in close proximity to a beach
fronting the Gulf of Mexico, the purchaser is hereby advised that the public has acquired a right of use
or easement to or over the area of any public beach by prescription, dedication, or presumption, or has
retained a right by virtue of continuous right in the public since time immemorial, as recognized in law
and custom.

The extreme seaward boundary of natural vegetation that spreads continuously inland customarily
marks the landward boundary of the public easement. . . .

Much of the Gulf of Mexico coastline is eroding at rates of more than five feet per year. Erosion rates for
all Texas Gulf property subject to the Open Beaches Act are available from the Texas General Land
Office.

State law prohibits any obstruction, barrier, restraint, or interference with the use of the public
easement, including the placement of structures seaward of the landward boundary of the easement.
OWNERS OF STRUCTURES ERECTED SEAWARD OF THE VEGETATION LINE (OR OTHER
APPLICABLE EASEMENT BOUNDARY) OR THAT BECOME SEAWARD OF THE VEGETATION LINE AS
A RESULT OF PROCESSES SUCH AS SHORELINE EROSION ARE SUBJECT TO A LAWSUIT BY THE
STATE OF TEXAS TO REMOVE THE STRUCTURES.

Id.

Jurisdiction

The trial court ordered the Owners' houses removed from the easement, but none of the houses have
been removed as a result of the trial court's order. Instead, forces of nature removed all but three of the
houses. We have no jurisdiction to review whether the trial court properly ordered the removal of the
houses that have been removed by forces of nature because that matter is moot due to the fact that
these houses are no longer on the properties for reasons unrelated to the trial court's order. The
mootness doctrine limits courts to deciding cases in which an actual controversy exists. Camarena v.
Tex. Employment Comm'n, 754 S.W.2d 149, 151 (Tex. 1988). "[A] case is moot when the issues
presented are no longer 'live' or the parties lack a legally cognizable interest in the outcome.'" BP Prods.
N. America, Inc. v. Houston Chronicle Pub. Co., 263 S.W.3d 31, 34 (Tex. App.--Houston [1st Dist.] 2006,
no pet.) (quoting City of Erie v. Pap's A.M., 529 U.S. 277, 287, 120 S. Ct. 1382, 1390 (2000)).

We hold the following:

* •We lack jurisdiction over the claims concerning the injunction ordering the removal of those houses
that have been removed by the force of nature and the damages sought due to any court-ordered
removal of those houses;

* •We have jurisdiction to review the injunction ordering the removal of the three houses that remain at
221, 411, and 507 Beach Drive, and damages sought from the removal of the three houses; and


* •We have jurisdiction to review the damages asserted by all the Owners for regulatory takings for the
period of time beginning when the services were declined by the State and Village to the period of time
when the houses were or will be removed.

For clarity, the Owners with the three houses that remain standing will be referred to as the Three
Intervening Owners because they joined the case late in the litigation in 2006 after the trial court had
already rendered partial summary judgment orders in this case.

Proof of Easement on Surfside Beach

In their third issue, the Three Intervening Owners challenge the trial court's judgment by claiming the
State has never proven the existence of an easement on Surfside Beach. We conclude the evidence
conclusively establishes an easement by implied dedication.

A. Matters Excluded From Our Consideration

At the outset, we make two observations concerning our analysis of whether an easement exists at
Surfside Beach. First, the existence of the easement was considered an undisputed fact throughout the
first five years of the litigation, including when the partial summary judgments were granted in favor of
the State against the Original Owners. It was not until petitions in intervention were filed in the sixth year
of the litigation that a challenge was made to the existence of the easement. The Three Intervening
Owners, however, were not a part of the original litigation that had conceded the existence of the
easement, and, therefore, we address the merits of the challenge based on the motion for final
summary judgment filed after they became parties to the litigation. We have excluded from our
consideration the admissions by the Original Owners that the public has historically had a use easement
at Pedestrian Beach in Surfside. See Bowen v. Robinson, 227 S.W.3d 86, 92 (Tex. App.--Houston [1st
Dist.] 2006, pet. denied) (noting judicial admission is binding upon party making admission).

Second, the Open Beaches Act appears to be inconsistent in whether the Act itself declares the
existence of an easement on properties fronting the Gulf of Mexico or whether an easement there must
be proven to exist there under the common law. On the one hand, the Act's required notice for all
contracts for sale of property observes that "the public has acquired a right of use or easement to or
over the area of any public beach by prescription, dedication, or presumption, or has retained a right by
virtue of continuous right in the public since time immemorial, as recognized in law and custom" in all
properties that are "in close proximity to a beach fronting the Gulf of Mexico." See Tex. Nat. Res. Code
Ann. § 61.025 (emphasis added). On the other hand, the Act defines "public beach" as follows:

[A]ny beach area, whether publicly or privately owned, extending inland from the line of mean low tide to
the line of vegetation bordering on the Gulf of Mexico to which the public has acquired the right of use
or easement to or over the area by prescription, dedication, presumption, or has retained a right by
virtue of continuous right in the public since time immemorial, as recognized in law and custom.

Id. § 61.001(8); see Arrington v. Mattox, 767 S.W.2d 957, 958 (Tex. App.--Austin 1989, writ denied)
(holding Open Beaches Act does not create public beach easement where none exists). Because the
State solely relies on the common law to show an easement was historically established at Surfside
Beach, our analysis focuses on whether an easement has been proven to exist under the common law,
without relying on the part of the Open Beaches Act that states that an easement exists at this location.

B. Law for Establishing Easements By Implied Dedication

An implied dedication, under the common law, requires "the idea that the owner consented to the use of
his land . . . to the extent that the court will hold that he dedicated it to public use, whether by express
words, overt acts, or even by such inaction on the part of the owner as would justify a conclusion that he
intended to dedicate his land to public use." Owens v. Hockett, 251 S.W.2d 957, 959 (Tex. 1952). The
essential elements of implied dedication are: (1) the acts of the landowner induced the belief that the
landowner intended to dedicate the property to public use; (2) he was competent to do so; (3) the public
relied on these acts and will be served by the dedication; and (4) there was an offer and acceptance of
the dedication. Las Vegas Pecan & Cattle Co., Inc. v. Zavala County, 682 S.W.2d 254, 256-57 (Tex.
1984). "Implied dedication need not be shown by deed nor need public use b[e] shown for any particular
length of time." Seaway Co., Inc. v. Attorney Gen., 375 S.W.2d 923, 935-36 (Tex. Civ. App.--Houston
1964, writ ref'd n.r.e.). In the case of implied dedication this intent is not, or at least need not be,
manifested by an expression to that effect, but may be manifested, and usually is, by some act or
course of conduct. Id. at 936. For there to be a dedication there must be acceptance by the public. See
id. "The act of throwing open property to the public use, without any other formality, is sufficient to
establish the fact of dedication to the public; and if individuals, in consequence of this act, become
interested to have it continue so, the owner cannot resume it." Id. at 936 (citing Owens, 251 S.W.2d at
958). "It is sufficient if the record shows unequivocal acts or declarations of the land owner, dedicating
the same to public use, and where others act on the faith of such dedication, the land owner will be
estopped to deny the dedication, or make any future use of the property inconsistent with any purpose
for which the land was dedicated." Id.

C. Analysis of Evidence Establishing Implied Dedication

The State's motion for final summary judgment included a section entitled "Established Material Facts,"
which states,

For decades the public has freely and openly used the Gulf beach at Surfside. Traditionally people
have driven theirs cars onto the beach and along it, parking there and engaging in the usual beach-
related recreational activities like swimming, boating, surfing, fishing, picnicking, sunbathing, beach
combing, and relaxing. In times past, people drove all the beach in Surfside--from its southwest end at
the Freeport jetties to and through the Village's city limits to the Northeast. In 1978 the village imposed a
20 mile-per-hour speed limit on driving on the public beach defined in the ordinance as the area
between the Gulf's waters and the vegetation line. The vegetation line is customarily recognized as the
landward boundary of the public beach in Surfside.

(Footnote citations to summary judgment evidence omitted). The motion asserts that "Plaintiffs' row of
beach houses sits closer to the Gulf than any row that parallels the beach." The motion explains, "As
erosion has narrowed the beach seaward of plaintiffs' structures, the Village by ordinance has
prohibited cars from plaintiffs' stretch of the beach while preserving continued pedestrian passage and
use there."

In a section entitled "Liability as a Matter of Law," the State contends,

There are no disputed issues of fact--only disputed issues of law--as to whether Plaintiff' structures are
within the public beach easement at Surfside and thus subject to removal and penalties under the OBA.
. . . The OBA establishes a policy and a mechanism for protecting easement rights acquired by the
public through historical use of the Gulf beaches. . . . Under the facts established herein, the vegetation
line boundary of the public's easement at Surfside has moved landward of Plaintiffs' structures.

(Footnote citations to evidence and authority omitted). As part of its motion for summary judgment, the
State includes evidence establishing the existence of an easement at Surfside Beach by producing
affidavits from Karlyn Hamby and Ellis Pickett, and the deposition testimony of Albert Brannan.

The summary judgment evidence from Hamby's affidavit shows the historical use by the public of the
land adjacent to the Gulf at Surfside. Hamby was the Village's city secretary and building official. He
states he has lived in Surfside since 1989 and during that time has seen the public use the pedestrian
beach up to the line of vegetation without asking permission of the owners of the land along the beach.
Hamby also said the beach was a public beach and had been "for as long as I can remember." In his
affidavit, Hamby also states,

This car restriction finds its origins in the Village's first general traffic law, Ordinance No. 47, adopted in
1978. . . . A limited car prohibition was adopted two years later that banned driving and parking "on the
public beach lying between" Second (Starfish) and Thirteenth (Jettyview) Streets, which included the
beach seaward of Beach Drive. . . . In 1992, "by reason of the narrow width of the beach in the area,"
the Village re-designated the car-restricted area to its current stretch of beach--between Jetty View
Road on the west and Starfish Street on the east, which encompasses all the beach seaward of Beach
Drive. . . . Although car use has been restricted, the beach seaward of Beach drive--like the rest of the
beaches in Surfside--has always remained a public beach available to local citizens and visitors alike.

(Emphasis added). According to Hamby, the Owners' houses are seaward of the vegetation line at
Pedestrian Beach and interfere with the public's ability to access and use the beach, particularly at high
tide, when water's edge reaches the houses. The State also produced the affidavit of Ellis Pickett, who
stated he was familiar with the beaches in Galveston and Brazoria counties. Pickett states he had surfed
on the beach at Surfside for decades. He also reports that the public has historically used the beach up
to the vegetation line. Pickett states that when he first started visiting the beach in the 1960s, he and
members of the public drove along Surfside Beach, using it as a public road, as follows:

The Gulf of Mexico beach at Surfside lies generally in a northeast-southwest orientation. The southwest
end is at the jetties along the Freeport channel. The beach then runs northeastward for four or five
miles, where it leaves Surfside's municipal limits and runs several more miles all the way to San Luis
Pass. When I first started visiting Surfside in the 1960's, the public could drive cars onto the beach and
then drive all the way from the jetties to San Luis Pass.

When the beach was closed to vehicles in the early 1980s, Picket explains that Surfside Beach
continued to be used by the public. He states,

Then, around 1980, the Surfside municipal government closed a part of the beach to cars. This
"pedestrian" beach was that part of the Village's beach generally seaward of Beach Drive, the city street
closest to and parallel to the Gulf. Although the Village, no longer allowed car driving on the pedestrian
beach, the public could still freely walk it and otherwise use it like the rest of the beach. And the City still
permitted driving and parking on either side of this pedestrian-only segment. Despite the vehicular
restriction, I have continued to use this part of the beach, along with many others, for surfing and
passage along the beach.
. . . .

People used the Surfside beach for the typical activities--swimming, fishing, sunbathing, playing,
relaxing, beach combing, and, of course, surfing.

Picket also describes activities by the public to keep the beach clean. Pickett states that the public
"could drive or walk along the beach without seeking a beachfront owner's permission to be on it."

The State also identifies portions of Brannan's deposition testimony. Brannan at one point owned 10
beachfront lots. Brannan states that he bought his property in the 1950s and later served as mayor of
the Village. He was mayor at the time the section of beach at issue became pedestrian only. He states
he had seen people use the beach seaward of his property for recreational purposes on the beach in
Surfside "forever." Brannan's deposition testimony acknowledges that before the early 1970s,
Pedestrian Beach was open to traffic and people would drive through his 10 lots adjacent to 303 Beach
Drive.

Brannan testified in his deposition that Pedestrian Beach at Surfside is approximately one and one-half
miles long beginning at southeast of the 332 entrance, toward the jetties to about the last house that is
on the beach toward the jetties. He said that "forever" people drove on Pedestrian Beach until it was
made pedestrian.

In this appeal, the Three Intervening Owners focus solely on whether there was an easement
established on their particular property. Omitting the citation to authority, the entire argument in the
original appellate brief by the Three Intervening Owners to challenge the proof of an easement by
implied dedication, is as follows:

Nor can any public use of the land around the Property Owners' homes--permitted or not--be treated as
an implied dedication of that land. Certainly, the Property Owners have expressed no intent to dedicate
the land that is necessary to support their homes. Such an intent is explicitly denied, and the Property
Owners' defense of their homes belies any contrary claim.

This argument focuses solely on whether the Three Intervening Owners themselves dedicated their
land. However, it is undisputed that these Three Intervening Owners did not themselves dedicate their
land for public use. Other than their sole argument that they did not themselves dedicate the land for
public use, the Three Intervening Owners do not, in the original appellate brief, assert the evidence
failed to show that historically there was an easement at Pedestrian Beach extending inland from the
line of mean low tide to the line of vegetation. Furthermore, in their summary judgment response, the
Three Intervening Owners produced no evidence to dispute the evidence of an easement at Pedestrian
Beach extending inland from the line of mean low tide to the line of vegetation.

The summary judgment evidence shows that for a period of at least 40 years, the public has openly
used Pedestrian Beach where these properties are located. The evidence shows that Pedestrian Beach
"has always" and "forever" been a public beach "widely" used by the public up to the line of vegetation
without the public asking permission from any owner of the property; in the 1960s, Pedestrian Beach
was a public road in the 1960s until cars were banned there by the Village; Pedestrian Beach was used
by the public for typical activities such as swimming, fishing, sunbathing, playing, relaxing, beach
combing, surfing; and Pedestrian Beach has been kept clean by members of the public. As noted
above, the Three Intervening Owners failed to introduce any evidence concerning this issue. The
summary judgment evidence conclusively establishes the public acquired an easement by implied
dedication. See Seaway Co., Inc., 375 S.W.2d at 936 (holding dedication for public beach easement
was established by evidence that owners, beginning with original owners, threw open beach to public
use; beach remained open for over 100 years free of permanent obstructions or signs to keep public
away; owners allowed members of public generally to use beach each year without public asking
permission and without protest from land owners; county expended funds on beaches to keep debris
cleared so beach could be used by public; and patrolling of beach by law enforcement officers was
carried on openly and for such length of time owners should have known of it); see also Las Vegas
Pecan & Cattle Co., Inc., 682 S.W.2d at 256-57 (holding implied dedication was established by evidence
that road in question had been used by public generally for at least 15 years; county maintained road
for that period of time; one witness said he had used road continuously since 1911; no one had ever
asked permission, or been denied permission, of adjoining landowners to use road; there was
continuous use of road by public generally for 30 years); Villa Nova Resort, Inc. v. State, 711 S.W.2d
120, 128 (Tex. App.--Corpus Christi 1986, no writ) (holding evidence public had openly used beach
without owner protesting for over 50 years sufficient to show public acquired easement or right of use by
dedication); Moody v. White, 593 S.W.2d 372, 379 (Tex. Civ. App.--Corpus Christi 1979, no writ)
(holding evidence showed dedication because prior owner stood by and watched public use "his" beach
for many years and public use of beach by swimming, fishing, and engaging in other activities
constituted acceptance of that dedication).

We overrule the Three Intervening Owners' third issue.

Houses Must Be Removed from the Easement at Surfside Beach In their first issue, the Three
Intervening Owners contend the trial court erred by ordering houses removed and by impeding
residential uses of the houses because the rolling easement must accommodate a lawfully built,
preexisting house when it migrates landward. The State describes this suggestion by the Three
Intervening Owners as a "Swiss cheese" approach where the houses remain on the easement and the
public accesses the beach in the areas underneath the pilings of the houses and between the houses.
In short, the Owners request we reverse the trial court's order and render judgment that the Owners
need not remove houses from where they stand, even if they stand on an easement, because the
easement must accommodate the houses since the houses were preexisting and the easement rolled to
the houses.

Intermediate courts in Texas have upheld the rolling easement doctrine by finding that it is proper under
the Open Beaches Act or common law principles. The rolling easement is specifically mentioned by and
fits the intent of the Act to preserve the public beach. See Tex. Nat. Res. Code Ann. § 61.025 (notice
provision to people who purchase property in counties on Gulf of Mexico warns that "structure located
on coastal real property near a gulf coast beach . . . may come to be located on the public beach
because of coastal erosion and storm events" and states that "structures . . . that become seaward of
the vegetation line as a result of processes such as shoreline erosion are subject to a lawsuit by the
State of Texas to remove the structures"); Feinman v. State, 717 S.W.2d 106, 110-11 (Tex. App.--
Houston [1st Dist.] 1986, writ ref'd n.r.e.) (holding intent of Act, once public easement to vegetation line
exists, is to allow boundaries of easement to shift as line of mean low tide and vegetation line shift); see
also Arrington v. Tex. Gen. Land Office, 38 S.W.3d 764, 766 (Tex. App.--Houston [14th Dist.] 2001, no
pet.) (stating that "once a public beach easement is established, it is implied that the easement moves
up or back to each new vegetation line, and the State is not required to repeatedly re-establish that an
easement exists up to that new vegetation line (but only that the line has moved).") (citing Feinman, 717
S.W.2d at 108-11). Aside from the Open Beaches Act, at least one intermediate court in Texas has
upheld the rolling easement doctrine by analogizing the rolling easement to the common law principle
that allows property lines to change with submerged land. Matcha v. Mattox ex rel. the People of Tex.,
711 S.W.2d 95, 100 (Tex. App.--Austin 1986, writ ref'd n.r.e.) (stating that "because legal title shifts with
the natural movements of the beach, . . . this Court has concluded that the public easement also shifts
with the natural movements of the beach" and that "boundary line may move landward or seaward as
the beach moves, and the property lines move accordingly") (citing State v. Balli, 190 S.W.2d 71
(1944)). In permitting the rolling easement, the Austin court of appeals also focused on the historical
use of the easement, which would have necessarily fluctuated with the movement of the vegetation line.
See Matcha, 711 S.W.2d at 98-100. In explaining why the easement must roll under the common law,
the Austin court of appeals explains,

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 law cannot freeze such an
easement at one place any more than the law can freeze the beach itself. . . . An easement fixed in
place while the beach moves would result in the easement being either under water or left high and dry
inland, detached from the shore. Such easement, meant to preserve the public right to use and enjoy
the beach, would then cease functioning for that purpose.

Id. at 100.

It is important to note that, in this issue, the Three Intervening Owners specifically assume that an
easement can properly roll when the line of vegetation moves. The Three Intervening Owners do not
assert on appeal or at trial that an easement cannot roll or migrate, nor do they present any challenge
concerning whether the underlying support for the rolling easement comes from the Open Beaches Act
or from common law. (7) Therefore, they have waived the right to challenge whether an easement can
roll and whether the support for that comes from the Open Beaches Act or from common law. See Tex.
R. Civ. P. 166a(c) ("Issues not expressly presented to the trial court by written motion, answer or other
response shall not be considered on appeal as grounds for reversal."); Rayl v. Borger Econ. Dev.
Corp., 963 S.W.2d 109, 114 (Tex. App.--Amarillo 1998, no pet.) (holding that party may not appeal
summary judgment in favor of opponent when grounds opposing summary judgment asserted on appeal
were not raised before trial court); see also Malcomson Rd. Util. Dist. v. Newsom, 171 S.W.3d 257, 279
(Tex. App.--Houston [1st Dist.] 2005, pet. denied) (declining to reach challenge that was not raised in
appellant's opening brief).

In this case, the Three Intervening Owners assume that an easement may properly roll when the line of
vegetation moves. The only arguments presented by the Three Intervening Owners concerning the
rolling easement are that (A) the houses cannot be considered an encroachment under the Open
Beaches Act when the line of vegetation was originally seaward of the houses, and (B) the houses
should remain on the easement because the purpose of the easement to use the beach can be met
even if the houses remain at their location.

A. Houses Are An Encroachment Under the Open Beaches Act

The Three Intervening Owners contend 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. They assert this is a matter of first impression.

1. Law Concerning Construction of Statute

Statutory construction is a legal question that we review de novo. HCBeck, Ltd. v. Rice, 284 S.W.3d 349,
352 (Tex. 2009). In construing a statute, we must "ascertain and give effect to the Legislature's intent."
Id. We begin with the "plain and common meaning of the statute's words" to ascertain the Legislature's
intent. Id. (citing Tex. Dep't of Transp. v. City of Sunset Valley, 146 S.W.3d 637, 642 (Tex. 2004)). "We
also consider the objective the Legislature sought to achieve through the statute, as well as the
consequences of a particular construction." Id. (citing Tex. Gov't Code Ann. § 311.023(1), (5) (Vernon
2005)). The Government Code provides the following criteria to consider when interpreting a statute:

(a) object sought to be attained;

(b) circumstances under which the statute was enacted;

(c) legislative history;

(d) common law or former statutory provisions, including laws on the same or similar subjects;

(e) consequences of a particular construction;

(f) administrative construction of the statute; and

(g) title (caption), preamble, and emergency provision.

Tex. Gov't Code Ann. § 311.023.

2. Analysis of Statute

Under the Act, a public beach includes the "area extending from the line of mean low tide to the line of
vegetation . . . 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." Tex. Nat. Res. Code Ann.
§ 61.012 (Vernon 2001). For the purposes of this issue, the Three Intervening Owners concede the
public has acquired an easement or right of use to the line of vegetation.

The Three Intervening Owners argument focuses solely upon the word "encroachment." The Three
Intervening Owners assert that the common definitions for the word "encroachment" indicate that the
Act's authority to enjoin encroachments on the public easement targets the active introduction of a
structure onto an existing public easement area. For example, the Three Intervening Owners cite the
definition of "encroach" in Black's Law Dictionary. See Black's Law Dictionary 607 (9th ed. 2009)
(defining "encroach" as "To enter by gradual steps or stealth into the possessions or rights of another;
to trespass or intrude"). The Three Intervening Owners contend that by using the word "encroachment,"
the Legislature intended the Act to apply only to the active introduction of a new "improvement,
maintenance, obstruction, barrier, or other encroachment on a public beach."

The plain language of the statute contradicts this position. The Act gives the attorney general the power
to file a suit "to remove or prevent any improvement, maintenance, obstruction, barrier, or other
encroachment on a public beach." Tex. Nat. Res. Code Ann. § 61.018(a). The Act provides "any"
improvement, maintenance, barrier, obstruction or other encroachment is subject to removal. Id. The Act
also provides a county attorney, a district attorney, or the attorney general shall file a suit "to prohibit
any unlawful restraint on the public's right of . . . use of a public beach." Id. (emphasis added). The plain
language of the Act, therefore, requires the removal of obstructions, barriers, and encroachments
whether or not they existed when the easement first applied to the property.

In examining a statute, in addition to the plain language, we consider the seven criteria in the
Government Code listed above.

a. The Objective of the Legislature

The Act provides, "The commissioner shall strictly and vigorously enforce the prohibition against
encroachments on and interferences with the public beach easement." Tex. Nat. Res. Code Ann. §
61.011(c) (Vernon Supp. 2009). As noted below, the caption refers to "affirming and protecting" the
rights of the public to use the public beach easement. The object sought to be attained, as expressed in
the language and the caption of the Act, is the public's right to use the public beach easement.

b. The Circumstances Under Which Act Was Enacted

The Open Beaches Act was passed in response to the Texas Supreme Court's decision in Luttes v.
State, 324 S.W.2d 167 (Tex. 1958), to protect the public's rights of access to and use of public
beaches. See Tex. Nat. Res. Code Ann. § 61.011(a) (stating policy of Act). In Luttes, the supreme court
held that the common-law boundary line between State-owned submerged lands and privately owned
property on the beach is the "mean higher high tide line" under Spanish or Mexican law grants, and the
"mean high tide" under Anglo-American law. Luttes, 324 S.W.2d at 191-93; Feinman, 717 S.W.2d at
110. Luttes confirmed State ownership of the "wet beach"--the area between the mean low and mean
high tide lines. See Luttes, 324 S.W.2d at 191-93; see also Feinman, 717 S.W.2d at 110. "The division
between public and private ownership under the common law, which governs Texas grants after 1840, is
the mean high tide line." Feinman, 717 S.W.2d at 110 (citing Luttes, 324 S.W.2d at 191-93). The "dry
beach," or the area from either the mean higher high tide line or the mean high tide line to the line of
vegetation, belongs to the private property owners. See Luttes, 324 S.W.2d at 191-93. However, prior to
Luttes, it was thought that the State owned both the wet and dry beaches. Neal Pirkle, Maintaining
Public Access to Texas Coastal Beaches the Past and the Future, 46 Baylor L. Rev. 1093, 1093-94
(1994). The circumstances under which the Open Beaches Act was enacted show that it was passed to
protect the public's rights of access to and use of public beaches when title to the land belongs to
private owners.

c. The Legislative History

We note again that the Open Beaches Act was passed in response to the Texas Supreme Court's
decision in Luttes, to protect the public's rights of access to and use of public beaches. See Tex. Nat.
Res. Code Ann. § 61.011(a) (stating policy of the Act).

d. Common-law or Former Statutory Provisions

As we explain in more detail below, the application of the common law pertaining to easements results in
the conclusion that the houses here must be removed from the easement.

e. Consequences of a Particular Construction

The Owners' interpretation of the Act would defeat the purpose expressed in the plain language of the
Act and, as noted below, in the caption. If the State could not protect the right of the public when an
easement rolled to existing structures, the public would soon lose the right to access the beach because
forces of nature continually change the shoreline. See Feinman, 717 S.W.2d at 111 (noting that if
boundaries and easement did not "roll" with changes to shoreline, it "would greatly diminish the public's
easement" and "defeat the purposes of the Act").

f. Administrative Construction of the Act

The General Land Office has adopted a rule "to provide authority for local governments to issue permits
or certificates for repairs to certain houses if any portion of the house is located seaward of the
boundary of the public beach." 31 Tex. Admin. Code § 15.11(a) (2006) (Gen. Land Office, Coastal Area
Planning). A house is eligible for such a permit if, among other requirements, "[t]he line of vegetation
establishing the boundary of the public beach has moved as a result of erosion or a meteorological
event," and "[t]he house was located landward of the natural line of vegetation before the erosion or
meteorological event occurred." Id. § 15.11(c)(1), (2). The rule does not expressly state existing
improvements are subject to removal. However, this follows from the language of the rule. To be eligible
for repairs, the house must have been landward of the vegetation line until a meteorological event
moved the vegetation line. Id. If rolling of the vegetation line and the easement's boundary does not
apply to existing homes, the General Land Office would have no reason to adopt such a rule.

g. The Caption

The caption for the Open Beaches Act states, in pertinent part,

An Act affirming and protecting the right of the public use of certain state-owned beaches or such larger
area extending from the line of mean low tide to the line of vegetation, in the event the public has
acquired a right of use or easement to or over such area by prescription, dedication, or has retained a
right by virtue of a continuous right in the public bordering on the seaward shore of the Gulf of Mexico;
affirming and protecting rights of the public to beaches upon which the public has acquired a
prescriptive right . . . .

Act of July 16, 1959, 56th Leg., 2nd C.S., ch. 19, 1959 Tex. Gen. Laws 108. The caption mentions
"protecting" the public's right of use of the easement.

In summary, our analysis of the Act and the matters pertinent to determining the Legislature's intent
leads to the conclusion that the Act applies to anything that interferes with the public's right to use the
easement. This is so whether an owner of a property actively introduces an "improvement, maintenance,
obstruction, barrier, or other encroachment" on to a public beach or whether the easement rolls to a
portion of the property that had before not been located on the easement. We hold that the Open
Beaches Act requires that the Three Intervening Owners' houses be removed from the easement.

B. Houses Impede Public's Use of Easement Under Common Law

The Three Intervening Owners contend their houses cannot be removed by the State because they can
co-exist with the purpose of the easement under the common law. They assert the public, as holder of
the beach easement, may make use of the land for beach recreational purposes because the elevated
houses do not substantially interfere with the public's use of the beach for access and recreation. In this
section of our analysis, we do not consider the Open Beaches Act's definition of "public beach" that
refers to the word "encroachment," but instead focus solely on what the common law requirements for
an easement are. Because the Three Intervening Owners did not challenge the matter of whether an
easement may roll, we have assumed that the easement may roll under both the Open Beaches Act and
the common law, as previously held by several intermediate court decisions. See Feinman, 717 S.W.2d
at 110-11; Arrington, 38 S.W.3d at 766; Matcha, 711 S.W.2d at 100.

An easement does not convey title to property. Stephen F. Austin State Univ. v. Flynn, 228 S.W.3d 653,
658 (Tex. 2007). Under Texas property law concerning easements, the owners of land subject to an
easement remain the title holders of the land. See Brownlow v. State, 251 S.W.3d 756, 760-61 (Tex.
App.--Houston [14th Dist.] 2008, pet. filed) (fee owner who grants easement retains title to land) (citing
Brunson v. State, 418 S.W.2d 504, 506 (Tex. 1967)). An easement is a non-possessory property
interest that authorizes its holder to use the property of another for a particular purpose. Id. (citing
Marcus Cable Assoc. v. Krohn, 90 S.W.3d 697, 700 (Tex. 2002)). The user of the easement is the
dominant estate owner and the land burdened by the easement is the servient estate. See Drye v.
Eagle Rock Ranch, Inc., 364 S.W.2d 196, 207 (Tex. 1963). "The owner of the servient estate [the land
owner] simply may not interfere with the right of the owner of the dominant estate [the user of the
easement] to use the servient estate for the purpose of the easement." Vrazel v. Skrabanek, 725 S.W.
2d 709, 711 (Tex. 1987) (quoting Drye, 364 S.W.2d at 207); see also Voice of Cornerstone Church
Corp. v. Pizza Prop. Partners, 160 S.W.3d 657, 666 (Tex. App.--Austin 2005, no pet.); Taylor Foundry
Co. v. Wichita Falls Grain Co., 51 S.W.3d 766, 770 (Tex. App.--Fort Worth 2001, no pet.) ("Any use by
the servient estate holder that interferes with the exercise of the dominant estate holder's rights must
yield."). "A grant or reservation of an easement in general terms implies a grant of unlimited reasonable
use such as is reasonably necessary and convenient and as little burdensome as possible to the
servient owner." Coleman v. Forister, 514 S.W.2d 899, 903 (Tex. 1974). "At common law, a fee owner
may not interfere with an easement holder's reasonable use and enjoyment of the easement." Still v.
Eastman Chem. Co., 170 S.W.3d 851, 854-55 (Tex. App.--Texarkana 2005, no pet.).

Courts must examine the scope of the easement to determine whether the purpose sought is within that
scope. See Krohn v. Marcus Cable Associates, L.P., 43 S.W.3d 577, 581 (Tex. App.--Waco 2001), aff'd,
90 S.W.3d 697 (Tex. 2002) ("To so construe the statute [to allow a use outside the scope of the
easement] would be to burden the servient estates to an extent greater than the original grant. This
added burden would constitute a taking . . ."); see also McCammon & Lang Lumber Co. v. Trinity & B.V.
Ry. Co., 133 S.W. 247, 249 (Tex. 1911) (dedication of land for street does not authorize use of street
for purposes of commercial railroads without further compensation); Tex. Parks and Wildlife Dep't v.
Callaway, 971 S.W.2d 145, 150-51 (Tex. App.--Austin 1998, no pet.) (takings claims stated by allegation
that government expanded scope of existing easement in opening up private property to public boating).
The beach easement takes from the owner only those rights which are essential and necessary to the
public's enjoyment of its easement. See Lakeside Launches, Inc. v. Austin Yacht Club, Inc., 750 S.W.2d
868, 871 (Tex. App. 1988) (limiting impact of easement on burdened land to specifically allowed,
affirmative right to access).

The undisputed evidence shows the public used the land seaward of the vegetation line for recreation,
such as swimming and beach combing, and for passage, using it as a road until Village ordinances
prohibited driving on that section of beach. Under the law concerning easements, therefore, the Three
Intervening Owners may not interfere with the public's right to use the easement for the purposes of
recreation, such as swimming and beach combing, and for passage. See Vrazel, 725 S.W.2d at 711.
Although they cite to the 1999 Attorney General letter declaring that the houses did not significantly
block beach access after migration of the vegetation line to the landward side, this letter was issued
before the bull tide and Hurricane Ike struck Surfside Beach. Furthermore, as described above, the
easement at Pedestrian Beach was for vehicular travel until the road was closed to vehicles, and then
the easement was for pedestrian travel, access, and use of the land between the mean low tide and the
line of vegetation. Evidence shows that the houses that remain at Pedestrian Beach cause the public to
be unable to use the land between the mean low tide line and the line of vegetation, particularly at high
tide. For example, according to Hamby's affidavit, "Presently there are times when, especially at high
tide, there is no dry beach seaward of the houses, even for pedestrian beach-goers, much less for the
use of emergency and service vehicles operated by the Village." Pickett's affidavit observes that "[n]ow
the dry beach at this location--formerly obstruction free and fully available for public travel and
recreation--is situated underneath numerous private houses . . . . This situation has shrunk the amount
of useable beach seaward of Beach Drive." The evidence conclusively establishes that the area from
the line of mean low tide to the line of vegetation, which had formerly been an unobstructed roadway for
vehicles and pedestrian travel, cannot now be used for unobstructed pedestrian travel or emergency
vehicles. Although the public can access the easement in the pockets of land underneath and between
the houses for beach activities such as swimming, this access is unlike and inferior to the access
historically given to the public at Surfside Beach, which included use as an unobstructed road for travel,
and complete, unobstructed access to the approximately mile-and-a-half stretch of beach at Pedestrian
Beach for pedestrian travel, beach combing, swimming, and other beach-related activities. We hold that
under the common law the houses must be removed from the easement. See Vrazel, 725 S.W.2d at
711; see also Still, 170 S.W.3d at 854-55; Taylor Foundry Co., 51 S.W.3d at 770.

C. Reason for Addressing Rolling Easement Under Open Beaches Act and Common Law

We have addressed the Three Intervening Owners' challenges that reference the Open Beaches Act
and common law. As noted above, the Open Beaches Act gives the attorney general the power to file a
suit "to remove or prevent any improvement, maintenance, obstruction, barrier, or other encroachment
on a public beach." Tex. Nat. Res. Code Ann. § 61.018(a) (Vernon 2001). But, also as shown above,
this is phrased differently from the common law easement requirement that the scope of the easement
be limited to what is essential and necessary to the public's enjoyment of its easement. See Lakeside
Launches, Inc., 750 S.W.2d at 871. Although the two vary in their phrasing, the Open Beaches Act
appears to codify the Legislature's assessment that an unobstructed beach is essential and necessary
to the public's enjoyment of its use of the beach easement. We need not determine whether this will
always be the case in every beach easement litigation because, here, as explained above, the record
shows the houses interfere with the public's right to use the easement in violation of both the Open
Beaches Act and common law.

We overrule the Three Intervening Owners' first issue.

Enforcement of Easement is Not A Taking

In their second and fourth issues, the Owners challenge the trial court's rulings concerning their takings
claims. Specifically, the Owners assert claims for regulatory takings based on the premise that the State
and Village deprived them of the use of their properties by denying access to and utilities for the
properties for the period of time starting when the actions of the State and Village deprived them of the
use of their properties until the time either when their houses were destroyed by the force of nature or
their houses will be destroyed due to the trial court's injunction. The Three Intervening Owners
challenge the trial court's refusal to award damages for the physical taking of their houses due to the
trial court's injunction ordering the removal of their houses. (8)

A. Applicable Law Concerning Taking of Property

The Texas Constitution provides, "No person's property shall be taken, damaged or destroyed for or
applied to public use without adequate compensation being made, unless by the consent of such
person . . . ." Tex. Const. art. I, § 17. To prevail on a takings claim, "the landowner must show that (1)
the State intentionally performed certain acts in the exercise of its lawful authority (2) that resulted in a
'taking' of property (3) for public use." Villarreal v. Harris County, 226 S.W.3d 537, 542 (Tex. App.--
Houston [1st Dist.] 2006, no pet.). A compensable "regulatory taking" occurs "where regulation denies
all economically beneficial or productive use of land." Sheffield Dev. Co., Inc. v. City of Glenn Heights,
140 S.W.3d 660, 671 (Tex. 2004) (quoting Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1017-19, 112
S. Ct. 2886, 2893 (1992)). "A physical taking may occur when the government physically appropriates
or invades private property, or unreasonably interferes with the landowner's right to use and enjoy it."
Porretto v. Patterson, 251 S.W.3d 701, 707 (Tex. App.--Houston [1st Dist.] 2007, no pet.) (citing Tarrant
Reg'l Water Dist. v. Gragg, 151 S.W.3d 546, 554 (Tex. 2004)).

"Although the Texas constitution's adequate compensation provision is worded differently than the just
compensation clause of the Fifth Amendment to the United States Constitution, the Texas Supreme
Court has described them as comparable and generally looks to federal cases for guidance in takings
cases." City of Sherman v. Wayne, 266 S.W.3d 34, 42-43 (Tex. App.--Dallas 2008, no pet.) (citing
Sheffield, 140 S.W.3d at 669).

There is a difference between a taking and a limitation upon property use based upon "background
principles" of state property law. Lucas, 505 U.S. at 1030, 112 S. Ct. at 2901. The Supreme Court held
Lucas would not be entitled to damages if the State of South Carolina could "identify background
principles of . . . property law that prohibit the uses [Lucas] now intends in the circumstances in which
the property is presently found." Id. at 1031, 112 S. Ct. at 2901-02. The Supreme Court explained,
"Where the State seeks to sustain regulation that deprives land of all economically beneficial use, we
think it may resist compensation only if the logically antecedent inquiry into the nature of the owner's
estate shows that the proscribed use interests were not part of his title to begin with." Id. at 1027, 112 S.
Ct. at 2899. The Supreme Court went on to note, "[W]e have refused to allow the government to decree
it [a taking] anew (without compensation), no matter how weighty the asserted 'public interests' involved--
though we assuredly would permit the government to assert a permanent easement that was a pre-
existing limitation upon the land owner's title." Id. at 1028-29, 112 S. Ct. at 2900 (emphasis in original,
internal citation omitted). Similarly, the Austin court explains that there is a "fundamental distinction
between a governmental taking of an easement through an act of sovereignty and judicial recognition of
a common law easement acquired through historical public use." Arrington, 767 S.W.2d at 958.

This Court, the Austin court of appeals, and the Corpus Christi court of appeals have rejected claims
that the Open Beaches Act results in a taking of private property without just compensation. See
Arrington, 767 S.W.2d at 959 (holding trial court properly denied damages based on claim that property
was taken under Open Beaches Act); Moody, 593 S.W.2d at 379-80 (following Seaway in holding Open
Beaches Act is not taking of property without compensation because public acquired right to use beach
and right was not taken by State); Seaway, 375 S.W.2d at 930 (holding Open Beaches Act does not
take rights from owner of land because rights to easement that are being enforced are acquired by
reason of dedication, prescription, or continuous right); Matcha, 711 S.W.2d at 101 (overruling takings
claim because "the public acquired the complained-of-easement not by virtue of the Open Beaches Act,
but instead through prescription, dedication, and custom").

B. Analysis

In the preceding portions of this opinion, we have already determined that

* •the Open Beaches Act protects the public's free and unrestricted right to use the larger area
extending from the line of mean low tide to the line of vegetation if the public acquires that right through
prescription, dedication, or custom;

* •in this appeal, it is undisputed that under the common law and the Open Beaches Act the easement
"rolls" or moves with the shifting of the line of mean low tide and the line of vegetation;

* •the evidence conclusively shows that there is an easement by implied dedication on these properties
because the public has historically used the beach in the area where these properties are located;

* •the Open Beaches Act requires the removal of the houses because it applies to anything that
interferes with the public's right to use the easement, which occurred here when the easement rolled to
the houses; and

* •common law requires the removal of the houses because their presence interferes with the use
historically given to the public at Pedestrian Beach, which included its use as an unobstructed road for
travel, swimming, beach combing, and other beach related activities.

These points show that we have already determined that, because the easement rolled to the houses,
the houses that sit on the easement now interfere with the public's use of the easement--the area
extending from the line of mean low tide to the line of vegetation--that was historically dedicated for the
public's use.

The specific question we answer today, which has not previously been addressed by this Court or
another court of appeals of this State, is whether a taking occurs when an easement rolls to a house
that was not initially on the easement. Although this specific question is a matter of first impression,
Texas courts of appeals have consistently held that removal of a structure or obstruction from the public
easement under the Open Beaches Act is not a taking because the Act does not create an easement,
but provides a method of enforcing an easement acquired by other means. See Seaway, 375 S.W.2d at
930; see also Arrington, 767 S.W.2d at 958; Moody, 593 S.W.2d at 379-80. The only difference
between those cases and this case is that here this Court is asked to specifically address the situation
where the easement rolled to houses that were not initially on the easement. But that difference does
not compel a different result because the pertinent inquiry focuses on whether the area extending from
the line of mean low tide to the line of vegetation was historically dedicated for the public's use. If the
area extending from the line of mean low tide to the line of vegetation was historically dedicated for the
public's use, as here, then that land is subject to the easement because of the historical dedication.
There is no taking of that land by the government because it was the force of nature that placed these
houses on the area extending from the line of mean low tide to the line of vegetation, which was the
property that was historically dedicated for the public's use. See Seaway, 375 S.W.2d at 930; see also
Arrington, 767 S.W.2d at 958; Moody, 593 S.W.2d at 379-80. We hold the easement that rolled to the
houses located on these properties does not constitute a taking, either under common law or under the
Open Beaches Act because the public's easement was established by dedication under the common
law. See Seaway, 375 S.W.2d at 930; see also Arrington, 767 S.W.2d at 958; Moody, 593 S.W.2d at
379-80. This restriction on the Three Intervening Owners' use of their property is part of the background
principles of Texas law and, therefore, does not constitute a taking under Lucas. See Lucas, 505 U.S. at
1028-29, 112 S. Ct. at 2900 (stating enforcement of existing easement is not new taking entitled to
compensation).

We agree with the Austin court of appeals that Nollan v. California Coastal Commission is
distinguishable. As the Austin court explains,

Appellants claim Nollan v. California Coastal Commission, 483 U.S. 825, 107 S. Ct. 3141, 97 L. Ed.2d
677 (1987), establishes that the judgment in this case is an unconstitutional taking. The Nollans were
refused a permit to build a new house on their beachfront property in California unless they granted an
easement to the public on the land between the historic mean high tide mark which bounded their
property and their seawall. The United States Supreme Court found that this scheme constituted a
taking and ordered that the Nollans be compensated. The California Coastal Commission sought to
establish an easement across land belonging to the Nollans in exchange for the permit where no
easement had previously existed, unlike the present case, where the court merely enforced an already
existing public easement established by custom, prescription, or public dedication.

Arrington, 767 S.W.2d at 958.

The bottom line here is that the easement applies to the Owners' land seaward of the vegetation line
because that land was historically dedicated for the public's use. Although the Three Intervening
Owners' houses were not initially part of this easement due to the fact that their houses were landward
of the vegetation line, the force of nature has caused their houses to become part of this easement now
that their houses are seaward of the vegetation line. This is not a governmental taking because the
government did not create the easement that exists seaward of the vegetation line; rather, the historical
dedication of the land seaward of the vegetation line created the easement. The act of nature moved
the line of vegetation landward of where the houses were located; this was not the act of the
government. By enforcing the easement, the government is not taking the Owners' property but instead
enforcing the easement on the land seaward of the vegetation line that was historically dedicated to the
public.

We conclude the enforcement of the public's existing easement is not a taking of property without just
compensation under the common law and under the Open Beaches Act, which here acts as a
codification of the common law. We hold the trial court properly denied the Owners' claims for damages
based on the claim that the State and Village deprived them of all use of their property by denying
access to and utilities for the property. We also hold the Three Intervening Owners are not entitled to
damages for the removal of their houses.

We overrule the second and fourth issues.  

Conclusion

We deny the Owners' motion for rehearing. We dismiss the appeal for lack of jurisdiction for all of the
claims concerning the injunction to remove houses and claims for damages from any removal of those
houses for the 11 Owners whose houses have been removed from the easement by the force of nature.
Except for those claims, we affirm the judgment of the trial court. All other pending motions are denied
as moot.

Elsa Alcala

Justice

Panel consists of Chief Justice Radack and Justices Alcala and Hanks.

1. See Tex. Nat. Res. Code Ann. §§ 61.001-.254 (Vernon 2001 & Supp. 2009).

2. See Tex. Nat. Res. Code Ann. § 61.018 (Vernon Supp. 2009).

3. See Tex. Nat. Res. Code Ann. § 61.0185 (Vernon Supp. 2009).

4. See Tex. Nat. Res. Code Ann. §§ 61.025 (Vernon Supp. 2009).

5. At around the same time, similar petitions for intervention were filed by Reg and Beaver Aplin, Judy Clinton; Joseph
DeWitt and Lisa DeWitt Fuka; Marvin Jacobson Family Holding; Charles, Cathy, James and Patricia Meek; James and
Patricia Pursley; Kenneth and Andrea Reutzel; Roger Thomson, executor of the estate of P.E. Kintz, S&S Holdings, Jeffrey
Dyment, and Marc Palmer. Some of these intervenors purchased their property with contracts that included the notice
provision under section 61.025 of the Texas Natural Resources Code warning that a structure that becomes seaward of
the vegetation line as a result of natural processes may be removed. See id. Some of the intervenors, however, became
owners of their property before the notice was a requirement for contracts in this area.

6. See Tex. Nat. Res. Code Ann. § 61.018(c) (Vernon Supp. 2009).

7. Although the Owners in this appeal have waived any challenge to the legal doctrine allowing a rolling easement, we
observe that the Supreme Court of Texas heard oral arguments whether an easement may roll to land when the line of
vegetation moves to land not originally part of the easement. See Severance v. Patterson, No. 09-0387. Severance is a
certified question from the United States Fifth Circuit Court of Appeals that asks whether Texas recognizes a rolling
public beachfront access easement; if so, whether the rolling easement is derived from common law doctrines or from a
construction of the Open Beaches Act; and whether a landowner would be entitled to receive compensation for
limitations on the use of his property affected by the landward migration of a rolling easement onto property on which no
public easement has been found. See Severance v. Patterson, 566 F.3d 490, 503-04 (5th Cir. 2009). Two of the
Severance certified questions, which ask whether an easement may roll and whether that rolling of the easement is
premised on the Open Beaches Act or common law, are not pertinent to this appeal because the Three Intervening
Owners have not made that argument in this case, and any challenge on those grounds is, therefore, waived. See Tex.
R. Civ. P. 166a(c); Rayl v. Borger Econ. Dev. Corp., 963 S.W.2d 109, 114 (Tex. App.--Amarillo 1998, no pet.); see also
Malcomson Rd. Util. Dist. v. Newsom, 171 S.W.3d 257, 279 (Tex. App.--Houston [1st Dist.] 2005, pet. denied).

8. We note that this issue is similar to the third certified question in Severance, currently before the Supreme Court of
Texas, asking whether a landowner would be entitled to receive compensation for limitations on the use of his property
affected by the landward migration of a rolling easement onto property. See Severance, 566 F.3d at 503-04. The United
States Fifth Circuit Court of Appeals asks in Severance if there is a taking if the rolling easement is founded solely on the
Open Beaches Act or solely on common law. See id. at 502-03 ("The Texas Supreme Court might conclude that . . . any
significant shift in the rolling easement's boundary due to a natural shoreline movement must be accompanied by
compensation of the landowner; or . . . [that] Texas recognizes a rolling easement and its enforcement as provided in the
OBA, but no landowner compensation is required."). Although the Supreme Court of Texas' decision in Severance would
likely be helpful in our resolution of the second and fourth issues in this appeal, the Three Intervening Owners ask that
we not delay our decision in this case because 11 of the 14 Owners have lost their houses due to the force of nature,
and delay in the legal resolution of this case could cause the three remaining houses to also fall for that reason, which
would make the injunction portion of the appeal moot. We, therefore, proceed with resolution of this appeal, while
recognizing that a similar question is currently before the Texas Supreme Court.