## Facts

- Carol Severance bought beachfront property on West Galveston Island’s West Beach on the Texas Gulf Coast.
- When she purchased, she received an Open Beaches Act (OBA) notice warning that natural shoreline change could move the line separating public beach from private upland.
- In Texas, the high-water mark is the dividing line: land seaward of it is public beach, while land landward of it is private upland (absent a proven easement).
- At the time of purchase, there was no established public beach-access easement on Severance’s tract.
- A public access easement existed on the tract between Severance’s property and the then-existing public beach (a neighboring parcel often described as “Property B”), and the high-water mark lay seaward of that neighboring parcel.
- A hurricane later caused a major avulsive event—sudden, observable coastal change—producing severe erosion.
- After the storm, the neighboring parcel became submerged and the high-water mark moved landward, placing part of Severance’s property (including her house) seaward of the new high-water mark.
- Texas officials notified Severance that she had to remove her house to protect public beach access, on the theory that the prior easement on the now-submerged neighboring parcel had shifted onto Severance’s land.
- Severance sued, alleging that enforcing a newly applied easement on previously unburdened private property amounted to an unconstitutional taking and that any public easement did not shift landward after an avulsive event.
- The federal district court dismissed her suit, accepting the “rolling easement” theory; the Fifth Circuit certified questions to the Texas Supreme Court on whether Texas law recognizes a rolling public beach easement.

## Issues

1. Whether Texas law recognizes a public beach-access easement that automatically moves landward after an avulsive event so that it burdens private land that previously had no public easement.
2. Whether the Texas Open Beaches Act creates such a landward-moving easement by statute, or instead assumes an easement must be established through other doctrines.
3. Whether Texas law treats the dry-sand area of West Galveston’s West Beach as subject to a continuing public right of use without proof of an easement.

## Decision

- Texas law does not treat West Beach dry sand as subject to a continuing public right of use merely because of history or the OBA; private title is not subject to that kind of blanket public-use burden.
- The OBA does not create public beach easements; it supplies procedures and remedies to enforce easements that the public has acquired through recognized means.
- Public beach easements, when proven and described by natural markers, may shift with gradual shoreline movement (erosion or accretion).
- A proven easement does not “roll” landward onto new, previously unencumbered private land as a result of avulsion (a sudden storm-driven change).
- If public access is sought on land landward of a pre-storm easement location after avulsion, a new easement must be established under traditional doctrines such as prescription, dedication, or customary use, as recognized in Texas law and referenced in the OBA.

## Legal Principles

- The OBA presumes a preexisting public right (an easement acquired by prescription, dedication, or customary use) and provides enforcement mechanisms; it does not, by itself, impose a public easement on private dry beach.
- The high-water mark sets the public–private boundary along the coast; land seaward of that mark is public beach, while land landward is private unless an easement is proven.
- Easements tied to natural boundaries can shift with gradual and imperceptible coastal change because the boundary itself shifts.
- Avulsion—sudden, perceptible shoreline change—does not, by itself, relocate an easement onto different land that was not previously burdened.
- A new servitude on private land generally requires proof of creation under ordinary property doctrines; it is not presumed from coastal change alone.

## Conclusion

The Texas Supreme Court answered the Fifth Circuit’s certified questions by rejecting a storm-driven, automatic landward shift of a public beach-access easement onto Severance’s previously unburdened property: while a proven easement may move with gradual erosion, avulsion does not carry an easement onto new private land, and the OBA functions as an enforcement statute rather than a source of newly imposed beachfront easements.


Severance v. Patterson, 345 S.W.3d 18 (2010)