ELR Citation: ELR 20644
No(s). H-88-2359 (S.D. Tex. Sep 17, 1991)

The court holds that a state-imposed public easement over private beachfront property is not a compensable taking, and the risk that some property would be lost to the sea was assumed at purchase. After hurricane Alicia in 1983 and the storm tides in 1988, the private beach properties were left partially or completely seaward of the line of vegetation and were subject to the public's beach easement. The court first holds that a state beachfront act merely codified the public's common law right to use dry beaches, and by adopting the act, the state did not create an easement that the public did not already own at common law. The court holds that judicial recognition of the public beach easement is not an unconstitutional taking. The court holds that the public beach easement is not fixed and moves as the shore erodes and accretes. The beach widens and narrows with daily fluctuations of the tides, currents, wind, and storms. The court concludes that when purchasers buy beachfront property, they assume the risks and benefits from the shoreline moving seaward or landward. If the private owners lose some or all of their property to the sea, their loss is not fairly described as a public consumption. The court observes that a material enlargement of the public's existing common law right to use beaches would be a taking without compensation. The court holds that the state cannot force the owners to remove structures that existed when the line of vegetation passed landward of them, enlarging or at least shifting the easement. The court holds that structures that have contributed to the loss of shore do not amount to an unconstitutional appropriation to public use or direct condemnation.

Counsel for Plaintiffs
Karen A. Lerner
2110 Richmond Ave., Houston TX 77015
(713) 526-1630

Counsel for Defendant
Brian J. Zwit
Attorney General's Office
P.O. Box 12548, Capitol Station, Austin TX 78711
(512) 463-2100