Posted by: Patricia Salkin | July 28, 2009

“Rolling” Beach Access Easement May Violate Fourth Amendment

The 5th U.S. Circuit Court of Appeals ruled that a beachfront landowner may have a cause of action under the Fourth Amendment for an unreasonable seizure of her property, separate and apart from a Fifth Amendment takings claim, arising from the state’s imposition of a “rolling” beach access easement on the property  Because it considered Texas law on access easements to be unsettled, the court certified the following question to the Texas Supreme Court: Does Texas recognize a rolling access easement in favor of the public for beaches, which migrates according to naturally caused changes in the location of the vegetation line, without proof of prescription, dedication or customary rights in the property? Oral arguments before the Texas Supreme Court are scheduled for November 2009.

In April 2005, Carol Severance bought two beachfront houses on West Galveston Island, which she rents out. At the time, the properties were not subject to any beach access easement by the usual common-law means. Erosion caused by Hurricane Rita in September 2005 shifted the line of vegetation landward, leaving much of Severance’s properties, including both the houses, located on the dry portion of the beach, on which the state claims to have an access easement under the Texas Open Beaches Act (OBA). The Texas Land Office informed Severance in 2006 that her houses were subject to a removal order at any time. It offered her $40,000 in relocation assistance, which she rejected.  Severance sued in federal court for declaratory and injunctive relief, claiming the state’s enforcement of the rolling easement would be an illegal seizure under the Fourth Amendment and an uncompensated taking under the Fifth Amendment. The trial court dismissed her claims.

The appeals court began its analysis by reviewing Texas property law as it applies to coastal areas. In 1958, the Texas Supreme Court held the state owned only the coastal land seaward of the mean high tide line (the “wet beach”). In response the legislature enacted the OBA, which provides that if the public has acquired a right of use or easement to or over an area by prescription, dedication or continuous public right, it has an unrestricted right of access to the larger area extending from the mean low tide line to the vegetation line bordering on the Gulf. In other words, the right of access covers both the wet beach and the dry beach, the court said.  Although the OBA does not specifically consider the effect of erosion on the boundaries of the public easement, the state courts have held that once an easement is established, its boundary shifts with changes in the vegetation line and the mean low tide line. Under the “rolling easement” doctrine, the state does not have to establish a new easement as the shoreline migrates landward, the court observed.

On the Fifth Amendment takings claim, the state argued Severance’s claim was unripe because she has not sought compensation in state court. She countered that any state procedure was inadequate because the state’s courts have uniformly held no taking results when the state concludes a beach access easement has rolled over private property. However, the court noted, the state supreme court has not yet considered whether a rolling easement is consistent with state law or whether compensation is due when the easement moves onto previously unencumbered property. It acknowledged three intermediate appellate decisions have ruled a rolling easement does not constitute a taking, but offer little analysis of the issue.  Because state law concerning rolling easements and their takings consequences remains unsettled, the state supreme court might award relief to Severance under the facts she alleges, the court said. Therefore, the court agreed with the state that her federal takings claim was premature.  On the other hand, Severance’s Fourth Amendment seizure claim is ripe, the court said. The state has taken a final position that the landward movement of the vegetation line burdens her property with a public access easement without the need to prove common-law prescription, dedication or customary right, and without any provision for compensation. Enforcement of the easement has a direct and immediate impact on Severance, because she may not lawfully exclude the public from her land.

The court rejected the state’s claim that Severance’s Fourth Amendment claim was completely subsumed by her takings claim. The U.S. Supreme Court has ruled that interference with property rights may breach more than one provision of the Constitution. The 4th U.S. Circuit Court of Appeals specifically ruled that separate claims for unreasonable seizure and taking of property may coexist, in Presley v. City of Charlottesville, 464 F.3d 480 (2006). Severance has asserted the elements of a Fourth Amendment claim: meaningful interference with her possessory interests; which is unreasonable because it is unjustified under state law. Not only has the state appropriated an easement over Severance’s land, it denies it owes her any compensation, the court said.

Unfortunately, the court continued, Texas case law does not offer a consistent rationale for creating or sustaining a rolling easement. The state supreme court had several possible alternatives: It might conclude that Texas law does not recognize a rolling easement; such an easement cannot displace structures put on the land before the boundary shifted; any significant shift in the boundary is compensable; or Texas recognizes a rolling easement and no compensation is required.  Consequently, prudence dictated referring these important questions of state property law underlying the seizure claim to the Texas Supreme Court.

Severance v. Patterson, 566 F.3d 490 (5th Cir. (TX) 4/23/2009)

The opinion can be accessed at:

Special thanks to James Lawlor for this abstract from Vol. 3, No. 10 Land Use Legal Report.  For information about the LULR contact James at


  1. Would like to learn why the town of Bethany Beach Delaware, who enjoys federal dollars to maintain and replenish the beach, has the right to restrict access to the beach by requiring parking passes, which are only available to residents. The ticket is $75 and there is nowhere to park unless you are a resident. Seems like a tremendous injustice and would like to know if a case can be made to either provide reasonable access via public parking; or, elimination of federal dollars to maintain the beach.

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