
Opinion issued February 4, 2010










 

In The
Court of Appeals
For The
First District of Texas
____________

NO. 01-08-00179-CV
____________

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, Appellants

V.

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, Appellees



On Appeal from the 239th District Court
Brazoria County, Texas
Trial Court Cause No. 15802



 
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.


