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Brannan v. State

Forces of nature caused homeowners? land to become part of a pre-existing easement. The court of appeals held that the government's enforcement of the existing easement under the Open Beaches Act of the Texas Natural Resources Code �61.011(a) is not a taking because the government did not create the easement but is merely enforcing an easement on land historically dedicated to the public. Houston Court of Appeals, No. 01-08-00179-CV, 08-28-2009

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OPINION

This appeal concerns the Open Beaches Act.*fn1 Appellants, Angela Mae Brannan, Individually and as Independent Executrix of the Estate of Bob Albert Brannan, deceased, Brooks Porter and Mary Porter, Russell and Judy Clinton, Russell Clinton as Independent Executor of the Estate of Elizabeth Clinton, deceased, Reg Aplin and Beaver Aplin, Partners d/b/a Benchmark Developing, Louise Bullard, Diane Loggins Clark, Joseph Cornell Dewitt and Lisa Marie Dewitt Fuka, Macario Ramirez and Chrissie Dickerson, Jeffrey Dyment, the Marvin Jacobson Family Holding Company, Charles T. and Cathy Meek, 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”), 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.

In the portion of this appeal that challenges the injunction that orders the removal of the houses from the properties on the easement, the Owners make two contentions. First, the Owners assert the State has not proved a public beach easement to the line of vegetation. Second, and alternatively, the Owners assert the Open Beaches Act does not require the removal of their houses because the houses, when built, were not located within and did not interfere with the public beach easement.

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