Mulvaney on the Severance Rehearing and Location vs. Purpose

Thanks to Hannah Wiseman for the great post summarizing the recent rehearing in Severance v. Patterson.  I meant to get to it last week, but I wouldn't have done half as good a job.  But I also encourage you to do as she suggests and listen to the oral argument yourself.

But she's not the only junior land use prof with Texas ties who has some great thoughts about the rehearing.  Professor Timothy Mulvaney at Texas Wesleyan also watched the oral argument, and composed some observations on the case, particularly the interesting question of the physical location vs. the purpose of these easements.

[T]he Texas Supreme Court conducted a re-hearing in the “rolling” beach access easement case of Severance v. Patterson.  In its original 6-2 decision, the Court distinguished between (1) an easement destroyed by an avulsive event—which the majority originally held in November does not “roll” upland—and (2) an easement destroyed by imperceptible erosion—which the majority originally held does “roll” upland.  But the Court today seemed focused not on the avulsion/erosion divide but rather on this question:

Is the geographic location of an easement physically static, such that the easement holder must re-establish that easement each time a natural event (storm, sinkhole, etc.) makes the geographic location of the original easement impassable?  Or, is it the purpose of that easement that is static, whereby no re-establishment would be necessary? 

The answer may depend on a multitude of factors (e.g., the method of creation, the use of the easement, the character of the property at stake, etc.).  There do seem to be several instances where only the easement’s purpose, not its physical location, should remain static.  At oral argument, the State pointed to the natural alteration of a river’s course, which does not require a re-establishment of the navigable servitude.  Another analogy might be that of oil and gas leases, which convey an easement by implication that is not limited to a fixed location but rather allows use of the surface as reasonably necessary to fulfill the lease’s purpose.  I would be interested to hear other analogies or perspectives off-blog ([email protected]), or even on-blog if you are so inclined.  Thank you for your time.

Feel free to share your thoughts with Prof. Mulvaney or even better, leave a comment here!

Matt Festa