Eckhardt letter

The following letter regarding the origination of the Open Beaches Act was written by Robert C. Eckhardt. He never got around to finishing this story before he passed away but, these words of wisdom define the spirit and the intent of the Open Beaches Act. We think you will find it interesting.

ECKHARDT, Robert Christian, 1913 - 2001 (grandnephew of Rudolph Kleberg, nephew of Harry McLeary Wurzbach, cousin of Richard Mifflin Kleberg, Sr.), a Representative from Texas; born in Austin, Travis County, Tex., July 16, 1913; B.A., University of Texas, 1935; LL.B., University of Texas, 1939; United States Army, 1942-1944; Southwestern Director of Office of Coordinator of Inter-American Affairs, 1944-1945; member of the Texas state house of representatives, 1958-1966; elected as a Democrat to the Ninetieth and to the six succeeding Congresses (January 3, 1967-January 3, 1981); unsuccessful candidate for reelection to the Ninety-seventh Congress in 1980; died on November 13, 2001, in Austin, Tex.; interment in Austin Memorial Cemetery, Austin, Tex.

A little over 30 years ago, I carried a bill called the Open Beaches Bill in the Texas Legislature. What prompted me to do this was the problem raised by court decision which seemed to deny the public's right to use the beach.

The court case was LUTTES vs. Attorney General. The littoral landowner, Luttes, claimed that he had the right to drill off Laguna Madre in the dry sand of the coast adjacent to the Gulf of Mexico. The State of Texas claimed it had the right to ownership over both the foreshore (the area which normally sweeps the movement of the tides) and the dry sand seaward of the dunes or sprigs of salt grass. The Texas Supreme Court finally decided that line as being "the mean highest high tide."

The site of the dispute was far down south in the sparcely inhabited coastal crescent, but the cause celebre of the battle between the users of the public beach and the developer’s of Galveston’s West Beach was some two hundred miles north. It was not as if the oil men were madly drilling on the beach. It would make little difference whether an oil man would set up his rig on the sandy beach or would place the rig beyond the vegetation line; but it would make a great difference, in the case of a developer, as to whether or not he could use his oceanfront as a private beach, excluding the public.

The developers thought they had the right to exclude use as well as ownership of the littoral land – right to the sea – under the Luttes case; so they drove creosoted piles at three-foot intervals to prevent automobiles from passing. The result was not only stopping additions on the seashore but, stopping transit all along West Beach. Thus, the beach, beyond, was in most cases adjacent to pastures used for cattle or not used at all, and the traditional usage of West Beach for sunbathing, swimming, and other enjoyment of the sun, sand and surf was wasted, though there was no interference with the littoral landowners except by the developers who wanted exclusive beach rights.

I heard about what was happening to West Beach and drove to Galveston and saw it. I found that one would have to go some eleven miles to get to the open beaches, and if some other housing development would occur, there might be no access to the open beaches at all.

I had been elected to the Texas Legislature and was in my first term. It was too late in the regular session to introduce a bill except by unanimous consent. The South Texas representatives were hostile to any change involving the Luttes case, and they certainly would have objected. Even if I could have slipped in a bill, the oil and gas and real estate lobbyists would have noted it by the publication of the bill’s caption and knocked it out.

But, there was one chance of correcting the assumed power to interfere with the time-honored public beach usage. It was possible to add a bill on this subject in a special session in the legislature. Such a special session must be called by the governor and must provide a call upon the governor that the subject be included in the called session. During the month of the special session, the governor can add one or more subjects.

In the case of land abutting the sea, can people use the beach as a common, though someone owns it?
I began to ponder this point.

One day, I went over to the office of the Texas Observer, a little weekly paper, and discussed my problem with the editor, Ronnie Dugger. He always held the view that, that which ought to be done, can be done.

“It’s wrong,” said Dugger. “To take away the people’s right to fish and bathe and set up their awnings and towels on the sandy beach. Everybody has done it, and it doesn’t disturb the cows beyond the fence.”

I said, “But the landowner owns the land right to the high tide. That’s been decided by the Luttes case. Doesn’t he control the sandy beach seaward of the dunes and the line of vegetation?
Perhaps not, exclusively.

I thought about this and developed an anology which is old-age. The sticks are like rights: like the right to till the land, build on it or sell it. But not all the sticks are included in the bundle. Land along the open sea may be different, and that is the case, as the old decisions say “ since time runneth not to the contrary.”

One case which expressed this concept reads as follows (translated to English from the Latin of the Justinian code):
By the law of the nations the use of the shore is also public, and in the same manner as the sea itself, and for this reason any 0erson is at liberty to place a cabin there, in which he may harbor himself, and for the like reason to dry nets and draw them from the sea. Likewise, any person exercising reason, may use the seabed and the sand that washes up from it.

We have been discussing the venerable precedents concerning the fringes of the sea, but let us first describe the land which strikes the rolling surf of the open sea. This is important to our theme because it is confined to this description, not to the bays, estuaries, lakes or lagoons. This geography of the open sea-board and barrier islands and peninsulas is also the historical setting at these places, at least in the case of Galveston Island. There is not much to be said about the occupation in the other islands and peninsulas beyond Galveston Island. Before the Texas Revolution, during it, and in early period of the State of Texas, these were desert beach areas and were open for all comers.

On the Texas coast – before there was a Texas – The Karankawa Indians used the Galveston beach for their wintering place. From 1818 to 1821, Lafitte and his pirates dragged their prizes and booty on the Galveston beach. Robert Justus Kleberg and his father-in-law, Lutwig Anton Siegmund von Roeder, and their numerous kith and kin, were marooned on Galveston Island, before there was a town, and they used it freely on the beach. It is said that these German immigrants danced on the sand to the music of the Viennese waltzes. In 1837, there were but seven houses on the entire Island and it was covered with long, thick grass. But, in 1839, there were as many as thirty sailing vessels, going back and forth between Galveston and Houston and sailing to New Orleans and back. This was the kind of transportation between the island and the mainland in the Texas coast which is comparable to a ferry facility. When connections with the Island and the Mainland developed, the people in the island immediately continued the custom of using the open beach as a common.

William Bollaert wrote in his diary February 1842: About sunrise, prudent and judicious people will rise, prepare their toilette, clad themselves lightly, walk or work in their gardens, then ride or bathe on the seashore…..

In latter days, there was a stagecoach plying from Galveston to the tip of the island over the hard sands of the open beach and to a ferry to the Mainland. Cattle were herded without any restraint along the beach to deliver them to the railroad at the town of Galveston or from one ranch to another. And all this time the beach was used as a common for the pleasure and fishing and enjoyment of the sun, sand, and surf.

Had there been no development of the Open Beaches Bill, all of this tradition, including the precepts of the Roman, Spanish, Mexican, and Common Law, and deeply ingrained habit of using the free and open beaches, would have been interrupted by an inapplicable lawsuit and a line of posts denying access to these open beaches.

It was necessary to go past the legislature and lobby and go directly for the people through the press. The Houston and Galveston papers editorialized in support of the Open Beaches Bill, and letters to the editors and to the Legislature sent their message complaining about the blockage of free and open beaches.

In places like Beaumont, Port Arthur, Galveston, Houston, and Angleton, I got a good reception in the House. When I presented the bill at the rostrum, a group of supporters went into the House and dropped from the balcony an accordian-fold petition, about twenty feet long, containing some four thousand signatures.

I said, “ Gentlemen, here is the evidence of the groundswell of support for the open beaches and against developers who are taking away the rights of the people to use the free and open beaches.”
There were cries of “Point of Order, Point of Order..Demonstration in the House!”

To my great surprise, the new substitutes had been accepted by the conference and had been turned topsy-turvy by the senate plan on the previous day. All of the conferees had signed the Conference report reversing the senate plan and affirming all essential provisions embraced in the House version. The senate adopted the Conference report on July 16, 1959. Indeed, the Conference report, which established the Open Beaches Act, was clearer and more concise than was the final bill in the House. All the major and fundamental concepts of the open Beaches Act of 1959 have remained intact for thirty-two years.

There were several fights along the way, several bills, substitutes, and amendments. A man named Milton Murray slowed down a bill, H.R. 14 by sending it to the AG office to examine the question of constitutionality. This is frequently the graveyard of legislation. There were concerns about the “presumption” aspect. A professor, dean at Texas Law School raised a question: “Well, I haven’t studied this much, but why can’t the State just simply declare that, as a matter of policy, the open beaches should be open.” An experience lawyer who had worked for a title company replied: “There was a statue in Georgia which said that when a railroad train collides with an automobile, there is a presumption that the railroad is at fault but the court held that such a presumption is a violation of due process.” I answered, “That may be true, but the Georgia legislature didn’t develop any showing why the presumption was based.” I think the AG’s decision to support constitutionality weighed heavily on the distinction between a presumption of prejudice and a prima facile showing of some historical fact of public usage. That is why Eckhardt drafted the 1st Amendment to H.B.14 The section read;

Sec. 5 In any actions brought or defended under this Act or whose determination is affected by this Act a showing that the area in question embraced within the definition of area subject to proof of easement in Sec. 3, above, shall be prima facile evidence that
a) the title of the littoral owner does not include the right to prevent the public from using the area for ingress and egress and for the exercise of the time-honored usage of the shore.
b) there has been imposed upon the area subject proof of easement a prescriptive right or easement for ingress and egress and for the exercise of time-honored usage of the shore.

S.B. 9 only dealt with “State-owner beaches” and only had a width of about twelve feet between high and low tide on Galveston Island. S.B.9 did nothing to protect these beaches beyond the point of the mean higher tide. Eckhardt created a substitute to S.B. 9, it added the definition of “State-owned beaches.” These additional words:
…or such larger area extending from line of such mean low tide to the line of vegetation bordering on the Gulf of Mexico, in the event the public has acquired a right to use or easement to or over such area by prescription, dedication, or has retained a right by virtue of continuous right in the public. I added the prima facile showing that the beaches were subject to public use based upon the immemorial custom and upon prescriptive right of public access.

There were seven major court decisions that have affected the principles and application of the open beaches concept. Every one of them, from 1964 through 1986 supported the peoples right to the open beaches. Six of them afforded a strong structure to protect the peoples right to the open beaches.

The Open Beaches Act followed, as closely as possible, the concept of open beaches under civil or Spanish law and Common law. The Republic of Texas followed this concept from 1836 through 1845 and thereafter when the Republic had became a state of the Union.

That is why it is so necessary to avoid constitutional conflicts concerning vested rights as between the littoral property owner and the public’s ownership of the easement on the dry sand beach. There is also the right of sovereign to own the foreshore up to high tide. All of these areas are constitutionally protected.
Thus, the Open Beaches Act was in conformity with the civil and common law concept of the Open Beaches and also with the former six major decisions which constituted the judicial concept.

In the early 1840’s a stagecoach traveled along the beach back and forth between Galveston and the Mainland. In the San Luis Gazette of April 13, 1841, this incident was described: “As the coach traveled, the coach horses feet were wetted with the spray of the sea along the hard, smooth beach, and the passengers heard the “music of the ocean…as one travels.”

On July 27,1958, there was a formal grant of a franchise to operate a ferry from West End of Galveston Island to San Luis Island, which not only permitted passengers, a stage coach and horses, but wagons and teams, buggies and carriages, at established rates. There is no evidence that there was any cost for the mere use of the beach itself.

An eighty –two year old man, Mr. Cordray, went down to the beach this way to San Luis Pass as a boy. His testimony shows that the public customarily used the beach without restriction or objection, and a witness, Mr. Cheeseborough, a man of ninety-three, said that “no one would dream of any such things as to block the drive-way…and the drive-way was in use, I am satisfied , at least more than a hundred years ago.”

Therefore, it is well to remember that there were three bases of protecting the public in the use of the beaches. Prescription, Dedication, and Immemorial Custom. “right to virtue of continuous right in the public.”

Sometimes the AG may find it useful to rely on continuous use of the public beach beyond memory of man.
There were three court cases which were supported on the basis of prescription and dedicated right of the peoples customary use of Texas beaches open to the open sea.

The elements of a prescriptive right to use the beach are seven: acts of open, notorious, hostile, adverse, uninterrupted, exclusive, and continuous use for a period of ten years or more.

The elements of dedication are four: 1) the landowner insures the belief that he intended to dedicate the area in question to public use. 2) the landowner was competent to do so. 3) the public relied on the acts of the landowner and will be served the dedication. And 4) there was an offer and acceptance of the dedication.

Sadly, Mr. Eckhardt passed away in 2001, before he got around to completing this letter