A Galveston land dispute has resulted in a precedent-setting decision by an appeals court, allowing a beachfront property owner to sue governmental entities for compensation in a takings claim. The decision is a victory for a Galveston family whose 6 year legal battle to retain their property rights has touched upon both historic Texas land grants, and current beach preservation and public access laws.

The property in dispute is owned by the Porretto family and is located on the east side of Galveston Island between 6th and 27th Streets.The portion south of the seawall between 6th and 10th Streets is called Porretto Beach. The Porretto family bought beach property at auctions and sales in the 1950s and has operated a business on Porretto Beach offering concessions, umbrellas, chairs, and float rentals, and parking spaces.

Galveston Island was originally part of the Spanish land grant in Texas. In 1836 the Republic of Texas sold Galveston island to Michael B. Menard for $50,000. He sold tracts of the land for homesteading and development in what was later to become the city of Galveston. Some of these tracts extended as far as the shoreline. After the 1900 storm and the building of the seawall, beach property on the south side of the island was reduced in size.

The Texas Open Beaches Act requires that the public have "free and unrestricted ingress and egress to and from state owned beaches bordering on the seaward shore of the Gulf of Mexico." The Act gives the General Land Office the authority to enforce and promulgate the laws of public access, and to protect the public beach easement from erosion caused by development.

Henry Porretto, Jr., bought the beach property from his parents in 1974 and continued to operate the beach park. Mr. Porretto was born and grew up on the island, and spent most of his working life there. He obtained degrees as a petroleum engineer and geologist, and after working in the oil industry he became a self-employed business owner. Mr. Porretto and his wife of over 50 years had five children and were active in the Galveston community, serving on many boards and committees.

During the time they have owned the beach property the Porrettos have paid property taxes and liability insurance on it, and have maintained all improvements. They often donated use of their beach property for fundraising events for charitable organizations. At their own expense the Porrettos built a $50,000 ramp for public and emergency vehicle access to Porretto Beach. Their beach front property, they point out, allows for complete access to the public beach area and is not in violation of the Open Beaches Act.

In 1994 the Galveston Park Board notified the Porrettos that the City would begin a beach renourishment project and place a dredge pipeline across three tracts of their beach property from 10th to 61st Streets, which the City claimed as easement. Then the General Land Office became involved in renourishing what they claimed was submerged land in front of the seawall above 10th Street. After the land was elevated by the renourishment, the State claimed ownership of the land under a takings clause, declaring that submerged land extinguished all private ownership. The State included the Porrettos property in the taking, despite the family's contention that their property had never been submerged. The Porrettos produced evidence such as aerial photos and Army Corp of Engineers documents to show their beach property had never been submerged, and had in fact accreted.

Nevertheless, the General Land Office leased the replenished beach area from 10th to 103rd Streets to the City Parks Board for public recreation areas. The leases included the tracts owned by the Porrettos, but mentioned only the City and State as owners. The City, in turn, subleased this beach property to concessionaires. The Porrettos were never compensated for the loss of their property. In the lease the General Land Office says, "the uplands property littoral to the submerged lands subject to this lease are owned by the County of Galveston which executes this lease agreement...." It then goes on to say that Galveston County releases any claim or ownership in the emergent fast land gulfward of the Seawall, which will be the intended result of the replenishment project.

Though the State did not lease the Porrettos' beach property from 6th to 10th Streets, it also did not formally recognize the Porrettos' ownership, claiming that this property, too, had been submerged.

The Porrettos still utilize this property, but maintain that the State has clouded the title, which hinders their ability to sell it.

The Porrettos filed suit against the General Land Office and the Galveston Parks Board for taking property without compensation, and slander of title. According to daughter Sonya Porretto, the suit was a last resort after many meetings with officials failed to produce an agreement. "We didn't want to enter into the courtroom, because it would mean that we would have exhausted all our means, and we had no other choice. The City would sit down with us and tell us one thing, and then the State would come in and tell us another thing," she says.

The State and Parks Board filed a plea for sovereign immunity, contending that as governmental agencies they could not be sued. The District Court Judge agreed and granted the plea. The Porrettos filed an appeal of the decision, and the appellate court ruled in December of 2007 that the City and State could not claim immunity from the suit. This meant that the Porrettos could seek compensation for the land that was leased to the City, and a declaration from the State that they do own the Porretto Beach property. They will return to the District Court for this litigation unless the State appeals to the State Supreme Court.

Porretto attorney Brett Busby sees the appellate court's decision as significant for property rights. "The State," he says, "is essentially saying we did not take the land above 10th Street because we have always owned it. So it's like we can come to your house and say we own that house, and have always owned that house, and we don't have to have any evidence of title; and if you sue we claim sovereign immunity."

Sonya Porretto feels that the court victory is bittersweet because her father passed away last year and was not around to see the favorable outcome of the long legal battle. "We did not ask for damages," Sonya says of the suit, "we just wanted our property rights."