History of the Texas Public Domain - Texas Society of Professional

HISTORY OF THE
TEXAS PUBLIC DOMAIN
Texas Society of Professional Surveyors
Annual Convention & Technology Exposition
October 11, 2015
Sheraton Dallas Hotel
Presented by
Terry Cowan, RPLS #4139
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Table of Contents
Introduction……………………………………………………………………………………3
Spanish Land Grants in Texas…………………………………………………………………4
Mexican Land Grants in Texas………………………………………………………………..26
Land Grants under the Republic of Texas……………………………………………………..38
Land Grants Made by the State of Texas………………………………………………………50
School Land Grants…………………………………………………………………….61
Railroad Land Grants…………………………………………………………………..65
Texas Inland Waterways……………………………………………………………….73
Texas Coastal Waterways………………………………………………………………96
Minerals and the Texas Public Domain……………………………………………….111
Excess and Vacancies…………………………………………………………………112
Summary………………………………………………………………………………………114
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The Public Domain of Texas and the General Land Office of Texas:
Their Continued Relevance for Texas Registered Professional Land Surveyors
Texas is unique among the fifty states of the Union for a variety of reasons, not the least
of which is the fact that we have always controlled our own Public Domain. The disposition and
management of our public lands is not simply a bit of arcane history, but remains relevant to
Texas land surveyors. The General Land Office archives are a valuable and increasingly
accessible resource. Registered Professional Land Surveyors practicing in Texas should be
familiar with the general outlines of our particular history that pertain to the Public Domain and
should be able to utilize the resources available through the General Land Office itself.
USEFUL DEFINITIONS
PUBLIC DOMAIN:
Land and water in possession of and owned by Texas, as distinguished by private lands
and lands owned by individuals and corporations.
CIVIL LAW (Spanish):
The system of jurisprudence held and administered in the Roman Empire, particularly as
set forth in the compilation of Justinian and his successors….as distinguished by the
common law of England. In Spain, the civil law statutes were known as Las Siete
Partidas, and served as the basis for governing both Spain and her colonies.
COMMON LAW (English):
As distinguished from statutory law created by the enactment of legislatures, the common
law comprises the body of those principles and rules of action…which derive their
authority solely from usages and customs of immemorial antiquity, or form the judgments
and decrees of the courts recognizing, affirming, and enforcing such usages and customs.
In general, it is a body of law that develops and derives through judicial decisions, as
distinguished from legislative enactments—case law.
Today, Texas statutes affecting land , water and minerals largely conform with English
common law, except of course when they do not! While the Republic of Texas adopted common
law in 1840, significant exceptions were made for land, water and mineral issues. Consequently,
one might say that our laws in this area reflect a common law understanding that has contructed
atop a Spanish civil law foundation.
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Land Grants in Spanish Texas, 1519-1821
Note the outline of the Province of Texas as a part of New Spain
4
Surveying in Spanish Texas
Spanish Texas Time Line, 1519-1821





1519-1685
1685-1716
1716-1763
1763-1800
1800-1821
Limited Spanish exploration in Texas
French incursions into Texas provoke initial Spanish response
Concerted Spanish settlement in Texas
Advances in the Rio Grande Valley, retreat in Texas proper
Spain remains in holding pattern regarding Texas
Note: Spanish “Texas” in no way resembled its current configuration. The state as currently
configured was part of 4 Spanish provinces:
Tejas—from San Antonio to Los Adaes
Coahuila—included most of what is now West Texas
New Mexico—included the Panhandle and far West Texas
Nuevo Santander—included the entire Rio Grande Valley
Spanish Surveying Terms

Audiencias
Spanish courts of law

Cordel
a hemp rope, 50 varas long, that was used to measure land

Denuncio
a written petition

Expediante
the papers accumulated in the land patenting process

Intendencias
lower Spanish courts

Labor
1,000 varas square (177.14 acres of farming land)

League
5,000 varas square (4,428.4 acres of grazing land)

Paraje
a stopping place called for in surveying notes

Porcione
a long, narrow land grant fronting on the Rio Grande

Protocolo
all the land files in the possession of an official

Sitio
a league of grazing land

Testimonio
a certified copy of the expediente

Valdios
the free land owned by the King of Spain

Vara
basic unit of Spanish measurement
5
The earliest land grants in what is now the state of Texas were not part of Texas at the
time of their creation. Starting in 1742, Jose de Escadon established towns along the Rio Grande
River: Laredo, Dolores, Revilla, Mier, Camargo and Reynosa, among others. In all, he founded
twenty-four towns and fifteen missions in Nuevo Santander, all south of the Nueces River, not to
mention three missions founded in central Texas. But after twenty-five years, no land grants had
been awarded to settlers, other than in the towns themselves. In 1767, the Visita General—
administrators sent to address problems anywhere within Spanish bureaucracy—came to the Rio
Grande Valley and resolved this issue.
The Visita General established porciones—long narrow land grants fronting on the Rio
Grande River. Their width and depth varied somewhat from district to district, but 1,000 varas
width along the river by 25,000 varas depth was fairly typical (In the Laredo district, the
porciones were 1,000 varas by 30,000 varas.) For example, in the Laredo area, 59 porciones
were laid out north of the river and 43 south of the river. The boundaries of the town were laid
off first, and then the side lines of the porciones would be parallel with the town lines. Later on,
this would cause problems when boundaries for one group of porciones laid off from one town
would overlap porciones laid off from another.
Town residents signed up for these porciones, with preference give to those who actually
lived on the particular parcels. The surveyors measured down the river, digging a ditch at every
1,000-vara interval. Significantly, only the actual river frontage was measured at that time, with
it being left up to the recipient to have the remaining boundaries surveyed at a later date. At this
time, the other three lines were merely projected. The land was to be occupied within two
months time and recognizable monuments placed at the corners. The owners’ names were
entered in the Acts of the General Visita. In all, 170 porciones were granted along the Rio
Grande River, in what is now Texas (400 altogether). These Acts of General Visita or Visitas are
unique to Texas and have no counterpart anywhere else. These land grants were effective in
putting land into the hands of the actual settlers along the Rio Grande Valley. As mentioned
earlier, the main problem lay in the fact that only the river-front boundaries were surveyed, and
due to the meanderings of the waterway itself, the projected lines would overlap where district
lines met (See page 9 for a good illustration of this situation.)
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1
1
1
Greaser, Galen D. New Guide to Spanish and Mexican Land Grants in South Texas, Austin: Texas General Land
Office, p. 29.
7
2
2
Greaser, p. 49.
8
Large land grants in the Trans-Nueces, 1777-1800
Three types of land grants:
1. Donation grants (such as porciones)
2. Purchase grants (special circumstances)
3. Composicion grants to legalize extrajudicial occupation.
Tremendous acreages were granted to ranchers in the Rio Grande Valley, with the
extended Ynojosa-Balli-Cavasos clan establishing control over much of the region. Rosa
Maria Ynojosa de Balli, daughter of Juan Jose Ynojosa and widow of Jose Maria Balli,
managed about one million acres, earning her the title of first “Cattle Queen of Texas.”
9
3
3
Greaser, p. 83.
10
One of the largest land grants in South Texas—the San Juan Carricitos Grant for Narcisco Cavasos
These large grants were all in the Spanish province of Nuevo Santander. Land grants in
the province of Texas were not nearly as extensive, and most were centered around the
settlement of Nacogdoches.
A well-entrenched Spanish bureaucracy governed most every aspect of colonial life. As
a consequence, the land-patenting process was lengthy and complicated. In fact, the land itself
was not the property of the government, but rather the personal possession of the Spanish king.
Las Seite Partidas prohibited the founding of towns without license from the king, in whom
property rights were vested. These common lands were known as valdios, because their usage
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was free. In other words, the resources of the land were free, but land could not be tilled, sold,
mortgaged or enclosed without the royal permission, which had to be requested. The statutes
governing their conveyances were found in the Recopilacion de Leyes de los Reinos de las
Indias. The Viceroy and the Audiencias appointed officials to oversee the process, which
included at least the following sixteen initial steps:
1. A written “denuncio” or petition presented to the proper authorities
2. The petition was officially acknowledged
3. Adjacent landowners were officially notified through a formal summons
4. Appointment of competent persons to identify the land requested
5. Official acceptance of appointment to identify the land.
6. Ocular inspection of land to ascertain its character
7. Acceptance of appointment to make ocular inspection
8. Appointment of surveyor to represent the filant
9. Appointment of surveyors for adjacent owners
10. Acceptance of surveyors by interested parties
11. Citation of surveyors
12. Acceptance of appointment by surveyors
13. Swearing in ceremony for surveyors
14. Report of persons identifying the land
15. Report of persons making ocular inspection
16. Citation of all parties to fix date of actual survey.
All of these assorted papers formed what was called the expediante. Once this
paperwork had been completed, the actual survey of the property commenced. All of the
interested parties would meet at the Place of Beginning, where the Judge of Measurements
would command the Surveyor to wax a hemp rope, known as a cordel. The rope would be
stretched taunt, and the end would be cut off at exactly 50 varas as measured by the certified vara
measure of the Judge. After this, the certified cordel was made part of the official record. The
Judge would check the cordel again after it had been stretched 50 times (every 6,950 ft.)
12
Once the actual survey started, the surveyor would make notations in field notes—
recording direction or bearing, passing calls for ravines, hills or any other physical characteristic
of the terrain, watershed, etc. At the end of each day, the work done was attested and made part
of the expediante. Often what we read as corners in the expediante were called parajes, which is
simply a stopping place. It was often a site of small proportions and not particularly an exact
point. Almost always given a name, usually connected to some physical characteristic of the
site, with some incident, or with the Saint of the particular day when it was reached. When they
returned to the place of beginning, the Judge would command the surveyor to compute areas,
make his map and add it all to the expediante.
Appraisers were then appointed, and their acceptance of the appointment made a part of
the expediante. The Judge would then draw an instrument of transmittal and send the entire
expediante to the Treasury official in Monterrey, who would begin processing the paperwork.
Then the expediante was sent to the proper authorities for approval and confirmation. The
expediante would then be returned to the Judge with instructions to place the grantee in
possession of the land. This process took a great deal of time, often years. As the composicion
grants testify, the prospective landowner was often already using the land, before final title was
conveyed.
Once everything had been approved, the Judge of Measurements would take new owner
to the land, admonish him to comply with the law by properly marking his corners with
monuments, and would then place the landowner in actual possession of the property. This
involved a number of ceremonial and traditional actions: taking him by the hand, walking him
over the land, where he would dig, touch a piece of timber, pull some grass, take some water to
sprinkle over the land, and go through various other acts in keeping with the rituals connected
with conveying actual possession. The expediante remained in the custody of the Judge. If a
copy was requested, it was known as a testimonio. Any collection of various expediantes in the
possession of an official was known as the protocolo.
13
Case Study:
Francisco Cordente Grant (1809) in what is now Duval County, Texas
English translation of field notes (7 pages out of 54)
14
15
16
17
18
19
20
21
Right: Aerial photograph
showing “El Charco Redondo
de San Pedro”
Below: Aerial photograph
showing contemporary ranch
headquarters in same location
as described in 1809 field
notes.
22
1868 sketch showing the Cordente and surrounding surveys in Duval County, Texas.
23
4
4
Greaser, p. 161.
24
JOSE FLORES FOUR LEAGUE GRANT
(1792)
The only description of the Jose Flores
Four League Grant (1792) in what is now
Nacogdoches County, Texas. The only
descriptive language is “two leagues to
each wind.”
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Mexican Land Grants in Texas, 1821-1835
5
In 1821, Mexico finally won independence from Spain. This development accelerated
settlement in the Province of Texas. In contrast with the Spanish administration, the new
Mexican government looked favorably upon settlement in this remote province. Not only
Americans, but Irish settlers, as well as Mexican nationals began to move into Texas. What did
not change, however, was the lengthy process necessary to obtain good title. The factor that
motivated American emigration to Texas was not religious or political freedom, but rather the
5
Stephens, A. Ray, Texas: A Historical Atlas, Norman: University of Oklahoma Press, 2010, p. 73.
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lure of cheap land. American settlers in Texas were perfectly content to live under Mexican rule,
as long as they were unmolested and title to their land holdings remained secure. Between 1800
and 1820, public land in the United States was offered at $2.00 an acre, with one-quarter down
and the rest paid out over four years. After 1820, the price dropped to $1.25 per acre, but it all
had to be paid upfront in cash. In Texas, the land was basically free, once certain fees and
associated costs were paid. This worked out to about four cents an acre, with six years to pay it
out. Texas was combined with Coahuila and the state of Coahuila y Texas aggressively pursued
colonization. The Rio Grande Valley was located in the state of Tamaulipas, which did not
pursue colonization.
The Imperial Colonization Act of 1823 was the first of the national colonization acts.
Stephen F. Austin was allowed to bring in three hundred families. Austin, as empresario, would
receive three haciendas and two labors of land (about 22.5 leagues, or 104,940 acres) for each
two hundred families that he settled in Texas. Austin, used to the American federal land system,
suggested that each man in the colony receive 640 acres, each woman 320 acres, each child 160
acres, and 80 acres be allotted for each slave. The Mexican government refused this request,
however, and insisted that each family engaged in farming would receive one labor of land
(177.1 acres), and each family engage in ranching would receive one league of land (4,428.4
acres). The standard of measurement was set out as the vara, described as three geometrical feet.
Leagues were to be 5,000 varas square, forming a sitio. Five sitios would comprise a hacienda.
Significantly, the American system of land measurement was not imposed on the Mexican
province of Texas. The Spanish system, including their particular understanding of both land
measurement and apportionment, was maintained for these new American landowners
All of the American settlers were supposed to profess the Roman Catholic faith.
Furthermore, the sale or purchase of slaves was prohibited. Any children born to slaves in Texas
would be considered free once they reached the age of fourteen. These last two provisions were
largely ignored by the American emigrants.
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The “lost” empresario grant of Pedro E. Bean
The Imperial Colonization Act of 1823 was
soon followed by the National Colonization Act
of August 18, 1824 and the Colonization Law of
March 24, 1825. Other empresarios tried to
imitate Austin’s success: Sterling Robertson,
Green DeWitt, Ben Milam, Power and Howelton,
McMullen and McGloin, Lorenzo de Zavala, and
perhaps the most colorful of these early Texians,
Pedro E. Bean.
Austin was the most successful of all the
empresarios. By the spring of 1825, land titles to
his original 300 families had been issued. In
1827, he received another contract for an
additional 100 familes, and then for another 300
families in 1828. Of course, many Americans
started pouring in to the province who were
completely unconnected with any of these official emigration contracts. In short order, the flood
of American settlers began to change the complexion of the region and raise alarm among
Mexican officials. Likewise, the settlers began to grow concerned with the political turmoil in
Mexico. In 1830, the Mexican government closed further emigration from the United States.
This action did nothing to halt the flow of American settlers in Texas, however. They kept
coming. Between the years 1821 and 1835, settlers obtained land in Texas by one of three
methods:
1. An empresario grant
2. A special grant
3. An 11 league grant
28
Lay-out of San Felipe de Austin (1824)
29
An example of an eleven-league grant: the Blas Reyes Grant
30
31
32
Smith County Texas: outlined surveys are empresario grants and special grants; large grant in the
southwest corner is 7 leagues of an 11 league grant
Case Study:
Field notes for the
Vinson Moore League
in Smith County,
Texas—an
empresario grant in
Burnet, Vehlein and
Zavalla’s Grant.
33
34
Patent field notes issued to Vinson Moore
There was less enthusiasm for settlement in Tamaulipas than there was in Texas. The
province did enact its own colonization scheme, however. Applicants received up to five leagues
of land, priced at thirty pesos a league. Nicholas Balli perfected his controversial claim to Padre
Island during this era.
The legislature in Saltillo enacted new legislation to counter the massive American
immigration. Under their plan, at a nominal cost Mexican nationals could purchase eleven
leagues of land in Texas. This option was denied to the American settlers. Mexicans living in
Coahuila, however, showed little interest in moving to Texas, regardless of the incentives.
American speculators quickly took advantage of the situation. They swarmed Saltillo, convinced
local residents to apply for a grant and then purchased the eleven leagues for pennies on the
dollar (or outright forged applications, in the case of the Don Thomas Quevado Grant in East
Texas). American settlers who had received titles to their land by legitimate means were
incensed at this development. The unrest over this uncontrolled real estate speculation by
unscrupulous investors was as great a factor as any in the eventual rebellion against Mexico. A
Texas convention arbitrarily closed down all land sales in the province as of November 13, 1835.
35
Mexican Land Grants in South Texas, 1821-1835
36
37
1835 American map showing location of empresario contracts
Land Grants in the Republic of Texas
Following the surprise victory at the Battle of San Jacinto in April, 1836, the infant
Republic of Texas was able to secure a tenuous independence. The nation endured for nine
years, but it was never economically, politically or militarily stable. A variety of internal
American political controversies prevented Texas from being annexed to the United States.
Mexico never recognized the independence of its former possession, but continued to regard it as
simply a province in rebellion. Mexican troops occupied San Antonio and threatened Austin—
twice. The government was deeply in debt and lacked resources—other than raw land—to build
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a functioning republic. In short, the Republic of Texas faced three pressing problems, all related
to land:
1. The border question
2. The land question
3. The money question
The Border Question
The secret Treaty of Velasco, signed between Sam Houston and a desperate General
Antonio Lopez de Santa Anna, provided for the withdrawal of Mexican troops to below the Rio
Grande River. This was not intended as a boundary agreement, as such, but rather a means to
cease hostilities by creating a buffer zone between Mexican troops below the Rio Grande and
Texas troops north of the Nueces. Not only did Mexico not recognize the river as the southern
boundary of Texas, they even refused to admit to Santa Anna’s right to make such a
commitment. (Other than an off-handed inference by French negotiators trying to sweeten the
pot during the 1803 Louisiana Purchase deliberations, no one had ever suggested that Texas
extended to the Rio Grande River.)
The infant Republic, however, by pressing every advantage interpreted the treaty
language as a new, de facto border for the Republic. Cooler heads, such as Stephen F. Austin,
considered the move unwise, one that would needlessly inflame Mexico. Austin suggested a line
midway between the Nueces and Rio Grande Rivers, noting that the Bravo as the line would cut
off many settlements and some villages of native Mexicans and divide the populous valley of New
Mexico. It therefore may be seriously objected to. The bellicosity of Mirabeau B. Lamar,
however, more accurately characterized public sentiment when he advocated, stout hearts and
sharp swords that could make a war upon our western boundary that would make the border
river roll like a flood of fire.6
On December 19, 1836, the spunky Congress of the Republic of Texas boldly adopted
“An Act, To Define the Boundaries of the Republic of Texas,” to-wit: …beginning at the mouth
of the Sabine river, and running west along the Gulf of Mexico three leagues from land, to the
6
Austin and Lamar quoted in Greaser, p. 123.
39
mouth of the Rio Grande, thence up the principal stream of said river to its source, thence due
north to the forty-second degree of north latitude, thence along the boundary line as defined in
the treaty between the United States and Spain, to the beginning…
Soon American and English mapmakers began to depict this novel configuration as the
boundary of Texas. As a practical matter, however, the Republic of Texas never exerted any
control over this region. Residents along the Rio Grande River continued to go about their lives
as citizens of Mexico, buying and selling land that was recorded in Mexico rather than Texas. In
1840, a secessionist “Republic of the Rio Grande,” with its capital at Laredo, lasted for about six
months. Significantly, they declared independence from Mexico, not Texas. The no-man’s-land
status of the territory south of the Nueces River would not be resolved until annexation by the
United States and the resultant Mexican-American War.
The Land Question
The most pressing problem facing the new nation, however, was the land question. All
land sales had been arbitrarily discontinued as of November 13, 1835. Existing residents and
new immigrants, as well as veterans of the recent war, were all clamoring for land. A systematic
process had to be established, wherein land patenting within the Republic would be centrally
organized and copies of maps and records maintained to address disputes and prevent
overlapping land claims. This required the establishment of a General Land Office.
And whereas the present unsettled state of the country and the general welfare of the people
demand that the operations of the land office, and the whole land system shall be suspended until persons
serving in the army can have a fair and equal chance with those remaining at home, to select and locate
their lands, it is hereby declared, that no survey or title which may hereafter be made shall be valid,
unless such survey or title shall be authorized by this convention, or some future congress of the republic.
And with a view to the simplification of the land system, and the protection of the people and the
government from litigation and fraud, a general land office shall be registered, and the whole territory of
the republic shall be sectionized, in a manner hereafter to be prescribed by law, which shall enable the
officers of the government or any citizen, to ascertain with certainty the lands that are vacant, and those
lands which may be covered with valid titles.
And while the above statute referenced “sectionizing” the republic—one assumes in a manner
similar to that of the United States--that was not what was done. The vastly varyingly sized
40
Spanish and Mexican land grants were maintained and confirmed. Not only that, but the new
republic retained the Spanish system of land measurement and division as well.
The actual surviving land grant papers were scattered everywhere: in the files of the
various empresarios or with former Mexican officials, or simply stashed-away in someone’s
trunk. These records hd to be pulled together into a common repository before any new grants
could be issued. To lead this Herculean task, the Congress of the Republic of Texas chose John
P. Borden, an impressive twenty-four year old surveyor. He undertook this responsibility with
practically no staff and little operating funds. In late 1836 he and his brother Gail Borden, Jr.
(of later milk fame) surveyed and laid out the town of Houston. President Sam Houston
appointed Borden as the first land commissioner of Texas, an office he held from August 23,
1837, to December 12, 1840. An example of the difficulty in gathering these records comes
from a short (an unintentionally humorous) note written by George A. Nixon to Commissioner
Borden:
Some time ago Mr. Gregg presented me with a letter addressed to Captain A. Hogkiss requesting the
archcheves or Land Papers Belonging to Zavala, Vehlein, and Burnet’s colloney. At that time I wose sick
and partley confined to my Bad and taking Medasan, and I Remaned unwell up to this time and now
hardly abel to attend to business tho I have had 4 yong man Employed in Wrighting and taking account of
the Papers and making a Duplicate of them and it is my entantians to Start Down with the Papers my Self.
I have been at much Expance and trouble and Princeaballay owing to my Sickness and I am so week that
I can hardly wright.
By statute, the General Land Office of Texas contains six offices:

The Commissioner of the General Land Office

The Chief Clerk

The Abstract Clerk

The Chief Draftsman (Surveyor)

The Receiving Clerk

The Spanish Translator
41
The Republic was divided into a number of Land Districts (see following map). A Board
of traveling Land Commissioners was appointed for each Land District. For the most part, the
land-patenting process was set-out as follows:
1. Applicants would appear before the particular Land Commissioners in his Distric and
present affidavits attesting to their eligibility for a particular grant.
2. The Land Commission would issue a certificate entitling the applicant to locate their
acreage anywhere on the unappropriated public domain. The certificates could be
assigned to others, and they could also be divided between acreages in different locales.
In times when cash was scarce, these land certificates often served as legal tender.
3. The applicant then determined where he would like his land (or part of his land) to be
located and then contacted the District Surveyor (or one of his deputies) to have the
parcel surveyed. This official had the immediate responsibility of keeping the survey
records within his district and assuring that there was not an overlap with any pre-existing
grants.
4. The surveyor would survey the parcel, prepare and date his field notes, as well as prepare
a sketch showing the tract’s relationship to existing surveys. Whenever possible, the new
survey would adjoin a pre-existing survey for a grant. The surveyor would assign a
survey number to the each parcel. The date of the field notes prepared by the surveyor—
not the date of patenting--is the controlling factor in determining which survey has legal
precedence in any given area.
5. The surveyor would then send the packet with the field notes and sketch to the the
General Land Office in Austin. The staff there would check the survey against their
master plats. If there were no conflicts and if everything was in order, then they would
issue a patent to the applicant, which was often filed in the county deed records, as well.
6. Later in history, the General Land Office assigned abstract numbers to each land grant
within every county.
Three numbers are related to this process:
1. The Certificate Number—assigned by the Land Commissioners within each district
2. The Survey Number—assigned by the District Surveyor or his deputies in each district
3. The Abstract Number—assigned by the General Land Office
42
Returns from Harrisburg County, Texas 1839. This is a page from the register of the Land
Commissioners for that District, in which the names of the applicant, the date, the certificate number, the
acreage granted, and any remarks are recorded. For example, Henry Humphreys applied on June 13,
1839. He would have had to have submitted two affidavits attesting to his required residency in Texas.
His certificate number was 379, for 640 acres due to a single man. He could locate all or part of this
acreage anywhere in the unappropriated public domain of Texas.
43
The original Land Districts of Texas, superimposed upon a current county map of the state.
44
One of the earliest types of land grants established during the Republic years were the
Headright grants. The First Class Headrights awarded a “league and a labor” to any resident of
Texas who lived here prior to the Declaration of Independence on March 2, 1836. Significantly,
this earliest type of grant retained the Spanish system of “leagues and labors.’ The Second Class
Headrights was given to residents who arrived after independence, but before October 1, 1837.
This category marked a break with the Spanish understanding of land units, awarding 1280 acres
(or two sections) to married men and 640 acres to single men. Third Class Headrights were
given to those who arrived after October 1, 1837 and before January 1, 1840. Married men
received 640 acres and single men 320 acres. Fourth Class Headrights were issued to those
who arrived after January 1, 1840 and before January 1, 1842. They received the same as Third
Class Certificates, but with the added requirement that at least ten acres be under cultivation.
The First Class Certificates were issued as rewards for those original residents who had fought
for independence. The latter headright categories were clearly intended as incentives to
encourage immigration to Texas.
HEADRIGHT GRANTS UNDER THE REPUBLIC OF TEXAS
CLASS
First
DATES
ACREAGE
Before March 2, 1836
Married—1 league & 1 labor
Single—1/3 league
No residency requirements
Second
March 2, 1836 – October 1, 1837
Married—1,280 acres
Single—640 acres
No residency requirements
Third
1 October 1837 – 1 January 1840
Married—640 acres
Single—320 acres
No residency requirements
Fourth
1 January 1840 – 1 January 1842
Married—640 acres
Single—320 acres
10 acres must be cultivated
45
During the Republic era, the government also issued many Bounty Grants and Donation
Grants. The former were issued to induce military service. In other words, land was promised
in order to encourage enlistment of volunteers. The latter were issued as a reward for veterans or
their families who had already participated in certain battles or campaigns. From the very
beginning, as early as November 24, 1835, Texas offered bounty warrants to induce men to join
their army. Various offers were tried, but were standardized at independence at 1,280 acres for
those already serving, and 640 acres for those who would enlist for six months. On December 4,
1837, the offer was changed to 320 acres for every three months service, not to exceed 1,280
acres. Surviving veterans or their heirs of the battles of the Texas Revolution, as well as for the
signers of the Declaration of Independence received donation certificates. Donation records
were always kept separately in the General Land Office. Interestingly, the records associated
with military Bounty warrants were kept in the records of the Secretary of War of the Republic,
not the General Land Office. In the late 1850s, state employees were discovered to have been
printing counterfeit certificates in that office. The guilty parties burned the office down to hide
their trail. A Board of Claims was established for applicants to resubmit for bounty certificates.
The Money Question
The third great problem plaguing the Republic of Texas was the “money question.” Both
during and after the Revolution, Texas was flat broke, with no money to buy arms to defend
itself, no money to develop the incipient country, and really no money to conduct even the most
minimal of public responsibilities. The only thing it did have was LAND.
On December 4, 1835, the provisional government of Texas authorized Austin, Archer
and Wharton to negotiate a $1,000,000 loan by issuing bonds. If cash couldn’t be raised, then
the commissioners were to “pledge or hypothecate the public lands of Texas.” Under this
agreement—land scrip was offered for sale. Three things characterized this arrangement:
1. Land scrip was evidence of debt payable at a given rate.
2. The owners were not required to reside in Texas.
3. Land scrip was assignable.
Problems soon developed with the plan. The purchasers of these land scrips were promised
immediate location of property, when even holders of military land certificates had not yet had
their property located. Only $250,000 was subscribed.
46
So, President David G. Burnet authorized another agent to raise funds—Thomas Toby of
New Orleans. He could issue scrip for 500,000 acres at 50 cents an acre. Between 1835 and
1841, a total of 1,329,203 acres of land were sold by this method. The money did little to lift
Texas out of its dire financial straits, but it did keep the Republic solvent (barely).
Even after Texas was annexed to the U.S., it remained deeply in debt. The U.S.
government refused to assume Texas’ debt upon annexation in 1845. On March 24, 1846, the
Texas senate reported in favor of selling the entire public domain for cancellation of their
$10,000,000 debt, surely one of the worst real estate deals ever contemplated! Fortunately, the
United States did not agreed, and in the Compromise of 1850, Texas gave up 67,000,000 acres
for settlement of $10,000,000 debt (more later). When all was said and done, Texas received
$12,750,000. This solved the immediate financial problem. Texas had about $3,000,000 left
over, of which $2,000,000 was used to start the permanent school fund, and with the excess, a
new capitol and governor’s mansion, and an insane hospital were constructed. Enough remained
to make an allowance for counties to retain state taxes so they could build courthouses and jails.
All this financial responsibility was long-gone by the time of the Reconstruction. By
1874, the state was deeply in debt, with expenditures exceeding income by two to one. Governor
Roberts instituted draconian budgetary measures and reached into the public domain one last
time. This resulted in the notorious “50 Cent Act” of 1879, where public land in 54 West Texas
counties were set aside to be sold at 50 cents per acre, half going to the permanent school fund
and half applied to the public debt. Land Commissioner William C. Walsh thought the price was
too low and sought to raise it to at least one dollar per acre. He took advantage of a technicality
in the law and stopped sales until the act was repealed in 1883.
In one other famous example, Texas used its public domain to provide funding. In 1875,
the Texas Legislature set aside 3,000,000 acres in the Panhandle to fund the construction of a
new state capitol. Also, 50,000 acres were set aside to fund the cost of surveying this acreage.
Half of the proceeds would still go into the permanent school fund. The present capitol was
completed in 1888. The “Capitol Syndicate” who took up the state’s offer sold the land to a
group of investors who established the legendary XIT Ranch in the Texas Panhandle. The
sections—unique in size—were known as the “Capitol Lands.”
In 1915, the Capitol Lands were resurveyed and new field notes filed in the General Land
Office in 1918. The resurvey discovered 57,772 excess acres that had been awarded to the
47
capitol syndicate. The state of
Texas took this to court and
eventually recovered the
acreage in 1924.
The Donation Land Certificate
awarded to the Heirs of William
Jones Cowan who died at
Goliad.
During the years of the
Republic of Texas, the Congress authorized a number of “Empresario Contracts,” just as had
been the case when Texas was under Mexican jurisdiction. The most successful contractors
were the Peters Colony and the Mercer Colony in North Texas (the Dallas area), the FisherMiller Grant in the Texas Hill Country (which brought in German immigrants to New Braunfels
and Fredericksburg), and the Henry Castro Grant southwest of San Antonio (which was settled
with Alsatian immigrants.) Public opinion in Texas opposed these immigration schemes,
however, as they thought that it locked-up too much valuable land that would have otherwise
been available for others to claim.
In the waning days of the Republic, Preemption grants were instituted. These were
basically homestead grants.
Pre-empt means to claim, or homestead. The applicant could
basically have the land free of charge, as long as they lived on it. The first preemptions date to
1845 and entitled the applicant to settle upon vacant public land and have the first option to
purchase it. The law required that the applicant live on the property for at least three years and
make proper improvements. Under this scenario, 320 acres could be purchased for fifty cents an
acre. The law was later revised to delete the requirement of any payment, and still later the
acreage was reduced to 160 acres. In terms of numbers of applications, the Preemption Grants
were one of the most popular land grants.
48
7
77
Stephens, p. 120.
49
Land Grants in the State of Texas
The annexation of Texas by the United States finally happened in 1845. Part of the
negotiated treaty was the provision that America would not assume Texas’ monetary obligations.
In other words, Texas would keep its public debt. The other side of the equation however, was
the fact that Texas would also retain its public domain. There would be no federal land in Texas,
but everything would be owned by the state and managed by the General Land Office of Texas.
The annexation of Texas precipitated the Mexican-American War, as President James K.
Polk, unlike the presidents of the Republic of Texas, had the military muscle to back up the
controversial claim to the Rio Grande River. With a view really towards annexing California,
President Polk dispatched American troops to the north bank of the river, knowing that this
would elicit a response from the Mexican army. With the signing of the Treaty of Guadalupe
Hidalgo in 1848, the U.S. had had successfully wrested what is now the American Southwest
from Mexico. Several pressing problems had to be addressed, affecting both the state and nation.
First, Texas’ claims to the Rio Grande in New Mexico and what is now Colorado and Wyoming
were even more specious than in the Rio Grande Valley and not taken seriously. Texas took a
hard line, however, and the issue was finally resolved in the Compromise of 1850. The present
borders of the state took shape as Texas abandoned any claim to the 67,000,000 acres in this
territory. In return, the United States paid Texas ten million dollars and assumed its public debt.
The other problem was more pressing—this was what to do with the Rio Grande Valley?
Texas had claimed it since 1836, but only occupied the region behind the American troops after
1845. During those years, land had been bought and sold, with the deeds kept in Mexican
repositories. How would the State of Texas take control of this situation? Whose landholdings
would they recognize? What land was available for Texas certificate holders, clamoring to settle
in the region? Some voices, such as Rep. A. S. Cunningham of Victoria, advocated confiscating
the land of anyone who aided or assisted the Mexican Army during the Texas Revolution. This
measure, if adopted, would have effectively forfeited all landholding in the Valley. Nervous
50
residents along the Rio Grande River petitioned Washington to create a new state of the Rio
Grande, to put themselves outside the control of Texas.
Fortunately, cooler heads prevailed. “Might does not always make right. It is not right
and just to pursue this course towards those who have been placed in this peculiar situation; who
have not been able to defend themselves, while it has been out of our power to give them
protection. In such a case as this, we have not the right to confiscate their property, to take from
them their homes, the lands they were born upon and lived upon up to the time of the Revolution,
without giving them a showing and without considering their situation.”
To resolve the impasse, Governor H. Peter Bell created the Bourland and Miller
Commission, which would investigate and receive documentation to confirm land grants. At
first, residents were suspicious, but soon the commission started gaining traction. Submission
was purely voluntary. In other words, landowners were not compelled to submit their claims for
investigation. If they refused, this did not invalidate their claim, even though the General Land
Office would not have this information. The benefit to the landowners was obvious: this was
the most straight-forward, secure manner in which they could have their property confirmed in
this new jurisdiction.
The state of Texas moved quickly to confirm land grants, by statute on September 4,
1850. Soon other grants wee confirmed by the Legislature, with 234 claims approved by early
1852. Whenever possible, the commissioners leaned heavily in favor or confirming all
applications. The commissioners did consider, however, that abandonment for a period of five
years was a cause of forfeiture of the land. This had been the law under Mexico and they
rejected some ten claims on this basis. The Relinquishment Act of 1852 established the
procedure that the confirmation process would follow for the next fifty years.
Beginning in 1860, the Texas Legislature opened a three-year window of time (later
lengthened to five years) in which applicants could submit claims for confirmation. Instead of
being presented to the Legislature, however, the claims would be argued before a District Court,
with the District Attorney representing the State. After 1870, all such claims were to be tried in
the Travis County District Court. Applicants had a set period of time to have their grant
surveyed and field notes sent to the General Land Office. The main difference was that the
51
claims no longer enjoyed the presumption of validity, as the easier confirmations had already
gone through. Most of these applications ultimately ended up in the Texas Supreme Court.
In 1901, the Texas Legislature passed a new act, in which three options were allowable to
confirm lingering land titles questions in the Valley:
1. Suits could continue to brought and tried in the Travis County District Court.
2. Landowners could sue the State if the Land Commissioner would not issue a patent.
3. The Attorney General could bring a Trespass to Try Title suit on dubious grants.
Again, Texas never made submission compulsory. For the claims that were submitted, however,
over 95% were confirmed.
One interesting case that illustrates the complexities of the varying situations is that of the
Juan Moreno”San Juan” grant in Jim Wells County. In October 1835, the land was surveyed for
Moreno under the authority of the governor of Tamaulipas, even though the paperwork was not
finalized until December 1835 (after the declaration of November 13, 1835 by the Provisional
Government of Texas). In 1848, the family had their paperwork documented and attested to by
the U. S. Consul General in Matamoros. In 1854, the property was resurveyed by Felix Blucher
and the notes recorded in Book E of the Spanish and Mexican Records in Nueces County, Texas.
In 1879, the County Surveyor attested to these records and had them recorded in the Deed
Records of Nueces County. This record indicates that the owners of the land were very
conscientious in taking care of business when it came to their land.
The grant, however, never went through a confirmation process, either with the original
grants confirmed by the Legislature, or later suits brought before the District Court of Travis
County. And so while there were records of the tract in Nueces County, there was no record of
the Juan Moreno Grant in the Texas General Land Office. In the early years of the 20th-Century,
a school survey was laid down over a portion of the property, which set off correspondence
between the General Land Office staff and the Moreno heirs and their attorney. The State
recognized the validity of their title, but there was never any confirmation of the grant, and the
Land Commissioner noted that the documents were in the file for informational purposes only.
52
Case Study: The Juan Moreno Grant (1835) in what is now Jim Wells County, Texas
53
54
55
56
57
58
59
60
School Lands Grants in Texas
Of all the lands Texas gave for various purposes, those given to promote education have
produced the greatest long-range benefits to the state. Thomas Lloyd Miller8
In 1838, President Mirabeau B. Lamar urged the establishment of an educational system
endowed with land. In 1839, the Congress of the Republic of Texas established the County
School Lands, in which every county would receive four leagues of land (17,712 acres). This
set a very important precedent and was a landmark in Texas education. Almost all of Texas’
eventual 254 counties received their four leagues of land. The sale of this land was used to
8
Miller, p. 107.
61
establish schools
within the particular
counties. The location
of the four league
county grant was not
related to the location
of the recipient county.
In 1845, the
Texas Legislature
established the
Permanent School
Fund, which would
receive donations of
(A typical 4 league county grant—Wheeler County School Lands in Hardeman County)
land and money. The principal would not be touched and the state dedicated one-tenth of public
revenue to the fund.
In 1852, the state began donating sections of land for railroad construction (of which
more later), with a requirement that an equal number of sections be surveyed for the state. In
1866, the Texas Legislature designated that these alternate sections be allocated to the State
School Fund. Also, one-half of the sales of all other public lands were to be donated to the
school fund as well. In 1873, one-half of all public land was reserved for the public school fund.
This legislation came just in time to save land for the school fund. Grants were also made to
benefit eleemonsynary institutions (orphan’s homes, schools for deaf mutes, schools for the
blind, and insane asylums.)
In 1839, President Mirabeau B. Lamar convinced the Congress of the Republic of Texas
to grant 50 leagues (221,420 acres) to establish two state universities. In 1856, an act was passed
that authorized the survey of these lands in North Texas, which were quickly sold at $3/acre. In
1858, an act was approved establishing a “University of Texas.” The university was also
promised one out of every ten alternate sections being reserved for the state in the railroad
62
grants. In 1876, the new constitution substituted 1,000,000 acres in far West Texas. Also, Texas
A&M was allowed to received one-third of the increments in the permanent university fund. In
1883, the remainder of the public domain was designated to be divided equally between public
schools and the university.
63
It could be argued that the Texas Legislature never truly realized the value of the school
land sections, and was primarily interested in liquidating the land inventory. There was much
fraud in the sale of this land to actual settlers. The primary complaint from the General Land
Office, however, was not the fraud, but that the land was being sold too cheaply. In 1901, the
“School Land Rush” ensued, which allowed for the purchase of four sections (2,560 acres) with
forty years to pay at 3% interest. The land was sold by the County Clerk, “first come, first
serve.” Land Commissioner’s Charles Rogan’s opposition to the rampant fraud that ensued led
to the adoption of the “Highest Bidder” Law of 1905.
Railroad Land Grants in Texas
Outside of grants dedicated to education, grants to promote railroad construction were the
largest single category of land grants in Texas, with over 32,000,000 acres granted. In December
of 1836, the Congress of the Republic of Texas authorized the establishment of a corporation that
would sell 500,000 shares at $100/share to build a railroad from the Sabine River to the Ro
Grande. Of course, nothing come of this far-fetched proposal. An early Texas map shows an
existing railroad, but it would be two decades before there was even the most elementary railroad
traffic in the state. (see map on following page.)
64
Starting in 1851, mass meetings were conducted throughout the state to promote plans to
build railroads. The state proposed paying for one-third of the construction costs up to $12,000
per mile. Also, the state would offer eight sections of land for every mile constructed. There
were no takers. Later in 1852, the state chartered eight railroad companies. Each company
would build five miles of track before being reimbursed. At that time, the company would
receive eight sections of land for every miles constructed. The railroad company would be
responsible for surveying and providing information to the General Land Office. They would
also have to survey an identical section of land for the state. Again, there were no takers. In
1853, the state offered a new initiative, with twenty sections of land for each mile constructed.
The line must begin on the eastern border of Texas and extend to El Paso. In addition, the state
would grant a 300 ft. right-of-way. Again, the railroad companies would be required to survey
an equal amount to be retained by the state.
To facilitate this, a Mississippi and Pacific Land Reserve was established: all lands east
of the 103rd parallel of longitude west between the parallels of 31 degrees and 33 degrees North,
65
and all vacant land west of 103rd parallel of longitude between 30 degrees and 32 degrees North
latitude. No company took up the offer, but the Reserve remained intact for several years, to the
deep resentment of some Texas certificate holders. In 1854, the state upped the ante, offering 16
sections of land for every mile constructed, but only after 25 miles of track had been laid.
Railroad construction finally began to take hold in the years preceding the Civil War, with a line
inching north out of Houston. By 1858, it had reached Hempstead, and by 1860, it had reached
within 14 miles of Bryan. After the Civil War construction resumed and it reached Corsicana in
1871, and Dallas in 1872. Later that year reached Denison, which tied into the Missouri, Kansas,
and Texas RR to St. Louis.
Grants for all internal improvements were discontinued in 1882. The role that railroad
construction played in the development of the state cannot be underestimated. Below is a
comparison of miles constructed and population:
1850
212,592 population
0 miles of railroad
1860
604,515 population
311 miles of railroad
1870
818,519 population
711 miles of railroad
1880
1,591,749 population
3,244 miles of railroad
The Texas and Pacific Railway was the most significant railroad construction venture in
Texas:






The largest grant to a single entity
A reserved corridor within which the railroad would be constructed
A set of field notes was recorded and upheld by the Texas Supreme Court
The state would retain the even-numbered sections
The surveying turned out to be problematic
Some grants ultimately lay outside the reserve
In 1857, a centerline description was recorded for the reserve. This locked-in the corridor
for eventual railroad construction, and prevented settlement in the area until the railroad was
built. The Memphis, El Paso and Pacific Railway won the concession from the state. They
would receive eight sections for every mile of track constructed (later increased to ten sections).
This centerline became known as the “Line of Recognition,” and it was surveyed and marked
with mile posts every mile. These markers were earthen or stone mounds. Significantly, this
66
was the centerline of the reservation, not the centerline of the railroad that would be constructed.
Field notes were filed in each land district and in the General Land Office. The Supreme Court
of Texas ruled that this field note description was valid, even though the boundaries of the
reservation were not marked. This reserved the strip from settlement. The “T&P” underwent
several bankruptcies and reorganizations, but finally completed the railroad across Texas,
meeting an east-bound tract from California at Sierra Blanco on December 16, 1881.
Commencing at U.S. Mound No. 97 on the Texas-Arkansas border;
Thence North 79 degrees West to the Bowie/Red River County line;
Thence North 77 degrees 30 min. West to the Red River/Lamar County line;
Thence South 86 degrees 45 min. West to the Southeast corner of the Chism Survey;
Thence South 75 degrees 45 min. West to the Lamar/Fannin County line;
Thence South 66 degrees 15 min. West to the Southeast corner of Grayson County;
Thence South 67 degrees West to a point on the Collin/Denton County line;
Thence South 67 degres West to a point on the Wise/Parker County line;
Thence South 63 degrees West to a corner on the Parker/Palo Pinto County line;
Thence South 64 degrees West to the Brazos River;
Thence South 84 degrees West to a corner on the line between Milam and Bexar Districts;
Thence South 77 degrees West to corner eight miles south of the Southeast corner of NM;
Thence West to the Pecos River;
Thence West to the Rio Grande River.
Under the Act of 1873, the T&P would receive 14,000,000 acres if they laid their tracks in
a timely manner. Once 10 miles had been constructed, they were to survey and submit field
notes to the General Land Office for 20 sections for every mile for the company, and 20 sections
for every mile for the state. In other words, for each mile of rail constructed, the T&P would
submit field notes for 25,600 acres of land.
The area was divided into 3 divisions: the Eastern division (east of Ft. Worth), the
Brazos Division (to a point on the Taylor/Jones Co. line) and the Pecos Division (west to Rio
Grande). A preliminary reconnaissance of the reservation determined it contained 15,500,000
acres. As half of this went to the state (7,750,000 acres), this left only 7,750,000 acres to be
awarded to the railroad, considerably less than their entitlement of 14,000,000 acres. So, over
6,000,000 acres would have to be located outside the reservation. Consequently, it was
imperative that they exhaust the lands within the reservation first, so they could locate additional
land outside.
67
An erroneous opening of the reservation in 1869 by the Texas Legislature had depleted
all available land east of Ft. Worth by homesteaders.
The company was able to locate only
3,000,000 acres in the Eastern district. The T&P employed local surveyors to survey the
sections in the Brazos District. The scheme was to survey blocks containing 96 sections (61,440
acres). The sections were 6 miles wide and extended 8 miles on either side of the centerline (16
mile reservation in most places) In the Pecos Division, the reservation was 80 miles wide.
Township lines were run every 8 miles parallel with the centerline of the reservation. Block
lines were run at every 6 miles at right angles to the centerline. Townships were designated 1-5
north of the centerline and 1-5 south of the centerline. Tiers of blocks were numbered from east
to west, numbered from 28 through 46. A block in a township system was 6 miles wide by 8
miles long and contained 48 sections. The surveyors set corners at the block corners only, not
each section. The T&P had to not only lay the track, but had to survey the required sections and
submit field notes to the General Land Office before the deadlines if they were to receive their
allotted sections.
In 1881, they hired former Land Commissioner Jacob Kuechler to survey 2,600
certificates in the Pecos District (1,664,000 acres). He surveyed 1,000 miles of line, but did not
survey every township or boundary line. The lines were protracted on the map in the General
Land Office. These township lines started at the New Mexico border and went south for
townships 1-10. The range lines were every 6 miles, forming, again, blocks 6 by 8 miles,
numbered from 53 to 82, from the Pecos to the Rio Grande. The land surveyed, however,
actually contained quite a bit of excess. The south line of the reservation was later found to be 4
miles too far south. The General Land Office authorized a resurvey in this area in 1883, which
forced 34,000 acres to be returned to the state. (The General Land Office still uses the Kuechler
map, with notations of differences in red).
In 1882, the Texas legislature realized that they have committed to awarding 8,000,000
more acres than they actually have left in the public domain, to the best that anyone could tell.
So, they repealed all railroad incentives. The T&P was fortunate in that it had already received
most of its sections, losing the right to only 5,760 sections.
In 1889, the Texas legislature passed an act that allowed for all excess in surveys or
blocks of surveys to be donated to the public school fund. From 1889 to 1938, all excess
68
acreage in blocks of sections was awarded to the state sections, the railroad sections confined to
640 acres. The General Land Office required corrected field notes prior to patenting evennumbered school sections in areas in which they suspected an excess acreage. “The result of this
scheme was to completely disregard the footsteps of the original surveyor and shatter the
continuity of the block by breaking calls for adjoiner, and in some cases, even calls for
monuments.”
69
70
71
The Texas Public Domain and Texas Inland Waterways
Streams and Riverbeds under Spanish Civil Law
At the most basic and elementary level, the Texas Registered Professional Land Surveyor
faces several questions when locating boundaries along streams and rivers. They can be
summarized, as follows, to-wit:
1. Is the waterway of such character that the State does not own the bed of the stream,
with riparian ownership extending to the center, or in some cases, across same?
2. Is the nature of the waterway such that it creates a boundary between the upland
riparian owner and the public, or State, ownership of the stream?
3. If the situation immediately above is found to be the case, then how does the Texas
surveyor locate the boundary between the riparian owner and the State ownership
of the riverbed?
The rest of this section will be an elaboration upon these simple questions and hopefully provide
direction for real-life situations in the field.
To understand the unique nature of Texas water boundary issues, one must first understand
and appreciate the fact that it was Spanish civil law, rather than English common law, that
governed Texas until 1840 (and thereafter as well, in certain significant areas.) But the sharp
distinction we often make between Spanish civil law and English common law should not be
overstated, as it was Roman civil law that undergirded both.
Roman civil law is the source for both the English common law and Spanish and Mexican
civil law relating to river beds. Consequently, many rules of law pertaining to river beds
are the same under both systems of law. However, on the question of who owns the beds
of public streams there has been disagreement over the correct interpretation of Roman
law….One group of writers interpreted Roman law to mean that public interest attached
only to the water and right to use it, and not to the land beneath it, while another group
construed Roman law to reserve to the sovereign the ownership of the beds of rivers and
streams. The first view was adopted in England and thus under the English common law
the sovereign retains title only to stream beds within tidewater limits. On the other hand,
72
most civil law jurisdictions have adopted the second view, i.e., that beds of streams are
publicly owned.9
Decisions handed-down by Texas courts have indeed noted the distinction maintained in
Spanish civil law between different types of waterways (Manry v. Robinson, Heard v. Town of
Refugio, McCurdy v. Morgan, etc.) Waterways that are described as perennial are those rivers
and streams in which the Sovereign retains ownership of the bed. They are contrasted with
streams that are described as torrential, in which the bed is privately owned by the riparian
owners. Kenneth Roberts describes them thusly:
“A perennial stream is generally considered to be one which flows all or most of the year
except in times of drought.”
“A non-perennial stream flows for only short periods after heavy rainfall.”10
Interestingly, this distinction is not delineated in Las Siete Partidas, the 13th-century
Spanish code which served as the basis of all colonial law in Texas. In fact, the document
implies that the sovereign retained title to all river beds. Spanish legal experts, as well as Texas
courts, have nevertheless understood the distinction to be applicable under Spanish law.
Consequently, for those Texas land grants made during Spanish and Mexican administration,
the general guidelines are as follows:


If the land grant is made along a perennial stream, then the State retains ownership of the
river bed and the banks of the waterway create a boundary between the Sovereign and the
riparian owners.
If the land grant is made along a torrential stream, then the State retains no ownership of
the river bed and the riparian ownership extends to the center of the waterway.
The case brought before the Texas Supreme Court styled State v. Grubstake Investment
Assocation reaffirmed the Sovereign’s ownership of the river bed. The court noted that in Las
Siete Partidas (Part 3, Law 31, Title 28), provision was made for the revision of abandoned river
beds to the riparian owners. The court reasoned that if the riparian owners already owned the
river beds, then there would be no reason to stipulate that the abandoned beds would revert to
them.
This distinction between perennial and torrential streams was first addressed by Texas
courts in Manry v. Robison (1932).
9
Roberts, Kenneth, “Title and Boundary Problems Relating to Riverbeds,” Report of the Seventh Annual Texas
Surveyors Association Short Course, Texas Surveyors Association, October 6, 1958, p. 24-25.
10
Ibid, p. 26.
73
Although we adopted the common law as a rule of decision in 1840, we have disregarded its
provision that the public right of navigation above tidewater was dependent on grant or custom,
and have applied the civil-law rule of navigability in fact….The obvious reason for these
departures from the common law is that our conditions were such, and our established
jurisprudence such, that the rules of the common law in the respects named were inapplicable.
To illustrate: England is a piuvial country where irrigation and general access to running water
are not matters of serious concern. Much of Texas, like Mexico and portions of Spain, is an arid
or semiarid region, where irrigation is highly desirable, sometimes a necessity, and access to
water for its vast herds of live stock a matter of great importance. The civil law, therefore,
which retained title to the beds of all perennial streams in the state, so that the impounding and
distribution of waters might be better effectuated, was better suited to our conditions than the
rule of the common law.
Millions of acres of
our lands had previously been
granted under the Mexican
law and the act of 1837. The
continuance of the civil-law
rule therefore avoided the
conflict and discrimination
which an application of the
common law to grants made
subsequent to 1840 only
would have entailed.11
Above: The Dry Frio River—perennial or torrential?
The Republic of Texas Act of December 14, 1837
In the second year of independence, the Republic of Texas modified the Spanish civil law
understanding of ownership of riverbeds.
All lands surveyed for individuals, lying on navigable water courses, shall front one-half of the
square on the water course and the line running at right angles with the general course of the
stream, if circumstances of the lines previously surveyed under the laws will permit. All streams
11
nd
Manry v. Robison, 56 S. W. 2 Series, p. 447.
74
so far as they retain an average width of thirty feet from the mouth up shall be considered
navigable streams within the meaning thereof, and they shall not be crossed by the lines of any
survey. All surveys not made upon navigable water courses shall be in a square, so far as lines
previously surveyed will permit.12
This act contains what is commonly known as the “30 Foot Rule.” By this legislation, the
Congress of the Republic of Texas clearly intended to ensure the equitable division of their water
resources. Land granted along rivers and streams after this date would no longer be governed by
the perennial vs. torrential river distinction. From this date onward, the criteria would be
“navigability in fact,” with that being defined as those waterways containing an average of thirty
feet in width.
What is not so clear is the terminology “from the mouth up.” This would place an
impossible burden on any surveyor trying to comply with this requirement. (Darrell Shine has
noted that the words “from the mouth up” were not in the original statute, nor in any revised
statutes as late as 1911, but were added by the legislature at a later date.)13 The common sense
solution to this dilemma would be to find the average of the stream within the boundaries of the
particular survey in question. This is in fact the position taken by most Texas courts in such
decisions as State v. Bradford, American Liberty Oil Company v. State, Bunnell v. Sugg, etc.14
This could present some interesting situations on the ground. For example, a major
stream (though less than thirty feet in width) could flow through a Spanish land grant where the
State would own the bed underneath, then pass from that land grant into a Republic of Texas
grant where the State would not own any interest in the waterway at all, and then pass from there
into a land grant made by Mexico where, once again, the Sovereign would own the stream bed
underneath.
In summary, four scenarios present themselves to the surveyor:
1. A survey was patented prior to December 14, 1837 and the adjoining stream is
perennial. In this case, the waterway is retained by the Sovereign and a boundary is
created with the State and the riparian owner.
2. A survey was patented prior to December 14, 1837 and the adjoining stream is
torrential in nature. In this case, the landowner’s boundary extends to the center of
the stream and the State has no interest in the bed of same.
12
Texas Civil Statutes, Article 5302.
Shine, Darrell D. and Nedra J. Foster, Texas Water Boundaries and Boundary Retracement Seminar, Tyler Junior
College, Tyler, Texas, December 2, 2011, p. 16.
14
Shine and Foster, p. 17.
13
75
3. A survey was patented after December 14, 1837 and the adjoining stream exceeds
thirty feet average width over its course along the land grant. In this case, the
waterway is retained by the Sovereign and a boundary is created between the State
and the riparian owner.
4. A survey was patented after December 14, 1837 and the adjoining stream is less than
thirty feet average width over its course. In this case, the riparian owner’s
boundary extends to the center of the stream and the State has no interest in the bed
of same.
The Relinquishment Act of 1929 (The “Small Bill”)
While the Act of December 14, 1837 specified that land grants were not to cross
navigable waterways, the fact of the matter is that many patents were issued for surveys which
did that very thing. Some worried that this situation could call into question the validity of these
grants, and the landowner’s good title. Legislation authored by State Senator C. C. Small, Jr.
remedied the situation in 1929. The act is generally referenced as the “Small Bill.”
Art. 5414a. VALIDATING PATENTS ON LANDS LYING ACROSS OR PARTLY
ACROSS WATER COURSES OR NAVIGABLE STREAMS.
Sec. 1. All patents to and awards of lands lying across or partly across water courses or
navigable streams and all patents and awards covering or including the beds or abandoned beds
of water courses or navigable streams or parts thereof, which patents or awards have been
issued and outstanding for a period of ten years from the date thereof and have not been
cancelled or forfeited, are hereby confirmed and validated.
Sec. 2. The State of Texas hereby relinquishes, quit-claims and grants to patentees and
awardees and their assignees all of the lands, and minerals therein contained, lying across, or
partly across watercourses or navigable streams, which lands are included in surveys heretofore
made, and to which lands patents or awards have been issued and outstanding for a period of ten
years from the date thereof and have not been cancelled or forfeited, and the State of Texas
hereby relinquishes, quit-claims and grants to patentees and awardees and their assignees all of
the beds, and minerals therein contained, or water courses or navigable streams, and also all of
the abandoned beds, and minerals therein contained, of water courses or navigable streams,
which beds or abandoned beds or parts thereof are included in surveys heretofore made, and to
which beds or abandoned beds, or parts thereof, patents or awards have been issued and
outstanding for a period of ten years from the date thereof, and have not been cancelled or
forfeited; provided that nothing in this Act contained shall impair the rights of the general
76
public and the State in the waters of streams or the rights of riparian and appropriation owners
in the waters of such streams, and provided further that with respect to lands sold by the State of
Texas expressly reserving title to minerals in the State, such reservation shall not be affected by
this Act; nor shall relinquish or quit-claim any number of acres of land in excess of the number
of acres of land conveyed to said patentee or awardees in the original patents granted by the
State, but the patentees or awardees and their assignees shall have the same rights, title and
interest in the minerals in the beds or abandoned beds, or parts thereof, of such water courses or
navigable streams, that they have in the uplands covered by the same patent or award; provided
that this Act shall not in any way affect the State's title, right or interests in and to the sand and
gravel, lying within the bed of any navigable stream within this State, as defined by Article 5302,
Revised Statutes of 1925.
Sec. 3. All of the provisions of this Act shall apply equally to all Spanish and Mexican
land grants and titles issued by the Spanish or Mexican Governments prior to the Texas
Revolution of 1836, which have subsequently been recognized by the Republic of Texas, or by the
State of Texas as valid.15
Acts 1929, 41st Leg., p. 298, ch. 138.
15
Vernon’s Civil Statues, Title 86: Lands-Public, Chapter 6: Patents,
http://www.statutes.legis.state.tx.us/Docs/CV/htm/CV.86.6.htm#5414a
77
78
79
The preceding is a good example of how the Relinquishment Act would work in practice.
In 1983, surveyor C. B. Thomson surveyed the J. B. New “East Half of Survey No. 1228” in
Kerr County for Yetta Weisenthal Edelstein et al. The original grant was described as 320 acres,
but upon Thomson’s re-survey it was found to actually contain 326.60 acres. The South Fork of
the Guadalupe River--clearly a legally navigable waterway—flowed through the survey and thus
the grant violated the language of the Law of December 14, 1837.
Along the East boundary line, Surveyor Thomson crossed the North bank of the river at
346.17 varas and the South bank of the river at 442.79 varas. Thus, on the East boundary line,
the river is 96.62 varas wide (268.39 feet). Along the West boundary line, Surveyor Thomson
crossed the South bank of the river at 1711.63 varas and the North bank of the river at 1772.45
varas. Thus, on the West boundary line, the river is 60.82 varas wide (168.94 feet). Averaging
these two widths of the river times the length of the waterway calculates to approximately 13.75
acres within the banks of the South Fork of the Guadalupe River. (Actually, this last acreage
figure is immaterial to the final calculation, as the riparian owners are entitled to exactly 320
acres and no more.)
As stated, the riparian owners can claim title for up to only 320 acres of land, while the
State will retain ownership of the remaining 6.60 acres. The centerline of the river was
surveyed, and those courses totalled 985.90 varas (2,738.61 feet) in length. The area of the 6.60
acres was calculated and then divided by the length. This resulted in a strip of land 37.8 varas
wide, or 18.9 varas on each side of the centerline. This area is described as a “save and except”
tract at the end of the description of the 326.60 acre tract. The description is placed in a Deed of
Acquitance that conveys title from the State to the riparian owner for all land other than the
aforementioned strip.
If the actual re-survey of the grant had shown that the true acreage was less than the
called acreage, then the riparian owner would have been entitled to the entire river bed. The
thrust of the Relinquishment Act is to validate title to surveys that cross rivers and convey
title to the riparian owner of all land up to the original called acreage, even if this were to
include the entire riverbed. It is important to note however, that the public’s right of use of
the water way is unchanged by this process.
80
Oklahoma v. Texas
The cases of United States v. Texas (1921) and Oklahoma v. Texas (1923), ultimately
decided in the Supreme Court of the United States, produced some of the most significant legal
and practical guidelines regarding Texas riparian boundaries. This protracted legal battle lasted
for three years. The court records eventually totaled nine volumes and 5,500 pages.16 The
implications of these cases are far-reaching, not only because of the fact issues involved, but also
because of the methodology employed and established thereafter for determining the riparian
boundaries in Texas. This method, known as the gradient boundary (of which more
following), soon became the accepted means by which the division between State owned land
and riparian ownership in Texas was determined.
In 1918, wildcat oil wells were drilled by Texas oilmen on the south side of the Red
River, as close to the water as possible. Representatives of the Kiowa, Comanche and Apache
tribes contended that the oil was being taken from underneath their land and demanded royalty
payments. Oklahoma brought suit against Texas in the U. S. Supreme Court, claiming that from
the middle of the river to the south bank was Oklahoma land. Motivated by increased oil and gas
activity, the states of Texas and Oklahoma came to differing interpretations of their common
boundary along the Red River. This line was established by the Adams-de Onis Treaty of 1819
between the United States and the Kingdom of Spain. Texas claimed that the line between the
two states was along the thread of the river. Oklahoma claimed that the boundary was along the
south bank of the Red River, a considerable difference in many instances. Neither side
questioned the validity of the 1819 language, only its meaning.
Article 3. The boundary line between the two countries, west of the Mississippi, shall begin on the Gulph
of Mexico at the mouth of the River Sabine, in the sea, continuing north, along the western bank of that
river, to the 32d degree of latitude; thence, by a line due north, to the degree of latitude where it strikes
the Rio Roxo of Nachitoches, or Red River; then following the course of the Rio Roxo westward, to the
degree of longitude, 100 west from London and 23 from Washington; then, crossing the said Red River,
and running thence, by a line due north, to the River Arkansas; thence, following the course of the
southern bank of the Arkansas, to its source, in latitude 42 north, and thence, by that parallel of latitude,
to the South Sea. The whole being as laid down in Melish's map of the United States, published at
Philadelphia, improved to the first of January, 1818. But, if the source of the Arkansas River shall be
16
Rounds, Will A., The Gradient Boundary, Report of the Third Annual Texas Surveyors Association Short Course,
Austin, Texas, October 11, 1954, p. 27.
81
found to fall north or south of latitude 42, then the line shall run from the said source due south or north,
as the case may be, till it meets the said parallel of latitude 42, and thence, along the said parallel, to the
South Sea: all the islands in the Sabine, and the said Red and Arkansas Rivers, throughout the course thus
described, to belong to the United States, but the use of the waters, and the navigation of the Sabine to
the sea, and of the said rivers Roxo and Arkansas, throughout the extent of the said boundary, on their
respective banks, shall be common to the respective inhabitants of both nations.17
Oklahoma interpreted the treaty language to mean that the line extending due north from
the 32nd degree of latitude would stop when it “strikes” the Rio Roxo, meaning the first reached,
or south bank of the river (similar to how the line had followed the west bank of the Sabine River
to the 32nd degree of latitude). Their view was bolstered by the description of the line once the
100th degree of latitude had been reached: “then crossing the said Red River.” Oklahoma
contended that one could not proceed north and cross the river without first being on the south
side of the river.
Texas rejected this interpretation. Their opinion placed greater emphasis on the language
near the end of Article 3. They interpreted that the usage of the waters “shall be common to the
respective inhabitants of both nations” meant that the Red River itself was to be divided between
the two nations, thus placing the true boundary in the thread of the stream.
The major conclusions of the Supreme Court of the United States in this matter are
summarized as follows:
1. The boundary line between the States of Texas and Oklahoma along the Red River, as
determined by the Treaty of 1819 between the United States and Spain, is along the southerly
bank of the stream.
2. There is a material difference between taking the bank of a river as a boundary and taking the
river itself.
3. The bank intended by the treaty is the water-washed and relatively permanent elevation or
acclivity at the outer line of the river bed, which separates the bed from the adjacent upland,
17
Oklahoma v. Texas, 260 U.S. 606 (1923)
82
whether valley or hill, and serves to confine the waters within the bed and preserve the course of
the river.
4. The boundary intended is on and along this bank at the average or mean level attained by the
waters in the periods when they reach and wash the bank without overflowing it.
5. The bed includes all of the area which is kept practically bare of vegetation by the wash of the
waters of the river from year to year in their onward course, although parts of it are left dry for
years at a time, but excludes lateral valleys having the characteristics of relatively fast land and
usually covered by upland vegetation, although temporarily overflowed in exceptional instances
when the river is at flood.
6. The provisions of the Treaty of 1819, supra, that "the use of the waters, and the navigation of
the Sabine to the sea, and of the said Rivers Roxo [Red] and Arkansas, throughout the extent of
said boundary, on their respective banks, shall be common to the respective inhabitants of both
nations," doubtless reserve and secure right of access to the water at all stages for enjoyment of
the permitted use (the part of Red River now in question, however, is not navigable), but they
afford no reason for regarding the boundary as below the bank or within the riverbed.
7. Applying the treaty to the physical situation here revealed by the evidence, the Court finds that
the boundary should be located along the southerly of the two water-worn banks designated as
the "cut banks," which separate almost uniformly the sand bed of the river from land in its
valley, on either side, overflowed at times, but having the physical characteristics of upland, and
which has heretofore been dealt with as such by the United States and Texas, respectively.
These findings actually came out of the case of United States v. Texas (1921). In
summary, this case decided the issue of whether the boundary was the thread of the stream
claimed by Texas or the south bank claimed by Oklahoma. The Supreme Court of the United
States ruled that it was the latter. The subsequent lawsuit dealt with determining what exactly
was the “south bank,” and in the course of that determination, how would it be measured?
The purport of that opinion was embodied in an interlocutory decree of June 1, 1921,
which also made provision for taking additional evidence and for a further hearing to determine
83
what constitutes the south bank, where along that bank the boundary is, and the proper mode of
locating it on the ground -- these being matters on which the parties were unable to agree. 18
Oklahoma and the United States contended “that the bank and boundary are at the foot of
a range of hills or bluffs which fringes the south side of the valley through which the river runs.”
Texas contended that the boundary was at the “low water mark” on the south side of the river, or
in other words, the edge of the water “at that usual and ordinary stage in which it is found during
most of the year.”
A Typical View of the Red River
18
Oklahoma v. Texas, 260 U.S. 606 (1923)
84
The Supreme Court, however, again rejected the arguments made by the State of Texas.
….we hold that the bank intended by the treaty provision is the water-washed and relatively
permanent elevation or acclivity at the outer line of the river bed which separates the bed from
the adjacent upland, whether valley or hill, and serves to confine the waters within the bed and
to preserve the course of the river, and that the boundary intended is on and along the bank at
the average or mean level attained by the waters in the periods when they reach and wash the
bank without overflowing it. When we speak of the bed, we include all of the area which is kept
practically bare of vegetation by the wash of the waters of the river from year to year in their
onward course, although parts of it are left dry for months at a time, and we exclude the lateral
valleys, which have the characteristics of relatively fast land and usually are covered by upland
grasses and vegetation, although temporarily overflowed in exceptional instances when the river
is at flood.
The Court then turned to the specific and particular topography upon which this bank was
to be located and the boundary applied. In summation, “in a series of rulings…between the years
1921 through 1924, the Supreme Court handed down these rulings:
1) A cut bank is the relatively permanent elevation of a river that separates the bed from the
adjacent upland;
2) Cut banks are permanent and stable enough to serve as fixed boundaries; and
3) For the purposes of fixing the boundary, the south bank is the cut bank of the Red River and
thus forms the legal boundary between Oklahoma and Texas.” 19
The practical determination of this last described “cut bank” gave rise to the methodology
of the gradient boundary. Although this particular boundary was originally that between the
United States and the Kingdom of Spain, and later between the State of Texas and the State of
Oklahoma, Texas courts consistently maintained that the gradient boundary method be employed
in any case that might arise concerning riparian ownership within the state.
While neither Texas nor Oklahoma questioned the ultimate Supreme Court decision, it
became obvious that additional efforts were need to determine the exact boundary. In 1991, the
legislatures of both states created the Red River Boundary Commission. After many public
meetings, on both sides of the river, the Commission submitted proposed legislation in both state
19
http://digital.library.okstate.edu/encyclopedia/entries/T/TE025.html
85
legislatures “designating the vegetation line along the south bank of the Red River extending on
a line from the 100th Meridian east to Lake Texoma as the northern border of Texas.” In the
Texoma area, the boundary would extend from “…the intersection of the vegetation line on the
south bank with the east bank of Shawnee Creek and continues to the foot of the Denison Dam.”
The legislation also called for the marking of the line with permanent monuments. Both states
adopted the legislation in 1999 and on August 31, 2000, Congress adopted this Red River
Boundary Compact as federal law by joint resolution.20
The controversy over the Red River boundary, however, refuses to go away.
Interestingly, as the Compact recognized, “Land between the south bank and the meridian line of
the river belongs to the Kiowa, Comanche, and Apache tribes and is held in trust by the federal
government. The riverbed north of the meridian line belongs to the state of Oklahoma.”21 And it
is now this strip between the middle of the river and the “vegetation line” on the south bank—
managed by the U. S. Bureau of Land Management—that is brewing controversy.
All parties agree that as the bank moves with the river, so does the boundary. The
question concerns avulsive changes where the boundary does not move. Oklahoma defines an
avulsive change much broadly than does Texas or the U.S. For decades, land south of the river
has been conveyed as the river shifted north, with the owners believing their title extended to the
south bank. In the early 1980s, Oklahoman Buck James brought suit against the Langford family
over the latter’s 900 acres on the south side of the river.
Oklahoma courts awarded James the land, ruling that the river had moved through
avulsion during a 1908 flood, meaning that the Texas boundary had not moved toward
Oklahoma. A federal appellate court upheld the decision. The U.S. Supreme Court refused to
hear the case, and the Langfords never had the chance to present evidence showing that two
surveyors testified in 1925 that they found “no avulsive changes” in Clay County or across the
river in Oklahoma. Nor did the Langfords have the chance to argue that the courts should have
used the U.S. definition of avulsion, rather than Oklahoma’s broader one.22
20
Ibid.
http://digital.library.okstate.edu/encyclopedia/entries/R/RE008.html
22
http://www.texastribune.org/2014/04/28/blurred-lines-texas-blm-spat-has-complicated-histo/
21
86
Subsequent Oklahoma court decisions awarded other land on the “Texas side” of the river,
even though the land was described in deeds when the property was purchased. The Oklahoma
court did not require a new survey, but simply extended the lines from the previous ruling to
include another 140 acres. The Bureau of Land Management then got into the act and based on
the Oklahoma courts’ actions, began to estimate the acreage that the federal government
controlled between the middle of the Red River and the northern boundary of Texas. State
officials inquired why they did not just recognize the vegetation line, to which the BLM
responded that they recognized that as only jurisdictional and political boundaries, and did not
affect property lines. Since the land has not been surveyed, the exact acreage in question is not
known. The BLM estimates, however, that approximately 90,000 acres are involved, along a
116-mile stretch of the river. This includes areas that, according to Oklahoma sources, have
been changed by avulsion. In the BLM’s view, “the land in question belongs neither to Texas
nor Oklahoma, regardless of who has used it. The lands ‘were at no time held in private
ownership.’”
Texas politicians have responded as one would imagine: “At a minimum, they are
overreaching, trying to grab land that belongs to Texans…Or worse, they are violating due
process rights by just claiming that this land suddenly belongs to the federal government,
swiping it away from Texas.” One elected official taunted the BLM with the warning of “Come
and take it.”23
One interesting application of the gradient boundary theory is the recent Texas Supreme
Court ruling in Brainard v. Texas. This is a relatively recent case involving the location of the
gradient boundary along the Canadian River in the Texas Panhandle. The plaintiffs included
some well-known Texans: the Whittenburg ranching family and the T. Boone Pickens family. 24
Both the plaintiffs and the State engaged the services of noted Texas Licensed State Land
Surveyors, with each presenting markedly differing versions of the exactly where the gradient
boundary should be located.
23
http://www.texastribune.org/2014/04/28/blurred-lines-texas-blm-spat-has-complicated-histo/
24
Brainard v. Texas, No. 98-0578, October 7, 1999. http://caselaw.findlaw.com/tx-supreme-court/1079280.html
87
The Plaintiffs included about thirty 30 different landowners along a sixteen-mile stretch
of the Canadian River in Roberts and Hutchinson Counties. The waterway had always been a
shallow affair, particularly in the dry season, often reduced to little more than a trickle in places.
The State’s interest had been in the very wide bed of the river, as the water flow changed course
often between the two banks. The banks were widely-spaced, even for rivers of this nature. The
distance between the two banks was often around 3,400 feet. That is, until 1965. In that year,
the Sanford Dam was finished on the Canadian River, creating Lake Meredith. Water from the
upper part of the river no longer flowed downstream from the dam. The river below the dam
was reduced from a wide-ranging body of water that could wash upon either shore into only a
small rivulet, confined to one particular bed, perhaps thirty to sixty feet in width.
The Canadian River Valley which suggests the breadth of the old river banks
Also, the much-reduced flow of the river encouraged the growth of vegetation and
underbrush in what had formerly been the washed river bed. The state contended that the
sudden, or avulsive nature of the change meant that the gradient boundary remained in its
historic position, along the outer banks of the river basin—even though the river did not change
88
courses so much as it contracted. The plaintiffs argued that it was the water flow itself that
determined the banks of the river and thus the gradient boundary.
The parties disagree about whether conditions on the Canadian River that were brought about
or influenced by the closing of the Sanford Dam in 1965 should be considered by surveyors in
marking the present-day gradient boundary of the Canadian River. The State contends that the
location of the gradient boundary between the State's riverbed and the private riparian land
must be determined by the last “natural” bed of the Canadian River, as it existed before the
operation of Sanford Dam. The Landowners argue that the location of the gradient boundary
must be marked along the “present” bed of the Canadian River, as it exists today.25
The trial court decided in favor of the Plaintiffs, finding that the riparian owners were
“entitled to have their land abut and be washed by the present flow of water.” The court ruled
that the landowner’s survey marked the boundary between the State and the riparian owners.
Upon appeal, their ruling was reversed, and the matter ultimately made its way to the Texas
Supreme Court.
The Court ruled that as long as the plaintiff’s had no part in the changes effected by the
artificial structure (a dam, in this case), then they must be considered in marking the gradient
boundary of the river. Indeed, the survey of the gradient boundary must account for the present
conditions of the Canadian River.
In 1987, the General Land Office had notified the landowners in the area that they would
be surveying the gradient boundary which designated the boundary between the State’s land and
riparian ownership. Moreover, they specified that they would be locating the “historical gradient
line prior to any changes in the review caused by dams or other man-made alterations.”26 In a
previous notification, the State outlined their stance in a position paper:
From the time the land abutting the Canadian River was patented, the state has owned the
riverbed․As the river changed naturally, the boundary between state and private land moved
along with any resulting changes in the gradient boundary. When the floodgates of the Sanford
Dam were closed in 1965 the river began to change noticeably. But the boundary between
state and private land did not change with it because the changes were caused by the dam and
other human activity. The legal boundary remains as it was prior to construction of the dam.
25
26
Brainard v. Texas
Brainard v. Texas
89
The State’s position became known as the “artificial change” theory, based on the belief
that any change resulting from human activity should not be considered when establishing the
gradient boundary. The Landowners met with the General Land Office, but without resolution.
Shortly afterwards, the Landowners brought suit against this action. They presented their own
survey, which showed that the riverbed between the gradient boundaries was no more than 20 to
50 feet in width, in contrast to the State’s artificial change theory of approximately 3,400 ft. The
trial court found in favor of the Landowners.
Upon appeal, the Court of Appeals ruled that the State’s gradient boundary survey could
not be dismissed. After the Plaintiffs appealed the Court of Appeal’s decision, the court had to
resolve a question of conflicting legal theories. In short, was the artificial change theory an
accepted method for determining the boundary between riparian ownership and State ownership?
The State argued that the construction of the dam caused a sudden and “clearly
discernable” change in the bed. Under traditional rules of riparian ownership, the landowner
would obtain title to the former riverbed only if the changes were “gradual and imperceptible.”
The Landowners countered that the construction and operation of the dam “did not suspend or
otherwise affect the application of normal rules of law for determining boundaries of riparian
lands.” They continued that because the State’s survey sought to find a “historical gradient”
prior to the dam, that it effectively disregarded present changes in the riverbed. “Thus, the
State’s survey is premised on an incorrect theory of law,” and that accreted and relicted land
along a river vested in the riparian owners “regardless of whether the changes in a river’s
course…are due to natural or artificial causes.” In other words, the river didn’t change course, it
narrowed course.
The Texas Supreme Court noted the methodology involved determining two basic
factors: the key bank and the gradient, or rate of fall of the water and that the key bank was “the
water-washed and relatively permanent elevation or acclivity at the outer line of the river bed
which separates the bed from the adjacent upland…and serves to confine the waters within the
bed and to preserve the course of the river․” And that this boundary line was “a gradient of the
flowing water in the river,” located halfway between the lowest level where the flowing water
first touches the bank and the highest point where the water reaches the top of the bank without
90
overflowing it (Oklahoma v. Texas). “The bed of a stream is that portion of its soil which is
alternatively covered and left bare…and which is adequate to contain it at its average and mean
stage… (Motl v. Boyd). The court also referenced the definition of a riverbed from Oklahoma v.
Texas. The Court rejected the State’s artificial change theory and found for the plaintiffs. The
Court also took issue with the State’s survey, noting that “this type of situation calls for, and our
holding requires, a present-day survey that marks the boundary as it exists today, rather than as
of a date before Sanford Dam was closed.” The survey, at least in part, was based on the plotting
of old aerial photographs taken before the dam was constructed, and as such, did not constitute
the methodology outlined in a gradient boundary survey. In fact, the State’s surveyor had to “recreate a water line,” where none now existed.27.
The Canadian River after 1965
27
Ibid.
91
The Gradient Boundary
I am indebted to the late Darrell D. Shine, as well as Nedra J. Foster for what
understanding I do have of the Gradient Boundary method. On December 2, 2011 they
presented a seminar at Tyler Junior College on Texas Water Boundaries. I came away from their
session with a much more insight into what comprises the Gradient Boundary.
The material
offered here is, in large part, a summation of Shine and Foster’s presentation.28
The Gradient Boundary Theory emerged from the report of the boundary commissioners
of the famous Red River case, Oklahoma v. Texas. On January 15, 1923, Mr. Justice Van
Devanter of the U. S. Supreme Court set out the original legal authority of the Gradient
Boundary.29 As Roberts notes, “Since the decision in Oklahoma v. Texas, the Texas courts
have uniformly held that the gradient boundary is the dividing line between public owned river
beds and privately owned riparian grants in Texas.”30 Moreover, Texas courts have routinely
applied the theory and found it applicable to all grants, whether made before 1837 or afterwards.
And as Roberts also observes, the gradient boundary is usually a low boundary, which gives the
maximum amount of land possible to the riparian owners.
The question sometimes arises as to the relationship between the Gradient Boundary and
the Thirty-Foot Rule used to determine legally navigable waterways. In short, if there is a
question of law about whether the thirty-foot rule is applicable in a particular situation, then it
will be the determination of the gradient boundary that settles the question.
Again, from Roberts:
…the adoption of the gradient boundary theory in Texas has undoubtedly altered the attitude of
the courts toward the application of the thirty-foot rule. The…cases of Motl v. Boyd and Heard
v. Town of Refugio discuss in some detail the application of the thirty-foot rule, but the language
used in describing the points between which measurements should be made is somewhat
confusing. Nevertheless, both of these cases support the gradient boundary theory, and it can be
concluded that the court intended in …[these cases] to adopt the gradient boundaries as the
28
Shine, Darrell D. and Nedra J. Foster, Texas Water Boundaries and Boundary Retracement, Surveying Education
Foundation of Texas (SEFT) and Chapter No. 4 of the Texas Society of Professional Surveyors, Tyler Junior College,
Tyler, Texas, December 2, 2011.
29
Rounds, Will A., “The Gradient Boundary, “ Report of the Third Annual Texas Surveyors Association Short Course,
Austin, Texas, October 11, 1954, p. 27.
30
Roberts, p. 35.
92
points to be measured. This result makes the thirty-foot statute consistent with the adoption of
the gradient boundaries as the dividing line between public and private land, and such an
interpretation of the statute seems to be by far the most reasonable.31
Broadly speaking, the Gradient Boundary consists of two main components:
1. The Qualified Bank
2. The Gradient of the Flowing Water
In any particular stream, one may encounter multiple banks. Some rivers have high bluffs.
Others contain islands. One may find transverse slopes and cut banks. Then, there are low
alluvial banks. And often, behind these lie secondary alluvial banks. So which is the qualifying
bank? The correct bank is the lowest accretion, the lowest alluvial bank—the first bank, if you
will. This is the subjective call that the Gradient Boundary surveyor is called to make. If the
correct bank is identified, then the gradient boundary determinations by different surveyors will
vary only minutely. If the incorrect bank is identified, then the data is wrong from the beginning.
This low alluvial bank is “built from material conveyed and deposited by the water in the
stream….The accretion bank is fundamentally consistent because the material composing it
cannot be deposited above the level of the water conveying it.”32 The bank must be welldefined, stable, and not eroding away. If more than one qualifying bank is found, the preference
is to use the lowest. As noted by Col Stiles:
Finding the one correct bank in the vicinity that locates the gradient boundary on the ground is
no casual undertaking. If this bank is wrong, the whole boundary is wrong on both sides of the
river. Once established, the gradient boundary permits no subsequent corrections or
adjustments in the line. The boundary is either right or it is wrong in the first instance
depending upon the correctness of this one lowest bank which is the basis of the gradient
boundary.33
31
Roberts, p. 36.
Shine and Foster, p. 27.
33
Shine and Foster, p. 27.
32
93
The qualifying bank is critically important. “No two streams are exactly alike and yet the bank
forming characteristics will follow a definite pattern, but only a long and careful study of a
particular stream will bring out the fine points of the pattern that affects that stream.”34
The Gradient Boundary should be determined from an accretion bank, rather than an
erosion bank. “The erosion bank is the bank that was, not the bank that is.”35 Once the qualified
bank is determined, then the low bank and the high bank must be identified.
The bottom of the bank is indicated by the vertical consistency of the edge of the stream bed and
the bottom of the adjacent bank; by
the washing of the stream against
the bank at prevailing low states;
by the edge of the bare sand,
gravel, small stones worn smooth,
rock or mud composing the bed of
the stream contrasting with the
more conglomerate material soon
dead out of the water compared
with the upland vegetation on the
land side of the bank which is soon
dead in the water. 36
The top of the qualifying bank is
the highest level washed by the
river.
Once the bottom and top of
the qualifying bank have been
located, then the gradient of the
flowing water must be determined.
This datum fixes the gradient
boundary on the ground. If there is no flowing water, then the gradient cannot be determined, as
there is no equivalent to the flowing water. The boundary to be established must always be a
gradient of the flowing water. If there is a water line mark on the bank, then that serves as the
true datum of the gradient boundary on the ground, and eliminates the need for stream gauges.37
The gradient boundary can be correctly located on the ground in only one way, as follows:
every point on the gradient boundary is independent of every other point; hence, for every
34
Rounds, Will A., “The Gradient Boundary, “ Report of the Third Annual Texas Surveyors Association Short Course,
Austin, Texas, October 11, 1954, p. 29.
35
Ibid, p. 27.
36
Shine and Foster, p. 28.
37
Rounds, p. 27.
94
individual point to be located on the boundary, the level must be used to measure the required
vertical distance from the surface of the flowing water to the gradient boundary on the bank.
There is no substitute for this procedure….Every point set on the gradient boundary represents a
separate operation in surveying. Every gradient boundary point is independent of every other
point. The boundary bank is ever subject to changes by erosion and accretion, and the gradient
boundary follows the changes. Where the bank is, there is the boundary also.
If, for example, the elevation of the flowing water in a river is determined by a gauge to
be 525.50 ft. above sea level. The elevation of the bottom of a qualifying bank is determined to
be 527.00 ft. (or 1.5 feet above the flowing water elevation.) The elevation of the top of the
qualifying bank is determined to be 530.00 ft. (or 3.0 feet above the water). Splitting the
difference in elevation between the top and bottom of the banks puts the elevation at 528.50 ft.
(or 3.0 ft. above the flowing water elevation). Individual points along the gradient boundary
along the bank could be established at any point measured 3.0 feet higher than the flowing water
elevation.
Darrell Shine related how different gradient boundary surveys, performed by different
surveyors at different times, have resulted in almost identical results. He re-emphasizes the
necessity of accurately locating the qualifying bank in the initial phase of the survey. The
Gradient Boundary, however, is controlled by the actual flow of the water, it remains in one
position only as long as the stream remains in that position.38
The height and position of the Gradient Boundary are fixed by the bank of the river; the
grade is fixed by the surface of the water in the river; and the course is fixed by the topography
along the river.39 And in conclusion, it is perhaps more than a little ironic, that the Gradient
Boundary method—used throughout the state but having its genesis in the Red River case—is
now, following the Red River Compact of 2000, no longer used to determine the northern
boundary of Texas.
A final word needs to be said about the relationship of the Gradient Boundary to meander
lines along navigable watercourses. In truth, what we do in the normal exercise of our profession
is survey meander lines along watercourses. In the normal course of events, a gradient boundary
38
39
Rounds, p. 30
Rounds, p. 27.
95
survey is seldom required. A plat and field note description, enclosing an acreage and citing the
meander calls along the river or creek is prepared. The actual boundary between riparian
ownership and the State’s ownership, however, is at the gradient boundary line, not the meander
line (see McCombs v. McKaughen).
The various gradient boundary points along a river bank can be connected with meander
lines. But even here, the true boundary is on the gradient between those two points, reflecting
the sinuosities of the watercourse, and not necessarily on a straight meander line connecting the
gradient points that were established.
Texas Coastal Waterways
When discussing the coastal boundaries of Texas, four main categories of questions come under
consideration:
1. What exactly is the shore line, and where is the boundary which marks the line
between the State and its grantees?
2. How does accretion affect this line?
3. What are the boundaries of a beach?
4. What is the line between the State’s lands and those of the United States under the
Submerged Lands Act of 1953?40
I.
Shore Line Determination
In, Texas, the location of the shoreline depends on the date of the original grant. In 1840,
the Republic of Texas adopted common law. So, for grants along the coast of Texas made after
that date, the determination is the common law methodology of the mean high tide. This is
figured as an average of all the mean high tides over a period of 18.6 years.
If the grant was made by Spain, by Mexico, or by the Republic of Texas prior to 1840,
then the determining factor would be the mean higher high tide, as this was the practice under
Spanish civil law. As stated in Las Siete Partidas 3, Title 28, Law 4: “And all that ground is
40
Pope, Jack. The Shores of the Sea, unpublished manuscript, p. 7.
96
designated the shore of the sea which is covered with the water of the latter at high tide, during
the whole year, whether in winter or in summer.”
In theory, this obviously places the civil law interpretation further inland. In practice, the
vertical difference is minimal between these two methods—averaging no more than a tenth of a
foot. Along the coastal mud flats however, the horizontal distance between the two may be
substantial.
The decision in Luttes v. State (of which more later) removed much of the uncertainty
regarding the boundaries of coastal Spanish civil law land grants. This case fixed a rule in which
the location can be determined with certainty. Indeed, the Luttes case corrected several
misunderstandings, including:
1. Water levels attributable to wind, temperature and atmospheric pressure, nonastronomical factors, are not tide.
2. The highest reach of the water or wash of a wave during the year is not the shore line.
3. An average of the single highest reach of the tide for each of several years is not the
shoreline.
4. The so-called highest tide during the winter time or any other season is not the shore line.
5. The visble “bluff line” or vegetation line has been rejected as the line of mean high tide.
I hasten to add, however, that this may approximate the line though it is not the legal
test.41
Instead, the Luttes case settles that the elevation of the tide is the determinate that locates a shore
line. And significantly, it must be the tides relationship to the cycles of the moon and not winds
that must be measured and averaged.
II.
Accretions
Accretions certainly impact the determination of shore lines. Regarding accretions,
Justice Jack Pope writes:
If the “new land” began forming at the bottom of the sea, bay, lake, or littoral boundary, i.e., if it
began at the bottom of the sea, bay, lake, or river, the title to the accretion is in the owner of the
beginning point, usually the State, whether or not the “new land” subsequently attaches to the
riparian or littoral land. In other words it is the bottom that has accreted and not the shore.42
Two significant (and somewhat contradictory) lawsuits between littoral land owners and the
State of Texas shed light on both the specific subject of accretions, and the larger question of the
41
Ibid. p. 8.
Ibid. p. 9.
42
97
determination of the shore line: Luttes v. State (1958) and John G. & Stella Kenedy Memorial
Foundation v. Dewhurst (1999).
A. Luttes v. State (1958)
This case involved title to 4,086.61 acres (and the mineral interest thereto) of mud flats
adjoining the seaward line of the Potrero de Buena Vista Grant on the Laguna Madre in Cameron
County, Texas.43 The plaintiffs claimed title to the acreage, asserting that it was an accretion to
the eastward face of the grant, along the Laguna Madre.
Admittedly, the mud-flats area in controversy was not a part or portion of the original Mexican
Grant mentioned, such area in its then condition being a part of the bed or shores of the Laguna
Madre. However, it is the position and contention of the Plaintiffs herein that since the original
grant of land was made, such mud flats area, as the same now exists, has been added to the open
face of said original grant of land fronting on the Laguna Madre, through the slow and gradual
process of accretion and reliction and that such area has thereby become a part of the Texas
mainland and such lands so covered by said Mexican Grant, lying to the West of such mud-flats
area."The question primarily to be determined, therefore, is whether any portion of said mudflats area involved has in fact, through accretion and reliction, become a part of the Texas
mainland, and if so, the portion thereof that has so accreted to said mainland and so become a
part of the property owned by the plaintiffs."On the trial of this cause before the Court without
the intervention of a jury, the Court concluded that such mud-flats area involved had not been
shown to have accreted to the mainland, as contended for by plaintiffs, and that such area has
not in fact become a part of such mainland, and is not in fact `fast land,' but remains a part of
the bed and shores of the sea, and hence belongs to the State of Texas.44
The Court determined that the Civil Law was in effect at the time of the Buena Vista
Grant in 1829 and accordingly, under this law the seashore was defined as “all that
ground…covered with water of the sea during the whole year, whether in winter or in summer.”
In other words, the boundary would be the line reached by the year’s highest wave during normal
weather conditions. The Court reasoned that this would be at an elevation that would cover the
contested area, and in fact the sea waters of the Laguna Madre do in fact do so from time to time.
Finally, the court concluded:
The build-up of the flats area has been in great part from the bed up and not from the mainland
out, with a substantial portion of such build-up of such area having resulted from the throwing
43
44
nd
Luttes v. State. 289 S. W. 2 . 357 . (324 S. W. 2nd. 167.)
Ibid.
98
up of the spoil banks of the artificial channels to the North and the East of such area and the
subsequent washing away and blowing away of said banks and the deposit of such material on
the flats area, and such buildup does not represent accretions to the mainland.45
The court noted that “any distinction that can be drawn between the alluvion of rivers and
accretions cast up by the sea must arise out of the law of the seashore…and be based…upon the
ancient maxim that the seashore is common property and never passes into private hands.”46 The
court determined that the build-up of land had occurred during the preceding 40 years, and
originated either on the island or between the island and Luttes’ property. The court did not
specifically address the issue of whether the private landowner could claim land by accretion
resulting from human activity (in this case, the bridge to Horse Island and the construction of the
Intracoastal Canal and the Harlingen Ship Canal. Most of the 4,000+ acres was formed between
1925 and 1953. In conclusion, the Court decreed:
1. “We sustain the contention of the plaintiff that the applicable rule of the Mexican law is
that of the average of the highest daily water computed over or corrected to the regular
tidal cycle of 18.6 years. This means in substance ‘mean high tide.’
2. The Court’s held the Spanish law which is the mean higher high tide as compared to the
mean high tide of the Anglo-American law.
3. Since the mud flats in question belong to the State of Texas as the sea bottom, the burden
rested the plaintiffs to prove that the flats were true accretion. Mud flats belong to the
State.47
In time, the Court’s identification of the seaward limits of littoral ownership would raise
important questions about the public’s use and access of Texas beaches.
B. John G. & Stella Kenedy Memorial Foundation v. Dewhurst (1999)
The issue of accretions became the subject of another coastal lawsuit, this time in Kenedy
County. The depth of the Laguna Madre is two feet or less in most places. Wind-driven tides
cause much of the laguna to be dry at times and inundated at others. The Intracoastal Waterway,
constructed by the US Army Corps of Engineers in the 1930's, runs the length of the laguna and
allows for navigation. A “land cut”, however, is often totally exposed, all the way to Padre
45
Ibid.
Ibid.
47
Ibid.
46
99
Island. In some seasons of the year it is
covered with water - in other seasons it is
dry mud flats, encompassing about 35,000
acres.
The John G. and Marie Stella
Kenedy Memorial Foundation own the
235,000 acre ranchland to the west of the
land cut, a bequest of Sarita Kenedy East.
The Foundation argued that the land cut,
under the rules for location of the shore
boundary established by the Texas
Supreme Court in Luttes, was dry land and
part of the original Spanish and Mexican grants making up the Kenedy Ranch. Conversely, the
State argued that the land was part of the bed of the Laguna Madre, owned by the State. At stake
were the mineral rights under the vast acreage. The trial court found in favor of the State, and
this verdict was later upheld by the Court of Appeals. And, in December, 2000, the Supreme
Court of Texas affirmed. The
Kenedy Foundation persisted,
however, and convinced the Court to
rehear the case. In 2002, a new
Court reversed its previous decision
(with three dissensions) and found in
favor of the Foundation. In effect,
the Court ruled that the "shore" of
the Laguna Madre adjacent to the
Kenedy Ranch lies along the edge of
the man-made Intracoastal
Waterway. As this Foundation map
100
indicates, they littoral owners are now claiming the 35,000 acre mud flat—up to the Intracoastal
Waterway itself—as part and parcel of their acreage.48
III.
Boundaries of Beaches
After the Luttes case, the shore line that divided the State’s land from the littoral property
owners could be determined with accuracy. The State then found it necessary to define locate
the public beach, the boundaries of which neither conformed to the mean high tide nor the mean
higher high tide. From the Natural Resources Code:
The public…shall have the free and unrestricted right of ingress and egress to and from stateowned beached bordering on the seaward shore of the Gulf of Mexico, or such larger area
extending from the line of the mean low tide to the line of vegetation bordering on the Gulf of
Mexico, 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 continuous right in the public.
And:
The title of the littoral owner does not include the right to prevent the public from using the area
for ingress and egress to the sea; there has been imposed upon the area subject to proof of
easement a prescriptive right or easement in favor of the public of ingress and egress to the
sea.49
The line of vegetation has been described as “the extreme seaward boundary of natural
vegetation which spreads continuously inland.” While at first glance this delineation seems
rooted in common sense, Justice Pope described the practical determination of this line as “a
monster in no disguise.”50
This understanding came to an end in 1958 when the Texas Supreme Court in Luttes v. State
ruled that the state only owned the wet sand portion of the beach and that private landowners
possessed ownership rights over the dry sand portion above the mean high tide line. The Luttes
ruling shocked the public and generated sufficient public political pressure to force the Texas
Legislature to enact the Texas Open Beaches Act (TOBA) the following year. The Act specifically
provides that it shall be the state’s public policy that “the public shall have the free and
48
McFarland, John. “House Bill 325 to Amend Open Beaches Act,” April 1, 2013,
http://www.oilandgaslawyerblog.com/2013/04/house-bill-325-to-amend-open-b.html
49
Ibid.
50
Pope, p. 13.
101
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.” Any public easement is
conditioned upon a showing that “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 . . . .” Additionally, the public’s right of access is protected by prohibiting persons from
“creat[ing], erect[ing], or construct[ing] any obstruction, barrier, or restraint” that interferes
with the public easement. It is important to note that TOBA applies only to the approximately
367 miles of beaches bordering the Gulf of Mexico and does not apply to the approximately
3,300 miles of tidal bay-facing shores in the state. 51
A. The Texas Open Beaches Act (1959)
After the Luttes decision, legitimate concern arose as to the public’s continued right of
access to Texas beaches. Prior to this, a general assumption prevailed that the shore line—the
public beach area--started at the vegetation line. In response, the State Legislature passed the
Texas Open Beaches Act in 1959.
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.52
The “line of vegetation” was described as “the extreme seaward boundary of natural vegetation
which spreads continuously inland.” Public beach was described as “any 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 by virtue of
continuous right to the public since time immemorial, as recognized in law and custom.”53
51
www.law.fsu.edu/journals/landuse/vol26_2/mclaughlin.pdf
52
Texas Natural Resources Code 61.011(a)
Texas Natural Resources Code 61.001(5)
53
102
An 1985 amendment stipulated that “once an easement on the dry beach is established, its
landward boundary may therefore ‘roll,’ including over private property.”54 This codified what
became known as the “Rolling Easement” theory.
Significantly, the Texas Open Beaches Act did not alter Luttes. Rather, it merely
enforced the public’s continued right to use the dry beach on private property where an easement
existed, as well as protecting the public’s right to access State-owned beaches. Consequently,
the Act did not diminish property rights and created no rights in the public which did not
previously exist under common law. The Act enjoys wide popular support. In November 2009,
approximately 80% of Texas voters approved a constitutional amendment that adopted the Open
Beaches Act’s definition of “public beach” and reiterated that the public’s easement was
established under Texas common law.55
So, it would seem that the legal standing of the public easement over Texas beaches is
well-established. That would indeed be the case before the Texas Supreme Court ruled in the
Severance v. Patterson case.
B. Severance v. Patterson: A Test of the “Rolling Easement” Theory
In April 2005, a Mrs. Severance of California purchased three investment rental properties
on the West Beach of Galveston Island. Five months later, Hurricane Rita struck the island, and
the resultant change moved the vegetation line underneath of her rent houses, so that a portion of
her property, according to the Texas Open Beaches Act, was now located on the public beach
easement.
When the State sought to enforce this easement on her private property and
Severance, along with a California private property rights advocacy group, sued a number of
state officials in federal district court. The proceedings went through several different courts, and
in the meantime, Severance sold the property to the City of Galveston in June, 2011.
She sought declaratory and injunctive relief in federal court to prevent the State from
violating her rights under the Fourth, Fifth, and Fourteenth Amendments to the federal
Constitution. More “[s]pecifically, she allege[d] (1) regulatory and (2) ‘physical invasion’
54
55
Texas Natural Resources Code 61.025
Texas Constitution, art. I, 33(a)
103
takings . . . without just compensation; (3) violation of substantive due process; and (4) an
unreasonable seizure of her property.” The District Court dismissed the suit, ruling that the
constitutional claims were not ripe and could not be adjudicated until the State enforces TOBA
and removes the property from the beach. It went on to point out that the public’s rolling
easement was established long before Severance purchased her beach property and is one of the
“background principles” of Texas littoral property law. Severance appealed her Fourth and
Fifth Amendment challenges to the rolling easement theory to the U.S. Court of Appeals for the
Fifth Circuit. In a two to one decision, a Fifth Circuit panel affirmed the District Court’s
dismissal of Severance’s takings claim under the Fifth Amendment of the U.S. Constitution,
ruling that her claim was unripe. However, the panel found the Fourth Amendment seizure claim
to be ripe and certified three questions to the Texas Supreme Court to address Severance’s
claim. These questions included the following:
1. Does Texas recognize a “rolling” public beachfront access easement, i.e., an easement in
favor of the public that allows access to and use of the beaches on the Gulf of Mexico, the
boundary of which easement migrates solely according to naturally caused changes in the
location of the vegetation line, without proof of prescription, dedication or customary rights in
the property so occupied?
2. If Texas recognizes such an easement, is it derived from common law doctrines or from a
construction of the OBA [Open Beaches Act]?
3. To what extent, if any, would a landowner be entitled to receive compensation (other than
the amount already offered for removal of the houses) under Texas’s law or Constitution for the
limitations on use of her property effected by the landward migration of a rolling easement onto
property on which no public easement has been found by dedication, prescription, or custom?56
Upon reviewing the case, the Texas Supreme Court, found in favor of Severance. The key
to the plaintiff’s case was a distinction made for the first time between the slow and incremental
changes in the shoreline and those they considered “avulsive.” While this differentiation is
clearly applicable to streams and rivers, this had never before been applied to coastal boundaries.
This point cannot be over-emphasized.
The application of avulsive principles to littoral
boundaries was a novel judicial interpretation, which has profound implications for the public’s
access along the entirety of the Texas Gulf Coast. The Texas Supreme Court decided:
When a beachfront vegetation line is suddenly and dramatically pushed landward by acts of
nature, an existing public easement on the public beach does not “roll” inland to other parts of
the parcel or onto a new parcel of land. Instead, when land and the attached easement are
swallowed by the Gulf of Mexico in an avulsive event, a new easement must be established by
56
http://caselaw.findlaw.com/tx-supreme0-court/1543835.html.
104
sufficient proof to encumber the newly created dry beach bordering the ocean. These public
easements may gradually change size and shape as the respective Gulf-front properties they
burden imperceptibly change, but they do not “roll” onto previously unencumbered private
beachfront parcels or onto new portions of previously encumbered private beachfront parcels
when avulsive events cause dramatic changes in the coastline.57
Beyond that, the plaintiffs also contended that not only did easements not “roll” onto
private property, but that there was, in fact, no such basis for them in common law, arguing that
an easement was a property interest like any other, and that the State could not impress so
encumber private property without compensating the owner of the property.
Eyeing potential ramifications for the remainder of the Texas Gulf Coast, the Court argued
(somewhat unconvincingly) that their decision only affected West Galveston Island. They noted
that easements may very well burden private property along the Texas Gulf Coast, including
West Galvestion Island, but that these easements must always be proven and not merely
presumed.
In a strong defense, Justice Medina warned:
…the Court’s vague distinction between gradual and sudden or slight and dramatic changes to
the coastline jeopardizes the public’s right to free and open beaches, recognized over the past
200 years, and threatens to embroil the state in beach-front litigation for the next 200 years.58
This dissenting view also referenced Las Siete Partidas, Third Partida, Title 28, Law IV: “Every
man can build a house or a hut on the sea shore which can use whenever he wishes provided the
common custom of the people is not violated.” Justice Medina continued on at some length:
1.
57
www.supreme.courts.state.tx.us/historical/2010/nov/090387.pdf
58
http://www.surfrider.org/coastal-blog/entry/texas-open-beaches-the-tx-supreme-court-refuses-to-roll-with-itin-west-beach
105
Galveston Beach, showing vegetation lines and the 200 ft. setback line from low water
From the West Beach on Galveston Island to South Padre, the use and enjoyment of Texas public
beaches by its citizens has a rich history. Today’s decision casts that legacy aside, contrary to
well-established easement law and supported by no coherent rationale …. Through shoreline
erosion, hurricanes, and tropical storms, these lines are constantly moving both inland and
seaward. In the West Bay system, whence this litigation arose, forty-eight percent of the
shoreline is retreating, forty-seven percent is stable and six percent is advancing, at an average
rate of -2.9 feet per year. The beaches on west Galveston Island, where Severance’s property is
located, have even higher retreat rates (a loss of over seven feet per year) because of their
exposure to wind and waves. Natural erosion from waves and currents causes an overall
shoreline retreat for the entire Texas coast.
The OBA recognizes the dynamic nature of beach boundaries by defining the public beach by
reference to the vegetation line and tide lines, which shift with the movements of the ocean,
whether those movements are gradual from erosion or dramatic from storm events. Requiring
that existing easements be re-established after every hurricane season defeats the purpose of the
OBA: to maintain public beach access.59
Some experts, such as those at the Harte Research Institute for Gulf of Mexico Studies,
foresee problems ahead for the Texas Gulf Coast, which is particularly susceptible to storms,
changes in precipitation patterns and the rising sea level. “Changes to wetlands, beaches, dunes,
59
Ibid.
106
and barrier islands will re- shape public and private property boundaries on a vast scale and
intensify existing coastal land use conflicts.”60
The Institute suggests that the Severance decision has harmed the public’s right to access
Texas beaches, as well as creating the conditions necessary for decades of litigation at the
expense of Texas taxpayers.
One of the foundations of Texas’ beach protection program is the incorporation of dynamic
public easements that move with the vegetation lines and allow the public to use the dry sand
portions of the beach as well as prevent man-made structures or other obstacles from
encroaching on the public’s easement. However, this well established “rolling easement
doctrine,” which is the centerpiece of Texas’ open beaches program, was recently dealt a
significant setback by the State Supreme Court in the case of Severance v. Patterson. The
decision has caused legal turmoil along much of the Texas coast and will likely subject the state
to years of litigation. For example, a few days after the decision was handed down, the Texas
General Land Commissioner cancelled a $40 million beach renourishment project because state
law prohibits the spending of public money to benefit private property. Simultaneously, private
property owners are predicted to begin to erect hard structures to save their houses from the
sea.61
In broad terms, a rolling easement allows publicly owned tidelands to migrate inland as a result
of sea level rise or other natural forces at the expense of existing structures, thereby protecting
ecosystem structure and function….It is in fact rooted in an over 150-year-old Texas tradition of
using the beaches along barrier islands facing the Gulf of Mexico for transportation, camping,
fishing, swimming, and other public uses. These public uses were so well accepted that
historically, the public as well as most private landowners believed “that the state retained
ownership of both the ‘wet’ and ‘dry’ [portions of] beaches.” 62
The Fifth Circuit Court panel majority was clearly skeptical of the analysis and
authorities cited by the long line of lower Texas courts in support of the rolling easement
doctrine calling them “utterly inconsistent.” The Supreme Court severely weakened the rolling
easement doctrine.
The Harte Institute finds that “one very odd aspect of the Court’s holding is the
distinction that it created between the legal effects of avulsive versus erosional changes to the
beach. Never before had the state adopted a distinction between erosion versus avulsion in
60
61
62
www.law.fsu.edu/journals/landuse/vol26_2/mclaughlin.pdf
www.law.fsu.edu/journals/landuse/vol26_2/mclaughlin.pdf
Ibid.
107
the coastal context.” Indeed, as developments along the Red River clearly indicate, there is not
universal agreement on what are avulsive events along riparian boundaries, much less along
coastal boundaries. They identify three main areas of concern about the Severance ruling:
1. Severance ignores the geologic realities along the Texas Gulf Coast in which the coastal
boundaries are in constant flux, making differentiation between avulsive and erosional
chances nearly impossible to delineate.
2. Severance treats usage rights and property rights in the same manner—perhaps driven by
an ideological desire to promote private property rights—that in the end, only confuses
issues of property law.
3. Severance rule that easements do not shift due to the forces of nature imposes an
impossible standard to maintain in regard to the public’s use of Texas beaches.
… the Texas Supreme Court has rejected a rational, well-accepted, and easy to apply
policy that recognizes that easements in coastal areas are dynamic and by necessity need to
move with physical changes of the beach. Instead, it has chosen a policy that freezes the
easement in place and guarantees that the state will be involved in expensive litigation for
many decades. The only people who should be happy about the Severance ruling are the
relatively small number of beach homeowners who will be allowed to keep their properties on
the beach and the large contingent of coastal geologists, meteorologists, historians, and
attorneys who will be asked to sort out this unworkable new rule.63
In summation, the Texas Supreme Court has placed a nearly impossible, if not Herculian
responsibility on Texas courts, municipalities, and yes, surveyors, to determine whether changes
in the Texas shore line are “natural” or “avulsive.”
IV.
The Tidelands Controversy
The tidelands controversy between the United States and Texas involved the title to
2,440,650 acres of submerged land in the Gulf of Mexico between low tide and the state's
Gulfward boundary three leagues (10.35 miles) from shore. The First Congress of the Republic
of Texas on December 19, 1836 adopted this line. The boundary in the Gulf was described as
"beginning at the mouth of the Sabine river, and running West along the Gulf of Mexico three
leagues from land." In 1837, the United States recognized the independence of Texas and the
three marine leagues and its international boundary. During negations with the United States for
63
Ibid.
108
annexation, The Congress of Texas insisted that the United States recognize and defend the
established boundaries. Houston would not agree to annexation until he obtained an assurance
from President James K. Polk on this subject. On June 15, 1845, Polk vowed to "maintain the
Texian title to the extent which she claims it to be."
Recognition of the boundary was a condition for the Republic of Texas joining the United
States in 1845. In 1848, the boundary was reaffirmed by the United States in the Treaty of
Guadalupe Hidalgo. This ownership was not questioned by the United States for the next one
hundred years.
After oil was discovered under state leases, applicants began filing for cheaper federal
leases for the same offshore locations. A series of United States Supreme Court decisions
weakened the state’s legal standing in this regard. Outraged Texans denounced this as theft and
expropriation. The actions were considered particularly egregious because the area had been
dedicated to the public school fund.
In 1947, by a split decision, the Supreme Court decided against California in an opinion
by Justice Hugo L. Black. …It became one of the most widely criticized opinions in the history
of the court. Justice Black conceded that… “since oil and other property involved might be
necessary to the national defense and the conduct of international affairs…that the case should
not be controlled by ‘bare legal title’ or ‘mere property ownership…and…the United States here
asserts rights in two capacities transcending those of a mere property owner.’"
Texas went Democratic in the 1948 election, and shortly after the election President
Truman directed the attorney general to file suit against Texas. Motion for summary judgment
(without hearing evidence) was made on behalf of the United States. Texas made a strong plea,
supported by eleven of the world's authorities on international law, in support of its title to the
property as an independent nation; its retention of the land under the terms of the international
agreement by which it became a state; and its right to introduce evidence on both points. By a
vote of four to three, the Supreme Court decided against Texas, thereby, for the first time in its
history, denying a state the right to introduce evidence in a contested lawsuit. The majority
opinion by Justice William O. Douglas recognized Texas's ownership as a republic, but held that
109
transfer of national sovereignty to the United States and admission as a state on an equal footing
with the other states accomplished a transfer of this land to the United States.
In 1952 Congress again passed a bill restoring to the states the title to all submerged lands
within their respective boundaries, but President Truman vetoed the bill a second time. In the
presidential campaign of 1952 Dwight Eisenhower campaigned in favor of recognizing Texas’
right under the Annexation Agreement, and promised to sign the bill if brought before him. His
Democratic opponent, Adlai Stevenson, promised to veto the bill as Truman had done. This
became the preeminent issue in Texas. The Texas State Democratic Convention even passed a
resolution urging Texas Democrats to vote for the Republican Eisenhower!
Eisenhower swept the national election, including Texas. In 1953 Congress made the
restoration of submerged lands one of the first orders of business. Senator Price Daniel pushed
the bill through the Senate (despite a twenty-seven day filibuster). After approval in both
houses, President Eisenhower signed the measure on May 22, 1953.
After the issue was supposedly settled, the question arose as to whether the three marine
leagues was to be measured from the shoreline of Texas upon its admission to the Union in 1845,
or from the permanent jetties constructed after 1875 and before the passage of the 1953
Submerged Land Act. At issue3 was about 37,000 acres. On December 4, 1967, the Supreme
Court of the United States ruled against Texas, finding that Texas could claim to its historical
boundary, but by doing so, “the three-leagues grant is keyed to a State’s boundary as of the date
it entered the Union.”64
64
Pope, p. 16.
110
Minerals and the Public Domain
Under Spanish civil law dating to 1138, all minerals were reserved to the sovereign. This
right was reinforced in Charles III’s 1783 Ordenanzas de Mineria para la Nueva Espana. Under
this ordinance, minerals belonged to the crown, BUT the king’s vassals could use and possess
mines under certain conditions and sharing in the production with the crown. A vassal in
possession of a mine could sell, rent, transfer the property or leave it to their heirs, though with
the understanding he didn’t have perfect and absolute dominion of it.
This differs from English common law, where minerals are owned by the surface owner.
Upon Mexican idependence, they retained the existing Spanish law about mineral interests.
Likewise, the Republic of Texas did the same when they wrested independence from Mexico. In
1837, the Republic of Texas passed a law that actually prohibited the sale of mineral interests
along with land. On January 19, 1840, the Republic of Texas adopted English common law, with
notable exceptions relating to land, water, miners and the transfer of same. For these, Spanish
civil law was maintained. When the Republic of Texas joined the U.S. in 1845, Texas retained
her particular laws regarding land, water and minerals—the Spanish civil law. Texas had taken
great pains to preserve the Spanish civil law structures in regard to these issues…including their
reservation of mineral interests.
In 1862, the Confederate legislature of Texas reached back to civil law understandings
and confiscated a salt lake—La Sal del Rey in the Rio Grande Valley--to supply its troops. In
1866, the Reconstruction Legislature of Texas sought to remedy the 1862 expropriation and
inadvertently passed a sweeping new law retroactively granting all mineral rights to landowners.
The Texas Supreme Court struck down laws passed in 1883, 1887 and 1895 which sought to
retain the mineral interests on school lands still owned by the state. In the 1901 case of
Schendell v. Rogan, the Texas Supreme Court ruled that unless land was specifically classified
“mineral” then the state did not retain the minerals. Commissioner Charles Rogan shut down the
General Land Office until all remaining files could be labeled “mineral.” The SURFACE rights
to Texas river beds, bays and tidewater areas remain in the unappropriated public domain,
whereas the MINERAL rights of same are assigned to the appropriated public domain.
111
Excess and Vacancy
Definitions:
Excess--additional acreage within patented boundaries
Vacancy: “area of unsurveyed school land not in conflict on the ground with land previously
titled, awarded or sold, not listed on the records of the GLO as school lands, and which on the
date of the filing was neither subject to an earlier application to purchase or lease by a discoverer
nor involved in pending litigation brought by the State to recover same.”
In theory, both terms really address the situation of additional or excess acreage—excess
acreage being considered within a patented survey and vacancies considered to be additional
acreage which lies outside of any patented survey. The method for addressing excess acreage
was codified in House Bill 9 (1939).
The method of establishing excess acreage is to locate the original corners of the survey
as called for in the patent, then the excess acreage within is subject to sale. The excess acreage is
proportioned among all landowners within the original grant. If the excess is found within a
survey in a block, and none of the interior section corners are identifiable, then the block corners
must be first established and then all sections within the block are prorated to find the excess
among all the surveys within the block. Once the excess acreage is discovered, corrected field
notes are filed with the General Land Office. Then the School Land Board determines the price
at which the excess acreage is to be sold. Once all the requirements have been met, and the state
has been paid, they issue a Deed of Acquitance to the landowner(s) for the excess acreage.The
deed of acquitance is viewed the same way as a patent, in which the state parts with all its claim
to the excess acreage. Minerals are treated in the same way as the original grant. If minerals
were conveyed (as was the case through about 1901), then minerals are conveyed in the deed of
acquitance. If minerals were reserved in the original grant, then minerals are reserved in the
deed of acquitance. The weight of judicial authority in Texas seems to hold that a reasonable
excess within the bounds of a survey belongs to the owner thereof, so long as it does not amount
to a fraud on the state.
112
Vacancies differ from excess acreage in that they are not covered by any patent—they are
a part of the unappropriated public domain. By definition, the Supreme Court of Texas has held
that there can be NO vacancy within a block system. House Bill 9 also addressed vacancies.
The bill was designed to protect the interests of landowners. With the boom of the Texas oil and
gas industry in the early years of the 20th century, some unscrupulous “vacancy-hunters” filed
spurious claims for vacancies, often times clouding the title of legitimate landowners. Those
who had been occupying the land and using it in “good faith” that they were the owners of same
were designated as good faith claimants. The other party—the one bringing the claim—was
designated as the applicant. The good faith claimant has the first rights to purchase the vacant
acreage. If they failed to exercise their right to purchase, then the applicant could purchase the
land. Note that the applicant could not purchase the land, however, if it was within 5 miles of a
producing oil or gas well—he could only lease it from the state if the Good Faith Claimant did
not purchase the land. To discourage abuse, the applicant covered all costs—filing fees, surveys,
etc. The General Land Office hired the surveyor to ensure that they were a disinterested party.
If the Good Faith Claimant exercised his claim, then he reimbursed the applicant. The Good
Faith Claimant could also file for a vacancy, submitting a survey made by a surveyor of his
choosing. Filing fees are minimal to induce landowners to do this. On vacancies over 5 miles
from a producing well, the state reserves royalty interest of 1/16 of all oil and gas. On vacancies
within 5 miles from a producing well, the state reserves royalty interest of 1/8 of all oil and gas.
Whenever an vacancy application is made, the General Land Office creates a file. These
are called Scrap Files. They are notated: “SF”, with a number assigned. Even if the application
is ultimately denied and there is no vacancy discovered, the General Land Office maintains the
files. These files may contain valuable information pertaining to an area and should always be
checked.
113
114
65
65
Miller, pp. 138-139.
115