Equal Footing Doctrine

Transcription

1 Texas Presentation 2016 All Rights Reserved Kristopher M. Kline, P.L.S., G.S.I. Equal Footing Doctrine And the Territories acquired by Congress, whether by deed of cession from the original States, or by treaty with a foreign country, are held with the object, as soon as their population and condition justify it, of being admitted into the Union as States, upon an equal footing with the original States in all respects; and the title and dominion of the tide waters and the lands under them are held by the United States for the benefit of the whole people, and, as this court has often said, in cases above cited, "in trust for the future States." 1

2 The "equal footing" clause has long been held to refer to political rights and to sovereignty. It does not, of course, include economic stature or standing. There has never been equality among the States in that sense. Some States when they entered the Union had within their boundaries tracts of land belonging to the Federal Government; others were sovereigns of their soil. Some had special agreements with the Federal Government governing property within their borders. Area, location, geology, and latitude have created great diversity in the economic aspects of the several States. The requirement of equal footing was designed not to wipe out those diversities but to create parity as respects political standing and sovereignty. Yet the "equal footing" clause has long been held to have a direct effect on certain property rights. Thus the question early arose in controversies between the Federal Government and the States as to the ownership of the shores of navigable waters and the soils under them. It was consistently held that to deny to the States, admitted subsequent to the formation of the Union, ownership of this property would deny them admission on an equal footing with the original States, since the original States did not grant these properties to the United States but reserved them to themselves. 2

3 "Dominion over navigable waters and property in the soil under them are so identified with the sovereign power of government that a presumption against their separation from sovereignty must be indulged, in construing either grants by the sovereign of the lands to be held in private ownership or transfer of sovereignty itself. See Massachusetts v. New York, 271 U.S. 65, 89. For that reason, upon the admission of a State to the Union, the title of the United States to lands underlying navigable waters within the States passes to it, as incident to the transfer to the State of local sovereignty, Red River Dispute The is a suit in equity in our original jurisdiction, brought by the State of Oklahoma against the State of Texas, to establish the true boundary line between those States where it follows the course of the Red River from the 100th degree of west longitude to the easterly boundary of Oklahoma. 3

4 The bill avers that by the third article of a treaty concluded February 22, 1819, and ratified and proclaimed February 22, 1821 (8 Stat. 252), between the United States of America and the King of Spain, who had sovereignty over the territory now known as Texas but then a part of Mexico, the boundary line between the two countries where formed by the Red River was established as following the south bank of that stream The State of Texas appeared in the present suit and filed an answer denying that the Treaty of 1819 fixed the boundary at the south bank of the Red River; asserting on the contrary that the treaty, by its legal meaning and effect, fixed it in the middle of the main channel of that river; At the same time it was brought to the attention of the court that because of the recent discovery and development of oil and gas deposits in the bed of the river adjacent to Wichita County, Texas, danger of armed conflict between rival claimants The questions are as follows: (1) Is the decree of this court in United States v. The State of Texas, 162 U.S. 1, final and conclusive upon the parties to this cause in so far as it declares that the Treaty of 1819 between the United States and Spain fixed the boundary along the south bank of Red River? (2) If said decree is not conclusive, then did the Treaty of 1819, construed in the light of pertinent public documents and acts, fix the boundary along the midchannel of Red River or along the south bank of said river?" 4

5 The Treaty of 1819, and a mass of historical and other data bearing upon its proper interpretation, were before the court. It appeared that the treaty was negotiated at Washington between the Spanish Minister, Don Luis de Onis, and the United States Secretary of State, John Quincy Adams; M. de Neuville, the French Minister, acting at times as an intermediary. "The Spanish minister required that 'the boundary between the two countries shall be the middle of the rivers, and that the navigation of the said rivers [*92] shall be common to both countries.' Mr. Adams replied that the United States had always intended that 'the property of the river should belong to them,' and he insisted on that point 'as an essential condition, He agreed, however, 'that the navigation of the said rivers to the sea shall be common to both people. To sum it up, we find that the question of the true location of the boundary between the territory of the United States and Texas where it followed the Red River bordering upon Greer County, and the question whether the boundary followed the middle or the south bank of the river, were within the issues made by the pleadings, and so recognized by both parties, as well as by the court; that, by the concession of both, the location was to be determined according to the true effect and meaning of the Treaty of

6 The south bank of the river is the water-washed and relatively permanent elevation or acclivity, commonly called a cut bank, along the southerly side of the river which separates its bed from the adjacent upland, whether valley or hill, and usually serves to confine the waters within the bed and to preserve the course of the river. "6. The boundary between the two States is on and along that bank at the mean level attained by the waters of the river when they reach and wash the bank without overflowing it. "7. At exceptional places where there is no well defined cut bank, but only a gradual incline from the sand bed of the river to the upland, the boundary is a line over such incline conforming to the mean level of the waters when at other places in that vicinity they reach and wash the cut bank without overflowing it." The Supreme Court thus stated in part after a reference to the south bank of the river as it existed in 1821: "Where intervening changes in that bank have occurred through the natural and gradual processes known as erosion and accretion the boundary has followed the change; but where the stream has left its former channel and made for itself a new one through adjacent upland by the process known as avulsion the boundary has not followed the change, but has remained on and along what was the south bank before the change occurred." 6

7 100 th Meridian to Red River This suit was brought by the State of Oklahoma against the State of Texas, in 1919, to settle a controversy between them over that portion of their common boundary extending westwardly along the course of the Red River from the southeast corner of Oklahoma to the 100th meridian of longitude west from Greenwich. This portion of the boundary line, it has been decided, extends along the south bank of the River. 256 U.S. 70 and 608; 258 U.S The present controversy arises under a counterclaim filed by the State of Texas, in It relates to that portion of the boundary line extending northwardly along the 100th meridian from the Red River to the parallel of 36 degrees 30 minutes north latitude, which constitutes the eastern boundary of the Panhandle of Texas and the main western boundary of Oklahoma. The only dispute is as to the location of this line upon the ground. Different surveys have been made. 7

8 Meanwhile Jones and Brown had made, in 1859, their survey of the boundary of the Indian lands. At different times from 1872 to 1875, four United States contract surveyors separately retraced different portions of the Jones, Brown, and Clark line In 1892 H. S. Pritchett, Director of the Astronomical Observatory of Washington University, St. Louis, was employed by Texas to establish, scientifically and accurately, the intersection of the 100th meridian with the Red River. He located this intersection feet east of the Jones and Brown initial monument. In 1923 the United States Coast and Geodetic Survey undertook to locate the portion of the 100th meridian in controversy by a modern and scientific method of triangulation, and concluded that the true meridian ran feet east of the Kidder monument. In the first place it is to be observed that while the intersection of the line of the 100th meridian and the South Fork of Red River has been located four times, that is, by Jones and Brown in 1859, by Pritchett in 1892, by Kidder in 1902, and by the Coast and Geodetic Survey in the three latter locations differing between themselves by less than 400 feet -- there is no extrinsic evidence showing that any one of these locations is precisely correct. 8

9 It is well settled that governments, as well as private persons, are bound by the practical line that has been recognized and adopted as their boundary, Missouri v. Iowa, 7 How. 660, 670; New Mexico v. Colorado, 267 U.S. 30, 40; and that a boundary line between two governments which has been run out, located and marked upon the earth, and afterwards recognized and acquiesced in by them for a long course of years, is conclusive, even if it be ascertained that it varies somewhat from the correct course; the line so established taking effect, in such case, as a definition of the true and ancient boundary. We find, however, upon the facts, that the Jones, Brown and Clark line has not been established as the boundary line by any such long continued recognition and acquiescence. The original Jones and Brown line was not run for the purpose of marking the boundary between Texas and the Territories of the United States under any authority from Congress, but was located under the direction of the Commissioner of Indian Affairs merely to mark the boundary of certain Indian lands. And although the Texas Legislature in 1876 established five new counties in which the calls for monuments and mile posts on "the one-hundredth meridian" evidently referred to the Jones, Brown and Clark line, it is apparent that these calls were inserted merely as a description of the boundaries of the new counties and not as a recognition of this line as constituting the eastern boundary of the State itself, 9

10 from the running of the Jones, Brown and Clark line in 1859 and 1860 to the filing of the counterclaim by Texas in 1920, there was no period of time, either before or after the decision in the Greer County case, in which Texas and the United States or the State of Oklahoma, recognized and acquiesced in the Jones, Brown and Clark line as the established boundary, and fall far short of showing its practical adoption. On the contrary, the course of the legislation, on both sides, instead of treating the boundary as settled and acquiesced in, dealt with it as a matter requiring settlement. The general principle of public law that as between states long acquiescence in the possession of territory under a claim of right and in the exercise of dominion and sovereignty over it, is conclusive of the rightful authority, Rhode Island v. Massachusetts, 4 How. 591, 638, Indiana v. Kentucky, 136 U.S. 479, 510, Virginia v. Tennessee, supra, 522, Louisiana v. Mississippi, 202 U.S. 1, 53, Maryland v. West Virginia, 217 U.S. 1, a principle by which prescription founded on length of time is regarded as establishing an incontestible right -- does not apply here. On the other hand we cannot sustain the contention made by Texas that a line running north from the Kidder monument is the recognized and established boundary. The Act of Congress of 1901, while recognizing, in effect, that the true intersection of the meridian with the South Fork of the River is a corner in the boundary, merely directed that this point be established and marked by a monument, and did not authorize the establishment of the boundary line running northwardly from this monument. 10

11 On the entire case our conclusions therefore are: that neither the Jones, Brown and Clark line, nor a line running north from the Kidder monument has been established as the boundary line; that the boundary is the line of the true 100th meridian extending north from its intersection with the south bank of the South Fork of Red River to its intersection with the parallel of 36 degrees, 30 minutes; and that this line should now be accurately located and marked by a commissioner or commissioners appointed by the court, whose report shall be subject to its approval. Riparian Boundaries Two centuries ago, surveyors from Georgia and Tennessee marched through the region's mountains and hollows to mark the official border between the two states. They were supposed to follow the 35th parallel, according to an agreement approved in 1802 by Congress That has led to years of water wars between Georgia and Tennessee, as the Peach state's population has exploded, out-stripping its water supply 11

12 Rio Grande Dispute: New Mexico v. Texas This suit was brought by the State of New Mexico against the State of Texas in 1913 to settle a controversy concerning the location of the part of their common boundary extending southwardly in the valley of the Rio Grande River an airline distance of about fifteen miles from the parallel of 32 degrees north latitude to the parallel of 31 degrees 47 minutes on the international boundary between the United States and Mexico. New Mexico alleged that under certain designated statutes and other public proceedings 1 the channel of the Rio Grande as it existed in 1850 became and was the boundary of Texas and the Territory of New Mexico between these two parallels, that this boundary had "remained unchanged" and "now is" the boundary between the two States 12

13 Texas also alleged that the true boundary line is the channel of the Rio Grande as it existed in the year 1850, but denied the correctness of the location shown on the map exhibited with the bill, and alleged that the line was correctly delineated on a map attached as an exhibit to the answer; broadly speaking, New Mexico contends that the river then ran on the eastern side of the valley, and Texas, that it ran mainly on the western side. The distance between the two locations midway of the disputed area is about four miles. Each State thus asserted that the true boundary line is the middle of the channel of the Rio Grande in Neither alleged that there had been any change in this line by accretions. And the only issue was as to the true location of the channel in that year. Upon this single issue a large mass of testimony was taken before examiners, during a period of several years. Some of this, as bearing evidentially upon the location of the river in 1850, related incidentally to subsequent changes by accretions and avulsions. In the territory in dispute the Rio Grande flows southwardly through a plain of alluvial and sandy bottom land, composed largely of detritus, and bordered on the east and west by ranges of hills. The valley is about four miles wide at the northern end and narrows gradually to a canyon or gorge at the southern end. The river in normal times is very shallow; but at frequently recurring periods freshets result in many changes in the channel both by erosions and accretions and by sudden and violent avulsions. 13

14 The master made an elaborate and thorough report in which he considered at length the contentions of the two States and the salient features of the testimony. He found, on all the evidence, that the allegations of New Mexico as to the location of the Rio Grande "as it existed in the year 1850" were not sustained, and that the river then followed, in general, the course claimed by Texas, The evidence relating to this matter is so voluminous that it is entirely impracticable to refer to it in any detail. The entire evidence covers about 3500 pages of the record, supplemented by about 200 maps, photographs and other documentary exhibits. New Mexico relied mainly upon the testimony of a large number of Indians and Mexicans, most of whom -- with others who did not testify -- had been members of different parties that had accompanied its engineers The master, in dealing with the evidence of the Indian and Mexican witnesses, said: "Most of the witnesses were illiterate; they were unable to estimate distances with any degree of accuracy All were old men, some very old, and some were only ten years of age or less at the date when they passed along the river between the years 1850 and Many of the witnesses travelled part of the time at night. I am of opinion that their memories were defective, and especially that they were mistaken as to dates, and that they confused the course of the river as they knew it in later years with their knowledge of it in earlier years. 14

15 Before the Territory of New Mexico had been admitted as a State under the Enabling Act of 1910, 12 a constitution was adopted for the proposed State, which, disregarding entirely the lines of Clark's survey, declared in general terms that its boundaries ran along the 103rd meridian to the 32nd parallel, along that parallel to the Rio Grande, as it existed on September 9, 1850, and with the main channel of the river, as it existed on that date, to the parallel of 31 degrees and 47 minutes. Thereupon, in February, 1911, Congress, by a Joint Resolution declared that any provision of this constitution that tended to annul or change the established boundary lines between the Territory and the State of Texas run by Clark in 1859 and 1860, "shall be of no force or effect" and be construed so as not to affect or alter the Clark lines in any way Thereupon, in February, 1911, Congress, by a Joint Resolution declared that any provision of this constitution that tended to annul or change the established boundary lines between the Territory and the State of Texas run by Clark in 1859 and 1860, "shall be of no force or effect" and be construed so as not to affect or alter the Clark lines in any way This Resolution further authorized the President, in conjunction with the State of Texas, to re-establish and re-mark the Clark boundary lines, 15

16 In support of its contention as to the location of the river, Texas further relied upon various old surveys, patents and maps, and the testimony of its engineers in regard thereto, as showing the true course of the river southwardly through the valley from the point where it crossed the parallel. These documents consisted mainly of the so-called Salazar-Diaz Survey of the Rio Grande, made in 1852 by Diaz, a Mexican engineer, a survey made in 1860 and a resurvey made in 1886, by Texas surveyors, of a Mexican grant on which Texas reissued a patent in 1886; -- surveys made by Texas surveyors between 1848 and 1873, several of which were bounded on the west by the river bank, on which Texas issued patents between 1860 and 1874; -- maps of surveys made in and 1855 which showed the course of the river; -- and War Department maps of surveys made in likewise showing the course of the river. And Texas also relied upon long acquiescence by the United States before the Territory of New Mexico had been admitted as a State. this conclusion is reinforced by the tacit and longcontinued acquiescence of the United States, while New Mexico was a Territory, in the claims of those holding the land in controversy under Texas surveys and patents, and the undisturbed possession of the Texas claimants. 16

17 A few days later counsel for New Mexico stated that they would offer in evidence a copy of these memoranda and field notes properly certified by one of the departments of the Mexican Government. They later furnished counsel for Texas a copy certified by a government officer in the City of Mexico. The copy so furnished was thereafter introduced by Texas, without objection; Two years later, in 1918, on the day that the taking of testimony was closed by agreement, New Mexico moved to strike out both copies from the record on the ground that they were not so authenticated as to be admissible in evidence; Upon the whole case we are satisfied that the master's finding as to the location of the river in 1850 is substantially correct, and fixes its course as accurately as is possible after the lapse of more than threequarters of a century. This case is not one calling for the application of the general rule established in Nebraska v. Iowa, 143 U.S. 359, Missouri v. Nebraska, 196 U.S. 23, Arkansas v. Tennessee, 246 U.S. 158 and Oklahoma v. Texas, 260 U.S. 606, as to changes in State boundary lines caused by gradual accretions on a river boundary. 17

18 New Mexico, when admitted as a State in 1912, explicitly declared in its Constitution that its boundary ran "along said thirty-second parallel to the Rio Grande... as it existed on the ninth day of September, one thousand eight hundred and fifty; thence, following the main channel of said river, as it existed on the ninth day of September, one thousand eight hundred and fifty, The State of Iowa in its bill alleges: That prior to and at the time of the treaty between England, France and Spain, in 1763 the territory now comprising the State of Iowa was under the dominion of France, and the territory now comprising the State of Illinois was under the dominion of Great Britain, and that, by the treaty named, the middle of the river Mississippi was made the boundary line between the British and French possessions in North America. That the boundary between the territory comprising the States of Illinois and Iowa remained the middle of the river Mississippi, as fixed by the treaty of That by the act of Congress of April 18, 1818, known as the act enabling the people of Illinois to form a State constitution, "thence west to the middle of the Mississippi River, and thence down along the middle of that river to its confluence with the Ohio River," 18

19 "Where a navigable river forms the boundary of conterminous States, the middle of the channel, or Thalweq, is generally taken as the line of separation between the two States the presumption of law being that the right of navigation is common to both; but this presumption may be destroyed by actual proof of prior occupancy and long undisturbed possession, giving to one of the riparian proprietors the exclusive title to the entire river." It there be more than one channel of a river, the deepest channel is the Midchannel for the purposes of territorial demarcation; and the boundary line will be the line drawn along the surface of the stream corresponding to the line of deepest depression in its bed. The islands on either side of the Midchannel are regarded as appendages to either bank At the time of Kansas' admission to the Union, January 29, 1861, the western boundary of Missouri followed the thread of the Missouri River, that is, the middle line of its main navigable channel, between these points. This line then became the common boundary of the two states. The States are not in dispute about the applicable law. They agree that when changes take place by the slow and gradual process of accretion the boundary moves with the shifting in the main channel's course. Likewise, they agree that a sudden or avulsive change in that course does not move the boundary, but leaves it where the channel formerly had run. 19

20 The intent and purpose in the execution of an instrument by all authorities is of controlling influence in its construction. Every canon of construction has for its object the ascertainment of such intent. It is true the written expression thereof is not conclusive. The situation of the parties, the attendant circumstances, as well as the written memorials, may all be considered. But when thus ascertained, effect must be given thereto, when not unlawful or opposed to public policy. The trial court concluded that as a matter of law when the whole of the description of the property conveyed in said deed is considered and all of the parts thereof are harmonized, the deed properly describes the north onehalf of the property described in the deed that the description of the property, when properly considered, was of the north one-half of said plot of ground, and that it was the intent of the parties at the time of the execution of the deed to convey to Neut C. Griffin and Jimmie T. Griffin the north one-half of said four-acre plot. Prior knowledge is not the only factor to be considered by the court, but the court must also consider the intent of the parties in creating the easement, the surrounding circumstances at the time of the creation of the easement, as well as the purpose and use of the easement before and after the creation of the easement when determining whether the injunction should have been granted. 20

21 Accretion, Erosion, Avulsion Accretion, Avulsion For Red River 1. The boundary between the States of Oklahoma and Texas, where it follows the course of the Red River from the 100th meridian of west longitude to the eastern boundary of the State of Oklahoma, is part of the international boundary established by the treaty of 1819 between the United States and Spain, and is on and along the south bank of that river as the same existed in 1821, when the treaty became effective, save as hereinafter stated. 21

22 2. Where intervening changes in that bank have occurred through the natural and gradual processes known as erosion and accretion the boundary has followed the change; but where the stream has left its former channel and made for itself a new one through adjacent upland by the process known as avulsion the boundary has not followed the change, but has remained on and along what was the south back before the change occurred. 3. Where, since 1821, the river has cut a secondary or additional channel through adjacent upland on the south side in such a way that land theretofore on that side has become an island, the boundary is along that part of the south bank as theretofore existing which by the change became the northerly bank of the island; and where by accretion or erosion there have been subsequent changes in that bank the boundary has changed with them. 4. The rules stated in the last two paragraphs will be equally applicable to such changes as may occur in the future. The area known as the Big Bend, which lies within a northerly bend of the river between a southerly extension of the east line of range thirteen west in Oklahoma and a southerly extension of the west line of range fourteen west in that State, has been since before 1821 fast upland on the southerly side of the river, is within the State to Texas and never was owned by the United States. The northerly border of that area is part of the south bank of the river on and along which the state boundary extends. 22

23 Burke Bet Island and Goat Island, both of which are in the vicinity of the Big Bend Area, are islands in the river, have been islands since before 1821, are within the State of Oklahoma, and are the property of the United States. The island in front of the line between Hardeman and Wilbarger Counties, in the State of Texas, was part of the fast valley land on the south side of the river in 1821, and was severed from the land on that side by avulsion in The island is within the State of Texas and the state boundary is along its northerly bank. The rule governing additions made to land, bounded by a river, lake, or sea, has been much discussed and variously settled by usage and by positive law. Almost all jurists have agreed that the owner of the land, thus bounded, is entitled to these additions. By some, the rule has been vindicated on the principle of natural justice, that he who sustains the burden of losses and of repairs, imposed by the contiguity of waters, ought to receive whatever benefits they may bring by accretion; by others that it is the interest of the community that all land should have an owner, and most convenient, that insensible additions to the shore should follow the title to the shore itself. In New Orleans v. United States, 10 Pet , this court said: "The question is well settled at common law, that the person whose land is bounded by a stream of water which changes its course gradually by alluvial formations, shall still hold by the same boundary, including the accumulated soil. No other rule can be applied on just principles. Every proprietor whose land is thus bounded is subject to loss by the same means which may add to his territory; and, as he is without remedy for his loss in this way, he cannot be held accountable for his gain." 23

24 It is equally well settled, that where a stream, which is a boundary, from any cause suddenly abandons its old and seeks a new bed, such change of channel works no change of boundary; and that the boundary remains as it was, in the center of the old channel, although no water may be flowing therein. This sudden and rapid change of channel is termed, in the law, avulsion. In Gould on Waters, sec. 159, it is said: "But if the change is violent and visible, and arises from a known cause, such as a freshet, or a cut through which a new channel is formed, the original thread of the stream continues to mark the limits of the two estates." These propositions, which are universally recognized as correct where the boundaries of private property touch on streams, are in like manner recognized where the boundaries between States or nations are, by prescription or treaty, found in running water. With such conditions, whatever changes happen to either bank of the river by accretion on the one or degradation of the other, that is, by the gradual, and, as it were, insensible accession or abstraction of mere particles, the river as it runs continues to be the boundary....if, deserting its original bed, the river forces for itself a new channel in another direction, then the nation, suffers injury by the loss of territory greater than the benefit of retaining the natural river boundary, and that boundary remains in the middle of the deserted river bed. For, in truth, just as a stone pillar constitutes a boundary, not because it is a stone, but because of the place in which it stands, so a river is made the limit of nations, not because it is running water bearing a certain geographical name, but because it is water flowing in a given channel, and within given banks, which are the real international boundary. 24

25 Controversies growing out of the shifting of earth by the action of the waters in running streams gave rise to the doctrines of accretion and avulsion. In cases of accretion, owing to the difficulty of tracing the original source, the law awards it to the owner of the land to which it becomes attached, while in cases of avulsion the original owner still holds the title. Accretion is said to be the deposit by gradual and imperceptible process, while avulsion involves the transfer of a considerable quantity of earth beyond or over the channel of the stream. Accretion is the usual and ordinary case of the shifting of earth by the action of the waters and avulsion is of a somewhat extraordinary nature. Avulsion may exist, first, where a stream changes its course, and, second, where a considerable quantity of earth is carried en masse across the channel and attached to the opposite shore. As applied to the second class: Avulsion is the removal of a considerable quantity of earth from the land of one proprietor and its deposit upon or annexation to the land of another suddenly and by the perceptible action of the water. Where the change to the channel of a river is made suddenly and violently, and is visible, and the effect is certain, it is said to be by avulsion. 25

26 In Coulthard v. Davis, 101 Iowa 625, 70 N.W. 716, it is held: "Land detached from one side of a river by a sudden change in the channel, and left connected with land on the other side, in such manner as to be capable of identification, is not an accretion." The question of identification must necessarily play an important part in applying the doctrine of avulsion. For without identification there can be no avulsion in a legal sense. "That while the disappearance, by reason of this process, of a mass of bank may be sudden and obvious, there is no transfer of such a solid body of earth to the opposite shore, or anything like an instantaneous and visible creation of a bank on that shore. The accretion, whatever may be the fact in respect to the diminution, is always gradual and by the imperceptible deposit of floating particles of earth. There is, except in such cases of avulsion as may be noticed hereafter, in all matter of increase of bank, always a mere gradual and imperceptible process. There is no heaping up at an instant, and while the eye rests upon the stream, of acres or rods on the forming side of the river. No engineering skill is sufficient to say where the earth in the bank washed away and disintegrating into the river finds its rest and abiding place. The falling bank has passed into the floating mass of earth and water, and the particles of earth may rest one or fifty miles below, and upon either shore. 26

27 but it is well settled that the general doctrine does apply to the river, though of course it must be used with reference to the peculiar characteristics of the stream. Nebraska v. Iowa, The argument for the limitation of the avulsion doctrine was made in favor of the abolition of the law of accretion from the valley of the Missouri river in the cases of Missouri v. Nebraska and Nebraska v. Iowa, supra. The court held, however, that, notwithstanding the greater rapidity of changes here than elsewhere, the fundamental principles of the law were not affected." "The term 'avulsion' on the one hand and 'gradual and imperceptible accretion' on the other, are used by writers on alluvion to contradistinguish a sudden disruption of a piece of ground from one man's land to another's, which may be followed and identified, from that increment which slowly or rapidly results from floods, but which is utterly beyond the power of identification. "When land is torn from the banks of this stream (Missouri) and plunged into its turbid waters, its component parts are never after distinguishable--the sand and clay and soil, and trees, and roots and logs are soon utterly undistinguishable from any other similar substances, and their destination can never be traced, except that they ultimately go into the gulf of Mexico, unless previously to reaching the ocean they are deposited on either bank or on some island. This is in accordance with the theory of the decision that the land itself which is torn away must be susceptible of location and identification. 27

28 Ellis Island Project New Jersey v. New York, supra, is an example of a government-funded project that brought about an avulsive event, the expansion of Ellis Island by a landfill operation in the Hudson River. New York had title to Ellis Island, New York transferred title to the island to the federal government the federal government engaged in a mammoth landfill operation undertaken by the United States Army Corps of Engineers, expanding the island by raising lands previously submerged on the New Jersey side. New York and New Jersey had competing claims over portions of the newly created parts of Ellis Island. Applying the common-law doctrine of avulsion, the United States Supreme Court concluded that New Jersey maintained sovereignty over land submerged under the Hudson River abutting Ellis Island and therefore retained sovereignty to the land when it was raised and made part of the island 28

29 The Supreme Court noted that under the common law, the United States, the littoral owner of Ellis Island, could not extend its ownership of property into the New Jersey waters of the Hudson River by a landfill operation. The Court stated: "We have long recognized that a sudden shoreline change known as avulsion (as distinct from accretion, or gradual change in configuration) 'has no effect on boundary,' and that this 'is the received rule of law of nations on this point, as laid down by all the writers of authority.'" Canadian River and Gradient Boundary From the inception of this case, the State's claim to the disputed land has been premised on the view that any change in the boundary of the Canadian River that is caused by human activities does not divest the State of title to the bed of the Canadian River as it existed in its unaffected condition. In support of this artificial change theory, the State relies upon a 1971 attorney general opinion, which concluded that the construction of Sanford Dam would have no effect on the boundary between the State's Canadian Riverbed and private property: 29

30 The fact that man has altered the course and flow of the navigable stream by a dam does not alter the ownership of the former river bed, as the bed existed before the alteration. The State's second, and more recent, argument is that because the changes effected in the Canadian Riverbed by Sanford Dam were "sudden" and "clearly discernable," there can be no change in state ownership of the bed. Citing the 1971 attorney general opinion, the State argues that riverbed changes effected by large public works, such as Sanford Dam, are "inherently abrupt and cannot change title to the land affected." The Landowners contend that the artificial change theory is wrong. In particular, they argue that the construction and operation of Sanford Dam did not suspend or otherwise affect the application of normal rules of law for determining the boundaries of riparian lands. The parties also do not dispute that a survey marking the boundary line must comport with the gradient boundary methodology, as defined by the United States Supreme Court in a series of cases The gradient boundary methodology involves determining two basic factors: the location of the "key bank," and the "gradient," or rate of fall, of the water. According to the rules announced in Oklahoma v. Texas, and adopted by our Court in Motl, Diversion, and Maufrais, the bank along which to determine the gradient boundary of a navigable stream:... 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

31 The bed of a stream is that portion of its soil which is alternatively covered and left bare as there may be an increase or diminution in the supply of water, and which is adequate to contain it at its average and mean stage during an entire year, without reference to the extra freshets of the winter or spring or the extreme drouths of the summer or autumn. 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. Accreted land is of two kinds, one by alluvion and one by reliction or, as it is sometimes called, dereliction. Accretion by alluvion is the gradual addition made to land by the washing of the water. Alluvion is the solid material, such as mud, deposited by the water. Accretion by reliction is the gradual addition made to land by a recession of the water, as when the water shrinks below the usual water-mark. 31

32 Reliction is the uncovering of previously submerged land by a permanent recession of a body of water, rather than a mere temporary or seasonal exposure of the land. Typically, in Texas and elsewhere, the term accretion is used to refer to accretion by alluvion, and the term reliction is used to denote accretion by dereliction. For purposes of this opinion, and for consistency, we will use these terms in the same way. A riparian owner ordinarily loses title to land lost by erosion. "Erosion is the process of wearing away the land." A riparian owner thus acquires title to all such additions or extensions to the land and loses title to portions of the land that are worn, washed away, or encroached upon by the water. The rights of the riparian to additions to land by accretion or reliction are vested property rights. When the processes of accretion, reliction, and erosion are initiated, accelerated, or otherwise influenced by artificial structures, the usual rule that a riparian owner receives title to new lands formed as a result of those processes is not affected. There are, however, certain instances in which accreted land caused by an artificial condition does not inure to the riparian owner. A widely recognized exception to the general rule is that accretion does not belong to the owner of the land adjoining the water when the owner causes the accretion. For example, in Texas, a landowner may not acquire title to accreted land by artificially building up submerged land into dry land along his shoreline. 32

33 Texas has not yet addressed the artificial change theory in the context of an artificial structure, such as a dam, that merely affects the current or flow of a river so as to cause artificial accretion. There are, however, certain Texas cases that have rejected the artificial change theory in other contexts, such as when artificial underground drainage causes subsidence, which in turn results in the submergence of land, or when the dumping of dredged spoil onto land makes possible a gradual run off, which eventually creates dry land where land once was submerged. We reject the State's claim that the artificial change theory, as developed in these abandonment cases, dictates that the ownership of the riverbed, as it existed before the operation of Sanford Dam, cannot be altered. The issue in this case is whether conditions on the Canadian River that were brought about or influenced by Sanford Dam ought to be considered in determining the boundary line between the State's riverbed and the Landowners' riparian land. Acquiescence Between Sovereigns 33

34 The plain and obvious mode to satisfy the terms of the grant, would be to give them the extent of two miles on each side of the Hoosick River, conformable to all its windings, if that be practicable. Several other modes have been suggested and analogies between this and other cases attempted, which appear either arbitrary in themselves, or too loose and uncertain to furnish a rule for decision. Boundaries of a similar description have, I believe, in many instances, either been settled by accommodation, or established by a length of possession and the acquiescence of all parties This map is so far from concluding, that it cannot be admitted in evidence to the prejudice of strangers to the transaction. But a uniform and long continued acquiescence, as well on the part of the parties making it as on those intrusted in repelling encroachments on the adjoining tracts, might have stamped it with a higher degree of verisimilitude. The acquiescence in such cases affords ground not merely for an inference of fact, to go to the jury as evidence of an original parol agreement, but for a direct legal inference as to the true boundary line. It is held to be proof of so conclusive a nature that the party is precluded from offering any evidence to the contrary. Unless the acquiescence has continued for a sufficient length of time to become thus conclusive, it is of no importance. The rule seems to have been adopted as a rule of repose, with a view to the quieting of titles; and rests upon the same reason as our statute prohibiting the disturbance of an adverse possession which has continued for twenty years. 34

35 the question in the case is one of boundary. There is no conflict of title. Each of the parties acknowledges the title of the other to the land designated in his deed. The contest is waged for the purpose of ascertaining and establishing the common boundary recognized by both titles. On this question of the locality of the boundary, the acquiescence of the parties in or their recognition of a particular line is evidence which should have great weight in determining their boundary, affording, as it does, a strong presumption that the line so recognized is the correct line, which presumption is strengthened by the lapse of time." Of course there is no time fixed by law that would raise a conclusive presumption of the correctness of a line, but each case must furnish its own rule, to be deduced from all the circumstances. All the circumstances arising through many years tend to show acquiescence in the line. It may be that, where there is no room to doubt the true location of a boundary, mere acquiescence in another line would not support a verdict in favor thereof. In this case, however, there has been and is grave doubt as to the true location of the common boundary It is well settled that nothing passes by deed except what is described in it, whatever the intention of the parties may have been. While parol evidence is often admissible to ascertain what lands are embraced in the description, such evidence cannot make the deed operate upon land not embraced in the descriptive words. 35

36 Where the boundaries of a grant as actually located and measured on the ground were so described in the deed, they are the limits of the grantee's rights, It is our view that the court could not properly have instructed the jury that the recognition of the stone and pipe corners by the parties were conclusive. No deed executed at the time called for them; no party appears to have asserted that they were corners. The strongest statement of which the rule with reference to acquiescence can be made is that it should have great weight, and may furnish a strong presumption that the line acquiesced in is the correct line. However, acquiescence is a question of fact for the jury. But where there is no room to doubt the true location, a mere acquiescence in another line would not support a verdict in favor thereof. Although Mr. Neal claimed that he and Mr. Dodd had an oral agreement regarding the boundary, no written document supports the purported conveyance. The Neals cite to Wall v. Carrell, in support of their position that "[w]hen there is uncertainty, doubt or dispute as to where the true division line between the lands of the party may be, they may fix it by parol agreement between the respective owners, even if they were mistaken as to the true line." 36

37 "[a]lthough acquiescence and recognition may be evidence of an agreement fixing a boundary and may support a inference or presumption that there has been such an agreement, this presumption will not apply... when the true boundary is established conclusively by undisputed evidence." "When there is no doubt as to the true location of the boundary line, mere proof of acquiescence in an erroneous line will not support a verdict." The doctrine of boundary by acquiescence provides: "Where a boundary between two tracts is unascertained or in dispute, the line may be established, first by parol agreement and possession; second, by an agreement implied from unequivocal acts and declarations of the parties and acquiescence for a considerable period of time; and third, in the absence of any agreement, by undisturbed possession for more than 20 years. James the First, on the 3d of November, 1620, granted to the Council established at Plymouth the territory on the Atlantic lying between forty and forty-eight degrees of north latitude, extending westward to the sea. And on the 19th of March, 1628, the Council of Plymouth granted to Henry Roswell and others the territory of Massachusetts, which was confirmed by Charles the First, the 4th of March, This grant was limited to the territory "lying within the space of three English miles on the south part of Charles River, or of any or every part thereof; 37

38 That Massachusetts more than two hundred years ago construed the charter as her counsel now construe it is clear, and the facts proved authorize the conclusion I am of opinion, that, in settling the above-mentioned boundary, the crown will not disturb the settlement by the two provinces so long ago as I apprehend his Majesty will confirm their agreement, which of itself is not binding on the crown, but neither province should be suffered to litigate such an amicable compromise of doubtful boundaries. No human transactions are unaffected by time. Its influence is seen on all things subject to change. And this is peculiarly the case in regard to matters which rest in memory, and which consequently fade with the lapse of time, and fall with the lives of individuals. For the security of rights, whether of states or individuals, long possession under a claim of title is protected. And there is no controversy in which this great principle may be involved with greater justice and propriety than in a case of disputed boundary. As between States, long acquiescence may have controlling effect on the exercise of dominion and sovereignty over territory. Ohio v. Kentucky, (1973) ("The rule, long-settled and never doubted by this court, is that long acquiescence by one state in the possession of territory by another and in the exercise of sovereignty and dominion over it is conclusive of the latter's title and rightful authority." (quoting Michigan v. Wisconsin, (1926))); 38