We’ve all heard the phrase “When in Rome, do as the Romans do.” Well, the Romans did surveying, as did the ancient Egyptians nearly 2700 years earlier. The Romans recognized surveying as a profession – surveyors were known as gromatici. The forebears of today’s surveyors no doubt groused about some of the same things we grumble about -  standing in the sun for hours on end or why an assistant failed to write down measurements. (Probably thinking of his wager in tomorrow’s chariot races!)

One thing they didn’t have to deal with, though, was today’s heavy underground infrastructure.

Ramming a steel survey rod into the ground is like playing roulette. You win if you miss something, you lose if you hit something; how much you lose depends on what you hit.

To prevent that, Texas811 offers a survey/design ticket to identify what’s below before you begin your field work.

 
A pair of ticket survey samples. Reminder - contractors will need to call back in and process a normal ticket once ready to begin working.

According to Scott Sasajima, Director of Operations at Texas811, “Protecting underground facilities always starts with 811. If you’re in the planning stage, request a Survey/Design ticket if no excavation is taking place. If and when that should change, convert your request to a routine ticket so the facility operators are aware of the pending excavation and refresh or place their markings accordingly.”

Again, the design survey ticket does not cover any excavation, and does not relieve the eventual excavator from calling 811 before actual excavation gets underway. TSPS Association President-Elect John Barnard defines a design survey as “typically consisting of boundary (including easements and set backs), improvements, trees and topography... basically a picture of the legal and physical constraints that would affect architectural or engineering design.”

That said, the laws set forth in Utilities Code Title 5, Chapter 251 and the Texas Administrative Code (TAC) Title 16, Part 1, Chapter 18 require excavators (and driving a rod into the ground at that depth turns a surveyor into an excavator by definition) to call 811 if excavation activities exceed a depth of 16”. Therefore, some cases that involve setting property corners, setting control points, and certain other survey activities are considered to be excavation.

Work considered to be for “design purposes” typically does not meet the definition of excavation and therefore operators have no legal requirement to locate their facilities for the requestor. Some do so voluntarily while others may prohibit their locators from responding so a requestor can’t assume that every operator will locate.

For such design jobs, we recommend that you call 811 which will generate a ticket identifying all operators which may have facilities in your proposed project. While you might not receive a Positive Response from all operators at least you will be able to see who is in the area so that you can contact their engineering departments directly and review any potential conflicts.

The operators who are notified have 48 hours to provide a “Positive Response” by either placing marks on the ground identifying the approximate location of the underground facility or by clearing it by fax or e-mail. 

If you do not receive a Positive Response within 48 hours, contact 811 again and declare a “No Response” identifying the operator that did not respond and the contact center will reissue the locate request. Repeat the process as often as necessary if you don’t receive a Positive Response.

More information is always available from your local Damage Prevention Council of Texas (DPC). These 23 non-profit councils hold free monthly meetings with contractors, utility operators, and stakeholders interested in damage prevention. The round table discussions and lunches facilitated by a Damage Prevention Manager are a great way to propose solutions and get answers.

For access to individual DPC websites and meeting schedules or to arrange for a Damage Prevention Manager to speak at one your meetings, visit the DPCs of Texas website.

Always remember that the call to 811 is free as is the subsequent locating.

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Where is the River?

Riparian Boundary along the Prairie Dog Fork of the Red River in Hall County, Texas.

(Survey report submitted to the Commissioner of the Texas General Land Office on February 22, 2016, for consideration of status of land between the Poitevent Surveys and the Prairie Dog Fork of the Red River in Hall County, Texas.)

Introduction

Owners of river sections along the Prairie Dog Fork of the Red River (hereinafter referred to as the Prairie Dog Fork), specifically Sections 6-9, Block 1, of the J. Poitevent Surveys, in Hall County, Texas, questioned the ownership of a significant amount of land between the northern ends of the original land grants of Sections 11-16, Block 1, J. Poitevent Surveys, from the State of Texas and the gradient boundary[1] of the Prairie Dog Fork which has been under fence since at least the early 1970s.

To better understand how to designate this land, the geologic history of the river basin in this area would first need to be studied. The application of riparian boundary law would then be considered.

Figure 1. Picture of the Prairie Dog Fork of the Red River taken November 18, 2015.

River Basin Geology

The Prairie Dog Fork forms out of the Palo Duro Canyon where it gathers its water from tributaries. The red sediments suspended and eventually deposited throughout the Red River basin comes from the “brilliant red sandstone” from the “walls of the [canyon]”.[2] (see Figure 1) This area of the panhandle of Texas is an alluvial apron cover from the eroded material of the Rocky Mountains which lie west over sedimentary rocks.[3] (see Figure 2)  The porous and permeable deposits dip to the east forming aquifers with some ground-water drainage into the Red River basin from the Ogallala formation.[4]

The natural development of a river is to downcut, lateral erode, sheetwash, and mass wasting to form a flood plain which contains the sinuosity of the river channel. Through time, stream terraces develop indicating the waterway “flowed at a high level but subsequently eroded down to a lower level.” If the sea level becomes low, the flow has more energy to deepen its valley.  When the stream reaches a graded level, then the down cutting ceases and laterally erosion begins establishing a new flood plain. “Several episodes of deposition and erosion accounts for multiple terraces seen in the valleys of some streams.” [5]

The hydrogeology of the Prairie Dog Fork of the Red River begins in the Ogalalla formation of the High Plains aquifer, primarily south of the Canadian River in the western part of the Texas Panhandle and eastern part of New Mexico. The recharge of the aquifer system in Texas is as low as 0.061 centimeters per year. However, the evapotranspiration (transpiration by plants and evaporation from land surfaces) exceeds the available precipitation. The amount of decrease in the volume of water in the aquifer system is about 166 million acre-feet per year mostly in Texas and Kansas.[6] Through time, the energy contained in the river that once carried ample sediments was reduced enough to allow alluvial deposits along the flat river basin creating a braided-stream that stretches over a mile in width in some places. Islands are created and destroyed by this process as the normal flow of the river can see torrential floods from the surrounding runoffs of the upland area.

Cadastral System along Navigable Rivers

Statutory Law

In accordance to Texas statutes, which were subsequently adopted through succession of civil law, a river or stream that maintains an average width of thirty (30’) feet from the mouth up is considered navigable[7] whether by fact or law[8]. The rights of ownership and control of the waters and the beds of statutorily determined navigable rivers are retained to be the sovereignty.[9]  Original land grants are to be as squared as allowed. But in cases where they lie on a navigable stream, the original surveys “shall front one-half of the square on the stream with the line running at right angles with the general course of the river.” This is known as “river sections.” Original land grants that failed to yield to navigable streams were validated through Relinquishment Act of 1929.[10] Although the patentee was allowed to hold title to the bed of the river up to the allowed acreage, the water rights would remain under the authority of the state.[11] “Islands formed in a navigable stream belong to the state.”[12]

Historical Deposition of Sovereign Lands

The J. Poitevent Surveys along the south bank and the Southern Pacific Railroad Company Surveys along the adjacent north bank of the Prairie Dog Fork in Hall County, Texas (see Figure 2), follow the statutory requirements of surveys along a navigable stream. The Poitevent Surveys were from a land scrip as a payment for public improvements along the Trinity river as allowed by the Act of June 2, 1873.[13] The general course of the river through this area was in a west to east direction. Therefore, the river sections of 640 acres, as allowed by Script grant acts to encourage infrastructure growth in the State of Texas, fronted the river at half the square section of 1900 varas[14] (950 varas) and ran back as far off the river frontage to make 640 acres. As allowed by the act, for each section surveyed for the pursuant of the Script grant (labeled with an odd number), an adjacent equal area was surveyed for the Texas Public School Fund (labeled with an even number). The latter school fund tracts were granted to individuals by the State of Texas. The entire reservation established by the act would have been completed in this manner setting up a system of surveys that would have no junior-senior dignity within itself.

Figure 2. Original land grants located along the north and south banks of the Prairie Dog Fork of the Red River in Hall County, Texas. (Texas GLO, 2015)

The Poitevent system of surveys begins on the south bank of the Prairie Dog Fork from connecting ties across the river to the Texas & Pacific Railroad Company system of surveys. The descriptions used within the patented field notes clearly call to begin and run its meanders along the south bank of the river for each of the sections from 1 to 10. The surveyor makes reference to the “bluff” or “high bank” for the natural meandering calls of the Prairie Dog Fork. The majority of these sections also have passing calls to a tributary to the Prairie Dog Fork known as the Little Red River. (see Figure 3) This river is substantial in size to bring awareness to the surveyor of the Poitevent surveys but yet somehow failed to meet the surveyor’s discretion as a navigable river. Section 11 changes its beginning call to start on the south bank of the Little Red River at its mouth. The mouth of a river is at a place that is terminus of that river from flowing.

Figure 3. Little Red River at, or near, the original northwest corner of Section 11 of the J. Poitevent Survey call for the mouth. (2015)

From the call of the northwest corner of Section 11 at the mouth of the Little Red River, the calls for the remaining sections (12-15) in question all beginning on the south bank of the river. This would infer the surveyor was again at the south bank of the Prairie Dog Fork as was on the first ten (10) sections.

River bed Islands

Sections 10 and 11 beginning calls make reference to Goat Island whence witness accessories were identified. In 1908, an approximate 400-acre vacancy[15] application with a survey of Goat Island was submitted to the Texas General Land Office for consideration of purchase. From the jacket[16] of the surveyor’s field notes, the surveyor swore to the classification of the vacancy as described as being sandy loam soil being used as half agricultural and half grazing, not suitable for living. He also described that there was seldom, if ever, any overflow of water. (see Figure 4)

Figure 4. View of the upland vegetation and fencing approximately in the middle of Goat Island. (2015)

Later in 1913, another subsequent submission for a vacancy filing[17] was requested on a smaller 20-acre island downstream approximately 2-1/2 miles from Goat Island. This application was denied by the land commissioner as deemed a part of the river bed from testimony provided in the surveyor’s report. The surveyor states that the island banks are difficult to determine in this area and all looks to be a part of the bed. He refers to a previous survey in the same area containing 40 acres. He describes streams and islands throughout the entire bed which would closely resemble a description of a braided stream. He closes with that this island is subject to overflow of water during ordinary high water and was not subject to living, grazing, or agriculture.

These are two very distinct descriptions and opinions of existence of islands, both of which were located within the banks of the Prairie Dog Fork within a few years of each other in very early 20th century. Goat Island apparently existed before the time the original land grants of the river sections in the late 19th century. However, the latter mentioned island was the result of the shifting alluvium in the bed of the river from a recent flood event and was eventually considered to be a part of the bed of the river.

Theory

The Doctrine of Accretion grants title to the additional alluvium deposits that has been accreted by natural, imperceptible means.[18] “Reliction is the term applied to land that has been covered by water, but which has become uncovered by the imperceptible recession of the water, and although technically speaking, land uncovered by a gradual subsidence of water is not an ‘accretion’ but a ‘reliction,’ the terms are often used interchangeably, and the law relating to accretion applies in all its features to relictions.”[19] Through time, it has been proven that the flow of the ground water from the Ogalalla formation of the High Plains basin has diminished from which the headwaters of the Prairie Dog Fork originate. This, in turns, decreases the energy contained within the river flow allowing alluvial sediment to precipitate raising the river bed and allowing upland vegetation to take root. The residual portion of the braided stream would continue to meanderly flow in the flood plain but in a narrower region than before. Bare soil within the river bed could still be seen as recent as the 1950s (see Figure 5) further illustrating how the braided river stream flowed around the north and south sides of Goat Island at one time. However, at this time the river had already established a slightly lower gradient elevation than in the early part of the 20th century in the northern part of the river bed due to the decrease flow from upstream.

Figure 5. Aerial image of the confluence of the Little Red River and the Prairie Dog Fork of the Red River in Hall County, Texas. (U.S.G.S., 1953)

As the coverage of the river ceased to exist along the northern meander lines of the Poitevent river sections, the Little Red River was forced to cut a new channel to meet with the current flow of the Prairie Dog Fork. Today, the mouth of the Little Red River, which was once located at the northwest corner of Section 11, was relocated approximately six linear miles downstream near the northwest corner of Section 20.

Goat Island remains as it did when first described in the original field notes from 1908 with the exception of the accretion along its northern boundary as the river slowly moves north eroding the north bank along the Southern Pacific Railroad Company system of surveys. The area of Goat Island and its accreted lands has been within occupied fence since the early 1970s.[20]

Therefore, in my opinion, due to the decreased flow of water in the Prairie Dog Fork in this area, the water that once covered the southern portion of the river bed ceased to flow and has relicted to the wide, flat-bottom river bed where it exists today. Because of this reliction, the title to the exposed land should be controlled through the same laws relating to the Doctrine of Accretion and the rights and enjoyment should be granted to the adjacent upland riparian owners.[21]  In the area north of Section 11 of the Poitevent system of Surveys, reliction claim can only exist on the land between the northern meanderings of the Poitevent river sections to the southern bank of Goat Island as it was deemed to be public school land by the acting Texas Land Commissioner, John Terrell. “The title to an island which springs up in the bed of a navigable stream vests in the owner [state] of that part of the bed upon which the island forms and accretions to the island vest in the same. Therefore where the riparian owners have fee to shore only, and the bed of the stream is vested in the state, an island formed by accretion belongs to the state and not to the riparian owner, and when by accretion [reliction] such an island is attached to the mainland, the owner of the shore is not entitled to the island but only to such alluvion as formed from his land”.[22]  The land located north of Sections 12-15 can claim reliction to the south gradient boundary of the current channel of the Prairie Dog Fork.

Figure 6. Proposed solution for the apportionment of the accreted and relicted lands on the Prairie Dog Fork of the Red River. (2015)

Using a combination of the perpendicular method (SF-8524) and extension of property line method (Sec. 11-15) of apportionment of accretions along a navigable stream would be the fairest and equitable to all affected riparian owners. [23] [24] [25] [26] This would grant title to the riparian owners in Sections 11-15 of the Poitevent Surveys approximately 1,930 acres of land from reliction through the Doctrine of Accretion. (solid bold lines in Figure 6) The state could possibly retain approximately 18 acres from the bed of the Little Red River through these sections through the Small Act validation of land patents which were granted crossing a navigable stream[27] only if excess is found within the original land grant save the area of reliction. (divided line in southern area of sections in Figure 6) Goat Island (SF-8524), which is still owned by the state, would be granted title to an additional approximate 475 acres of land from alluvium through the Doctrine of Accretion. (area located north of previously located SF-8524 on Figure 6) Since Goat Island is now classified as a part of the Public School Land through the vacancy filing[28], the current occupants of said land may be able purchase or lease[29] from the state through a desire to purchase public school land now that it is connected through reliction to the mainland. The aforementioned approximation of acreage was estimated from satellite images for reporting purposes only. For an accurate description of the area, an on-the-ground survey would need to be performed.

(After consideration, the Commissioner of the Texas General Land Office agreed with this summary and released an official letter that the State of Texas had no interest land between the original surveys and the river thus would remain in the interest of the private property owners who have had it under occupation.)

References

[1] Gradient Boundary as defined by Col. Stiles in the Texas Law Review (1952) Vol. 30 Pp. 306-322.

[2] Baker, T. L. (1998). The Texas Red River Country: The Official Surveys of the Headwaters, 1876. First Texas A&M University Press.

[3] Fetter, C. W. (2001). Applied Hydrogeology, 4th edition. Upper Saddle River, New Jersey. Prentice-Hall, Inc. Pp. 338-342.

[4] Fetter, C. W. (2001). Applied Hydrogeology, 4th edition. Upper Saddle River, New Jersey. Prentice-Hall, Inc. Pp. 338-342.

[5] Monroe, J. S. (2015). The Changing Earth: Exploring Geology and Evolution with the Geology of Texas, 7th edition. Cengage Learning, Boston, Massachusetts.  Pp. 301-304.

[6] Fetter, C. W. (2001). Applied Hydrogeology, 4th edition. Upper Saddle River, New Jersey. Prentice-Hall, Inc.

[7] Vernon’s Texas Codes Annotated, Sec. 21, Natural Resource Code, Title 2, Surveys and Surveyors.

[8] Town of Refugio v. Heard (Civ. App. 1936) 95 S.W. 2d 1008, reversed in part 129 Tex. 349, 103 S.W. 2d 728.

[9] Acts of the Republic of Texas of 1837.

[10] Vernon’s Texas Civil Statutes, Title 86, Article 5414.

[11] VTCA, Sec. 21.001

[12] Maufrais v. State (Sup. 1944) 142 Tex. 559, 180 S.W. 2d 144.

[13] Fannin District Scrip file no. 9583, Texas General Land Office archives.

[14] Vara – Spanish vara is the official unit of measure for the State of Texas. One vara is exactly 33-1/3 inches. (VTCA Sec. 21.041 & 21.077)

[15] Vacancy is defined as an area of unsurveyed public school land. (VTCA Sec. 51.172.6)

[16] SF-8524, Texas General Land Office archive files.

[17] SF-11071, Texas General Land Office archive files.

[18] Ely v. Briley, 959 S.W. 2d. 723, 726 (Tex. App. Austin, 1998)

[19] Skelton, R. (1930) The Legal Elements of Boundaries and Adjacent Properties. The Bobbs-Merrill Company, Indianapolis, Indiana, Pg. 331.

[20] Parole evidence by P. Hancock and J. Rapp. (2015)

[21] Skelton, R. (1930) The Legal Elements of Boundaries and Adjacent Properties. The Bobbs-Merrill Company, Indianapolis, Indiana, Pg. 332.

[22] Skelton, R. (1930) The Legal Elements of Boundaries and Adjacent Properties. The Bobbs-Merrill Company, Indianapolis, Indiana, Pg. 334.

[23] Skelton, R. (1930) The Legal Elements of Boundaries and Adjacent Properties. The Bobbs-Merrill Company, Indianapolis, Indiana, Pp. 338-340.

[24] Simpson, J. (2005) River & Lake Boundaries: Surveying Water Boundaries – A Manual, Second Edition. Plat Key Publishing Co., Kingman, Arizona. Pp. 202-204.

[25] U.S. Department of the Interior. (2009) Manual of Surveying Instructions: For the Survey of the Public Land of the United States. Bureau of Land Management. Denver, Colorado: Government Printing Office. Pp. 210-212.

[26] VTCA. Ch. 21.012.

[27] VTCA. Ch. 21.012.15

[28] VTCA. Ch. 51.172.6.

[29] VTCA. Ch. 51.173.

Republished from Edge of the World - an online blog about the adventures of cadastre science.