Texas River Boundary

BrandonA, post: 396146, member: 11837 wrote: How do you deal with a river or coastal boundary? Seems the common theme around this area is to go to the approximate high bank along rivers, and some arbitrary points when working along the coast. Then there is usually a note saying something to the effect of "the surveyor went to the high bank but it should be the gradient boundary as determined by an LSLS."

I'll bite. Riparian and littoral boundaries are two entirely different things. I gather than you're mainly asking about boundaries of inland navigable streams without tidal influence.

Where did you get the idea that a Licensed State Land Surveyor is somehow the only licensee who can locate the gradient boundary? Was it from an LSLS, perhaps? The reality is that in Texas the LSLS is no different than an RPLS in that both merely give opinions based upon analysis of evidence. All the LSLS license qualifies the holder to do is to file maps and field notes in the GLO, including grossly erroneous ones. If maps or field notes aren't to be filed, no LSLS license is needed and the fact that some licensee reports that any boundary is anywhere isn't conclusive of anything.

I know the technical spot is the gradient boundary, but I never seen any surveyors actually determining that. How do you handle this issue?

Well, you could start by learning how the gradient boundary is defined and examine the river in question for exactly those features. From that, you get an average height above the surface of the water at normal stage and, over short reaches of the river, make the reasonable assumption that the gradient boundary is at a constant height above that surface along the river.

And while we are on the topic, what tests do you use to determine if the river is navigable and the boundary line should go to the gradient boundary? What if the vesting deed goes to the CL of a creek, but you know it should go to the gradient boundary?

The statutory test applies, i.e. whether the stream "retains an average width of 30 feet from the mouth up" per Section 21.001 of the Texas Natural Resources Code. That width applies to the bed of the stream, not just the water surface.

The ownership of the beds of navigable streams crossed by survey lines is a question that depends upon when the original grant was made, i.e. whether before 1837 or not and whether the Relinquishment Act of 1929 (the Small Bill) applies to it. If the grant in question was made after 1837, the most material question is whether there is excess acreage in the grant above that recited in the patent or some subsequent Deed of Acquittance from the State, but other facts can figure into the determination.

There is going to be a class on this subject in Tyler in December.

I know a gradient boundary can be determined by an RPLS, that is just the note I have seen on multiple surveys.

But still, do you actually determine it? I have never seen someone determine a gradient boundary, everyone seems to go to the high bank. What is right?

BrandonA, post: 396154, member: 11837 wrote: I know a gradient boundary can be determined by an RPLS, that is just the note I have seen on multiple surveys.

Putting a note like that on a survey map makes the surveyor look like an idiot, though. I certainly wouldn't do it. There are two issues in dealing with riparian boundaries along navigable streams: boundary location and computed tract area.

But still, do you actually determine it? I have never seen someone determine a gradient boundary, everyone seems to go to the high bank. What is right?

Well, the reality is that all attempts to reduce the sinuous curve of the bank of a waterway to a series of line segments or even arcs of circular curves are likely to fail to exactly follow the real location of the boundary perfectly, regardless. In the description that a surveyor prepares the calls should reflect the actual boundary, e.g. "Thence along the gradient boundary on the left bank of the Puerco River, determined by the undersigned to be a navigable stream, the following courses numbered ( _ ) through ( _ ), recited for the purposes of approximate area calculation and not for exact location of this riparian boundary." In other words, the description should make the fact that it is a meander line described by course and distance, not the actual sinuous boundary itself.

The land values and intended use should determine how much time to spend locating the actual boundary line along the navigable stream. In my opinion, a traverse with a staff compass or compass theodolite between survey grade control points positioned at intervals along the traverse can be an excellent way of capturing the sinuosity of the bank if GPS isn't feasible.

Why wouldn't you determine the gradient boundary when it is the boundary? It's not rocket surgery. We've done a few miles of the Pecos River in the last few years when it was needed.

Regarding the LSLS note, I've seen my fair share of ridiculous notes and notes with poor grammar and spelling. It seems like everyone is on autopilot and they just cut and paste a note regardless of what it says or how it is composed. Some of the notes my company was using when I first started working here in 2014 were just embarrassing. It was the old that's-the-way-we've-always-done-it chestnut.

Some clients only wanted to sell a portion of their property to a point a distance away from creeks and rivers where a fence would be built on that line and keep the water rights for themselves.

I have had several LSLS to tell me they would not accept my survey and continue to explain that it would take an LSLS to make the determination of Headright boundaries and riparian boundaries when it was the gradient boundary or coastal tidewater levels.

The surveys were accepted.

Not all waterways are that definable, especially when only a small portion is concerned. It takes looking at enough of the river. It is far more than walking down to a river and point it out immediately.

Locally in what we call the "flat woods" it is fairly easy to locate along most waterways as being the point where the water leaves the river and spills out into surrounding sloughs.

I usually locate and post process using two base stations with static or do the same with Mobile Mapper and log the data to post process.

I hope to be in Tyler myself...........

A Harris, post: 396180, member: 81 wrote: I have had several LSLS to tell me they would not accept my survey and continue to explain that it would take an LSLS to make the determination of Headright boundaries and riparian boundaries when it was the gradient boundary or coastal tidewater levels.

Yes, the LSLS license is basically a credential looking for work. It is really just a license to submit maps and field notes for filing in the GLO (but not necessarily to have them accepted for filing) and to agree to take "direction" from the commissioner of the GLO even when contrary to the licensee's better judgment. Considering some of the really odd stuff that does get filed in the GLO, I see the LSLS license as not really serving any useful public purpose.

There is ZERO reason an RPLS cannot locate a gradient boundary and that note is dumb. The ONLY time, it MIGHT be necessary to have an LSLS sign off on a gradient is when minerals are at play and the river is within the unit. Otherwise, the gradient is also the boundary of the upland owners and we have a license to locate that line, regardless of what an LSLS may say about it.

Coastal boundaries, on the other hand, are not riparian and there are special rules regarding their location, but, again, if the rules are followed, there is no reason to need an LSLS for that.

In fact, the ONLY reason to need an LSLS to do ANYTHING is to file some field notes in the GLO regarding a vacancy or deed of acquaintance. I've done several surveys that were land swaps between the State and private land that ARE on record in the GLO, and no LSLS was needed for that nor was their approval for my survey.

Don't believe the hype.

BrandonA, post: 396154, member: 11837 wrote:
But still, do you actually determine it? I have never seen someone determine a gradient boundary, everyone seems to go to the high bank. What is right?

Well, it depends on the river and it's state at that time. If it's low, I'll get down to the vegetation line on one area river. However, pragmatically, we have very steep banks on our river and MANY times, the difference is only a few feet horizontally, but 8-12 feet vertically and unsafe so we would then shoot the high bank. Dead of summer on the Sabine, yeah, I'm on the vegetation line. Pick any time of the year on the Trinity, and no. Neches is very steep and the Angelina is just a big creek.

Kris Morgan, post: 396184, member: 29 wrote: Coastal boundaries, on the other hand, are not riparian and there are special rules regarding their location, but, again, if the rules are followed, there is no reason to need an LSLS for that..

That isn't quite true. The statute has a make-work provisions for LSLS licensees.

Here is what the Natural Resources Code provides regarding what upland landowners must do to effectively preserve their property rights to tracts of land fronting on the Gulf of Mexico or its various arms, including bays:

Sec. 33.136. PROPERTY RIGHTS: PRESERVATION OF LITTORAL RIGHTS. (a) Notwithstanding any law to the contrary, a person may not undertake an action on or immediately landward of a public beach or submerged land, including state mineral lands, relating to erosion response that will cause or contribute to shoreline alteration before the person has conducted and filed a coastal boundary survey in the same manner as the survey of public land required by Chapter http://www.statutes.legis.state.tx.us/GetStatute.aspx?Code=PW&Value=21&apos ;">21 and any applicable rule of the commissioner and has obtained any required lease or other instrument from the commissioner or board, as applicable. A person is not required to obtain a lease or other instrument from the commissioner or board if the action is confined to land owned by a navigation district or municipality. On filing of the survey, the shoreline depicted on the survey is a fixed line for the purpose of locating a shoreline boundary, subject to movement landward of that line. A coastal boundary survey conducted under this section may not be filed until the commissioner gives notice of approval under Subsection (c).

(b) The survey must contain the following statement: "NOTICE: This survey was performed in accordance with Section http://www.statutes.legis.state.tx.us/GetStatute.aspx?Code=NR&Value=33.136&apos ;">33.136, Natural Resources Code, for the purpose of evidencing the location of the shoreline in the area depicted in this survey as that shoreline existed before commencement of erosion response activity, as required by Chapter http://www.statutes.legis.state.tx.us/GetStatute.aspx?Code=NR&Value=33&apos ;">33, Natural Resources Code. The line depicted on this survey fixes the shoreline for the purpose of locating a shoreline boundary, subject to movement landward as provided by Section http://www.statutes.legis.state.tx.us/GetStatute.aspx?Code=NR&Value=33.136&apos ;">33.136, Natural Resources Code."

So the statute doesn't actually say that you need to have an LSLS make a coastal boundary survey so that you can in effect register your existing claim of ownership of the upland adjoining a public beach or bay, right? The reference to Chapter 21 is a backdoor way of requiring an LSLS to make the survey by treating the survey of the private upland as if it were a survey of public land.

http://www.statutes.legis.state.tx.us/Docs/NR/htm/NR.21.htm

Well if I get a call for one of those in the future I will refer them to Andy. The ones I have been involved with are usually very time consuming and therefore had to get a client to pay for, and no Andy I would not do that to you.

During the course of a large Red River basin dispute, I spent almost 300 hours reviewing the Red on the TX-OK border. I found some issues there that are applied differently by a lot of experts, and in fact found a federal document that said that any two experts would not agree on it. Also, forgive my memory, but isnt' there a Supreme Court ruling in Oklahoma or Texas that determined that the Red River in that state is not navigable along its entirety in the state? you are welcome to what I collected when I reviewed the RR basin.

Frank Willis, post: 396290, member: 472 wrote: During the course of a large Red River basin dispute, I spent almost 300 hours reviewing the Red on the TX-OK border. I found some issues there that are applied differently by a lot of experts, and in fact found a federal document that said that any two experts would not agree on it. Also, forgive my memory, but isnt' there a Supreme Court ruling in Oklahoma or Texas that determined that the Red River in that state is not navigable along its entirety in the state? you are welcome to what I collected when I reviewed the RR basin.

As you know, the boundary between Texas and Oklahoma as described by the US Supreme Court in Oklahoma v. Texas, 260 U.S. 606, 261 U.S. 340 (1923) was located according to a method described by Arthur A. Stiles and named by him the "gradient boundary". The specific task was to locate the bank of the Red River upon the ground according to the criteria given by the court in its decision. Both Texas and Oklahom agreed that the boundary was along the bank, and the dispute was over which bank and where.

Mr. Stiles gave a fairly good account of his work in "The Gradient Boundary - The Line Between Texas and Oklahoma Along the Red River" published in 1950 in "Texas Law Review". It was a solution specific to a problematic reach of the Red River where the river ordinarily ran without well-defined banks, and where the ownership of numerous oil wells was the real issue.

The gradient boundary really took life in Texas, though, when the Texas Supreme Court adopted Stiles's method as proper in Motl v. Boyd, 116 Tex. 82, 286 S.W. 458 (1926). The reality is that the method is such that any five "experts" in gradient boundary determination will arrive at five different locations for the gradient boundary. It provides only the illusion of boundary certainty along navigable streams in Texas.

Oklahoma v. Texas, 260 U.S. 606 (1923):
https://supreme.justia.com/cases/federal/us/260/606/

Oklahoma v. Texas, 261 U.S. 340 (1923) :
https://supreme.justia.com/cases/federal/us/261/340/

And here is the water rights case in which the Texas Supreme Court described how the location of the bank of a navigable stream was to be located:

Motl v. Boyd, 116 Tex. 82
https://casetext.com/case/motl-et-al-v-boyd-et-al

If the County still has a County Surveyor then he can, survey state land in that County as well.

Bushwhacker, post: 396287, member: 10727 wrote: Well if I get a call for one of those in the future I will refer them to Andy. The ones I have been involved with are usually very time consuming and therefore had to get a client to pay for, and no Andy I would not do that to you.

Don't get me wrong. The gradient work was $30k+.

I think the GLO leasing office has taken a more pragmatic approach based on the complexity and expense of doing a gradient boundary. I have had certain leases where GLO staff said to draw the centerline of the river on an aerial map and then offset the line 15 feet on either side. The leasing paperwork is then based on the 30' sttrip. Seemed a little slipshod to me, but it certainly saved the client the expense of a full blown gradient boundary survey. When compared to our on-the-ground results, it wasn't that far off, but generally a little narrower.

Andy Nold, post: 396317, member: 7 wrote: I think the GLO leasing office has taken a more pragmatic approach based on the complexity and expense of doing a gradient boundary.

Yes, it makes perfect sense to me that the main thing the Permanent School Fund cares about is area within the bed of the waterway, not exact location of lines that are subject to change by erosion and accretion. Measuring the width between gradient boundaries at more or less representative locations and using those to make an area calculation along the centerline of the waterway as obtained even from current, high-resolution aerial orthophotos seems to me to be a much more practical approach than burning up field time locating boundaries that will change after the next major flood and that, in the meantime, no other surveyor will be likely to duplicate except to a loose approximation.

Kent McMillan, post: 396364, member: 3 wrote: Yes, it makes perfect sense to me that the main thing the Permanent School Fund cares about is area within the bed of the waterway, not exact location of lines that are subject to change by erosion and accretion.

I think their suggestion of 15' offsets to meet the minimum definition of a navigable stream is alright in the portion of the ditch (also known as the Pecos River) I have been working in. But, I think a more variable width method like you describe would be more appropriate than a hard and fast 15' rule. I can't help but imagine some scenario where an adverse mineral owner finds out that the area was picked off an aerial instead of field work. Not sure if the economics would support a court case, but who knows.

Andy Nold, post: 396376, member: 7 wrote: I think their suggestion of 15' offsets to meet the minimum definition of a navigable stream is alright in the portion of the ditch (also known as the Pecos River) I have been working in. But, I think a more variable width method like you describe would be more appropriate than a hard and fast 15' rule. I can't help but imagine some scenario where an adverse mineral owner finds out that the area was picked off an aerial instead of field work. Not sure if the economics would support a court case, but who knows.

Yes, claiming a minimum width of the stream bed for the State doesn't make a lot of sense considering that the main basis for claiming the Pecos to be a navigable stream in the first place would be that it maintains an average width of at least 30 from its mouth. I don't think it is some sort of a giant burden to expect a surveyor to actually measure widths between the grandient boundaries at intervals. If there are marked changes in width, the area calculation should reflect them.