interesting scenario here, been digging and meeting and getting input from various sources.
so a patent's beginning point is called as a 20' o/s from the centerline of a creek. then the final 3 calls close along a line offset 20' from the center of said creek. obviously, the creek has moved around a bit in the past 173 years. are the b&d calls held, or the course of the creek, given that the line was defined as an offset? edit: the patent was subsequently subdivided and platted (43 years after the patent), by which point the creek's course had already changed significantly enough that the west line of the subdivision (called the west line of the patent) is significantly different in bearing and distance from the calls of the patent.
another issue- the opposite side of the creek is shown to be undedicated land that falls north of the projection (to the creek) of the southernmost boundary of dedicated city blocks. it is specifically not, however, shown to be dedicated as right-of-way. the city then vacates (124 years after the recordation of the city plat) a supposed 80' right-of-way across a portion of this piece, though there is no apparent dedication of right-of-way at any point. there is no subsequent conveyance of record (that i or the title company can find) of said 80' strip. thoughts on fee ownership?
to be clear, i'm not nearly so obtuse as the above might indicate. and the issue has largely been settled in a practical matter between the state and the city. however, our client will be attempting to acquire a gap left by that settlement, and while i can recognize the expedience of the city/state settlement, i don't necessarily agree that it's correct in a theoretical sense. just interested in fostering a discussion, mainly to catch any possible lapses in my thought process(es).
A creek is usually non navigable. Around here it would be 20 feet from the creek the day the creation deed was executed. The creek location should be fixed by the best evidence of where it was at that time. Barring other evidence it's probably those first calls.
That being said I've been out of Texas 28 years. Not sure what your laws say...
I don't know the laws on this. My immediate reaction is that if there is an offset call to a creek, that creek location would hold over math call since it is a call to a natural monument.
The fact that it's non-navigable, to me, means that the creek bed is not owned by the State, but that doesn't preclude that someone can call to the centerline of a creek or an offset to it.
Could it be possible that the calls were meant to be meander lines and the ownership of the land was to the creek? Often times the additional area between the meander lines and the creek were the areas that fluxuated and the meander would be for area calculation purposes.
> A creek is usually non navigable. indeed, it has been determined as such. the question then revolves around the perceptibility, speed, and nature of change. clearly the 1884 plat determined it was a natural, imperceptible change over 40+ years. i guess i'm also curious if a stated offset of meanders would control the same as a call along meanders. but again, this appears to be hay in the barn to the GLO.
i'm more interested, really in the second issue. the GLO claims fee title, as the land was undedicated by city plat. yet it only claims to the center of the later-vacated right-of-way (that never existed). this seems inconsistent to me, as the right-of-way in question was neither shown on the original city plat nor was it ever constructed or used as such (according, at least, all the aerial photography and city surveying records i've located [though, interestingly enough, it's centerline was monumented for the purposes of the vacation]). if the state claims the land north of the southernmost block projection, then i'm not sure how they recognize the city's act to vacate something they never possessed. in short, the client wants to acquire title to a portion that belongs to the GLO and a portion that belongs to the city. i'm inclined to believe that if the state asserts claim to anything north of the projection of that southern line, that the west 40' of that "r.o.w." vacation never was, nor currently is, under title to the city.
well, except the calls are specifically precluded by an offset-to-meanders call. i don't think conveyance to the actual meanders was ever implied or intended.
> However, our client will be attempting to acquire a gap left by that settlement, and while i can recognize the expedience of the city/state settlement, i don't necessarily agree that it's correct in a theoretical sense.
You'd have to provide more details to get an informed answer if this is land in the City of Austin along Waller Creek, land out of the so-called Government Tract acquired by the Republic of Texas from private owners in 1839.
kent, i knew you'd know the creek in question.
between waller and blocks 183 and 184.5 on the west.
george oatmeal survey on the east.
> between waller and blocks 183 and 184.5 on the west.
> george oatmeal survey on the east.
Since a picture always helps:
(Detail from 1853 lithograph map of the City of Austin in the holdings of the Texas State Library and Archive)
Okay, so according to the receipt in GLO Austin City Lots File 000445, Lots 1-6 in Block 184-1/2 were sold at public auction according to the Act of September 3, 1850 "To Authorize the Sale of Austin City Lots and Reserved Tract Adjoining". Duncan C. Ogden bid $228 for Lots 1-6 in Block 184-1/2 and three lots in Block 158. Full payment was certified as received on March 19, 1851, whereupon Purchaser Ogden evidently conveyed his interest in Lots 1-6 to George T. Howard and patent was issued that same year.
I assume that Lots 1-6 in Block 184-1/2 were described in the patent as being "according to the map of the City of Austin on file at the General Land Office" or some similar phrase. I believe that H.H. Farley's map of the "Plan of the City of Austin" is probably the only map that is known to have been on file at the GLO showing Block 183 in 1851.
Lots 1-6 in Block 183 were sold to John M. Swisher (GLO Austin City Lots File 000741), who in 1856 paid the full amount of the purchase money due and was issued a patent on December 2, 1856, presumably describing the land simply as Lots 1 through 6 in Block 183 "according to the map of the City of Austin on file at the General Land Office" or some similar phrase. I believe that H.H. Farley's map of the "Plan of the City of Austin" is probably the only map that is known to have been on file at the GLO showing Block 183 in 1856.
If the patent was issued by reference to the Farley map, then Neches Street was dedicated by that sale in reference to the map since Farley's map delineates the Southward extension of Neches along the East line of Blocks 183 and 184-1/2 upon it.
Under the common law rule, the sale of Lot 6 in Block 183 and Lot 6 in Block 184-1/2 by the State of Texas would, by implication, have also transferred such interest as the State held in Neches Street adjoining Block 183, subject to its use by the public for street purposes.
What is variously known as Block No. 189 and as Lot No. 189 in the City of Austin was evidently sold to John B. Banks in 1863 according to the receipt for $1100 issued May 11, 1863 (GLO Austin City Lots File 000819). Patent was issued on June 12, 1863, presumably incorporating the description found on the file jacket for Lot No. 189 as "fronting 322 feet and South of Water Avenue (presently East Cesar Chavez) and fronting 164 feet and East of Neches Street".
kent, thank you.
i clearly need to brush up on deftly navigating the GLO archives.
however, i'm curious as to your point that farley's map delineates an extension of neches south of, at best, the alley that bisects block 183. the city has quitclaimed to that point (which i'm still not sure makes any more sense to me than not, but they have, and so be it), but nothing on any of the maps i've seen, including farley's, would indicate that any extension existed south of there (the repeated depiction of where the creek would cross into neches). is it simply an implied projection? because to me it just looks like an amorphous, undelineated tract between block 184.5 and waller creek. and, if that is the case, then why is there not an implied projection of the city boundary to waller creek along the bearing of the south line of blocks 184 and 184.5?
> however, i'm curious as to your point that farley's map delineates an extension of neches south of, at best, the alley that bisects block 183.
That certainly looks like an extension of Neches street all the way to River Walk to me. The fact that it isn't of uniform width means nothing. Look at Water Avenue (Cesar Chavez) and River Walk bounded by the Colorado River, for example.
The language of the description of Block No. 189 on the GLO file jacket as lying "East of Neches St." certainly shows that the folks at the GLO considered Neches Street to continue South of Water Avenue.
If Neches Street had not been laid out to continue South of Water Avenue, there would have been a line delineated for the South line of Water Avenue and there is none on the 1840 H.H. Farley map (which had the details of the 1850 survey that laid out Blocks 183 and 184-1/4 drawn in on it). Likewise the public right-of-way of Willow Street doesn't terminate at a line on the map, but merges with the area in the 1850 extension of Neches Street, as happens whenever any other two public streets intersect on the map.
> the city has quitclaimed to that point (which i'm still not sure makes any more sense to me than not, but they have, and so be it), but nothing on any of the maps i've seen, including farley's, would indicate that any extension existed south of there (the repeated depiction of where the creek would cross into neches).
I don't think you're looking at Farley's map with 1850 eyes. The fact that the extension of Neches Street isn't of uniform width is something that would bother someone in 2014 much more than in 1850 Austin, before pavements, before curbing, before sidewalks. I think the map obviously shows the Southward extension of Neches Street.
Any quitclaim given by the City of Austin to anything is simply a quitclaim. By itself, it's proof of nothing other than the release of whatever interest the City might have had and without warranty of any.
> is it simply an implied projection? because to me it just looks like an amorphous, undelineated tract between block 184.5 and waller creek. and, if that is the case, then why is there not an implied projection of the city boundary to waller creek along the bearing of the south line of blocks 184 and 184.5?
I'm not sure what you're asking.
By the way, here's a link to the Act of 1850 that authorized the subdivision and sale of that land South of Water Avenue:
http://texashistory.unt.edu/ark%3A/67531/metapth6728/m1/794/
so if it's not of uniform width, then does that not imply the r.o.w. would extend to waller creek? The GLO and the city both accept that it's 80'. So really, problem solved. But I'm still failing to see how the state can assert, on one hand, that they have claim on some portion of land laying west of the creek and north of the southeast corner of 184.5, and on the other cede a uniform r.o.w. width, save (so far) any evidence of an explicit dedication of such.
and I would agree that neches extended, in some context, south of water street, in a slight sense from what the map implies, but more importantly in its historical use (as a paved parking/service point/park access point). I can't find anything, save a field sketch where cl was monumented in '62, that indicates anything south of the alley was ever used as a de-facto right-of-way (other than, of course, the sidewalk around the tower that could easily be explained by the retention of easement rights in the r.o.w. vacation- unfortunately the historical aerials don't show how long that sidewalk has existed).
> so if it's not of uniform width, then does that not imply the r.o.w. would extend to waller creek?
Yes, I'd say that it pretty obviously does.
> The GLO and the city both accept that it's 80'.
So what? Neither owns that abandoned portion of Neches Street, do they?
> So really, problem solved. But I'm still failing to see how the state can assert, on one hand, that they have claim on some portion of land laying west of the creek and north of the southeast corner of 184.5, and on the other cede a uniform r.o.w. width, save (so far) any evidence of an explicit dedication of such.
The reality is that the State (meaning: General Land Office staff) will always favor the writing of checks payable to the State of Texas in exchange for worthless quitclaim deeds and deeds of acquittance.
> and I would agree that neches extended, in some context, south of water street, in a slight sense from what the map implies [...]
No, you're missing the point. The map is what dedicated Neches Street South of Water Avenue. That is hardly any "slight sense". If Neches Street is shown on a map by reference to which lots were sold and patents issued, then it was dedicated by that same map. The public may have never accepted the street, but it was dedicated.
On other matters, in case any others are interested, here are the field notes for the tract of land known as Lot 72 in Division "E" of the Subdivision of the Government Tract Adjacent to the City of Austin, sold to a fellow named George Oatmeal and described according to a survey made in 1841 by Travis County Surveyor D.K. Webb:
This is from GLO Austin City Lot File 000116. Note that the sketch that Mr. Webb attached to his field notes and what it reflects of his intentions as expressed by the metes and bounds descriptions.
Thanks again, kent, I really appreciate you engaging here. I've got half a dozen or so of these downtown quandaries in my pocket- probably most of them ultimately have been solved by checks being written, but I'm always more interested in the non-expedient solutions...
Oh, and yes- the housing authority claims title to the west 40' of neches, the glo claims title to the east 40 and to the west line of the B&D calls of the oatmeal patent.
>
BTW, the detail not to miss about County Surveyor Webb's 1841 survey of Outlot 72 is that it is in poles, not feet and not varas. There is significant evidence that Samuel C. Wiltse's survey and subdivision in 1840 of the thousands of acres of the remainder of the Government Tract surrounding the City of Austin into the other Outlots was also made in poles.
There are several things I'd still want to look at, not the least of which is the tattered manuscript map made by H.H. Farley in 1840 to which the details of the 1850 subdivision of the land South of Water Avenue were added by another draftsman. The 1853 lithograph map has a crease in a location that may conceal a different delineation of the East line of Neches Street than has been preserved on the later copies of the Farley map.
The other key detail would be the actual patents issued to the various lots around the area of interest, i.e. exactly how they describe the land. I made some assumptions about a reference to a "map on file at the General Land Office" that may not be correct and that is important.
I was there yesterday, will be returning tomorrow (with a better idea of how much change i need for the meter).
> I was there yesterday, will be returning tomorrow (with a better idea of how much change i need for the meter).
I would strongly suggest browsing the online map catalogue first, to be sure that you can tell Alex or Jan exactly which maps you need to look at. Bring your own magnifying glass, as well. The original of the Farley map looks to be in tatters and may offer nothing of value other than showing that various lots and blocks were drawn in by another hand.
The note on the 1931 copy by Boggs of the 1840 Farley map to the effect that "all the other Avenues and Streets are 80 ft. wide excepting River Walk and that part of Water Ave. West of Congress" may or may not have been well crafted.
Austin City Lots File 000266 contains James Pace's field notes for his 1848 survey of a 50 acre tract for David Thomas is also known as Outlot 73 in Division "E"
To access this file online, in the Land Grants Database search dialogue box enter:
Class = Austin City Lots
File = 000266
This is significant because Mr. Pace was probably the surveyor who subdivided the land South of Water Avenue pursuant to the act of 1850.
> Austin City Lots File 000266 contains James Pace's field notes for his 1848 survey of a 50 acre tract for David Thomas is also known as Outlot 73 in Division "E"
>
> To access this file online, in the Land Grants Database search dialogue box enter:
>
> Class = Austin City Lots
> File = 000266
>
> This is significant because Mr. Pace was probably the surveyor who subdivided the land South of Water Avenue pursuant to the act of 1850.
yes, i looked at this. funny, there's a note on the back of the original that states the description doesn't close by 75 varas.
> yes, i looked at this. funny, there's a note on the back of the original that states the description doesn't close by 75 varas.
But if you look at Pace's field notes, it's pretty obvious that the bust was in the course that he gave as S37°E (instead of S53°E) 497 varas. Note that all of the courses that Mr. Pace would have actually measured are expressed to the nearest 10 varas. That is exactly to be as expected since he was almost certainly using a 10 vara chain.
The course recited as S37°E, 497 varas, however appears to have been calculated. He just reversed the northings and eastings and arrived at S37°E instead of S53°E.
