5/18/2016
Texas Presentation
© 2016 All Rights Reserved
Kristopher M. Kline, P.L.S., G.S.I.
[email protected]
Equal Footing Doctrine
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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."
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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.
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"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
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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.
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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?"
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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 1819
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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."
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100th Meridian to
Red River
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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. 574.
The present controversy arises under a counterclaim
filed by the State of Texas, in 1920. 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.
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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 3797.3 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
371.5 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
1923 -- 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.
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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;
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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,
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…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, 42 -- a
principle by which prescription founded on length of
time is regarded as establishing an incontestible right -does not apply here.
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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.
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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
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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…
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Rio Grande Dispute:
New Mexico v. Texas
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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…
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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 1850.
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.
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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 1860.
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.
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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,
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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 1852-1853 and 1855
…which showed the course of the river;
-- and War Department maps of surveys made in 18541856 …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.
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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.
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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 1763.
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,"
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"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.
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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.
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Accretion, Erosion,
Avulsion
Accretion, Avulsion
For Red River
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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.
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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.
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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 1902. 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.
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In New Orleans v. United States, 10 Pet. 662 717, 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."
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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.
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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.
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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.
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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.
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Ellis Island Project
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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
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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
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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:
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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. . .
.
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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.
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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.
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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."
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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.
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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
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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.
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…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."
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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.
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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."
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"[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.
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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, 1629.
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;
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…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 1713.
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)));
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Massachusetts v. New York, … (1926) ("Long
acquiescence in the possession of territory and the
exercise of dominion and sovereignty over it may have
a controlling effect in the determination of a disputed
boundary.").
The acquiescence doctrine does not depend on the
original validity of a boundary line; rather, it attaches
legal consequences to acquiescence in the observance
of the boundary.
California v. Nevada, … (1980) (No relationship need
exist "between the origins of a boundary and the legal
consequences of acquiescence in that boundary. . . .
Longstanding acquiescence by California and Nevada
can give [the boundary lines] the force of law whether
or not federal authorities had the power to draw
them.").
1. The Whiting-East Chicago boundary over the
Youngstown landfill was uncertain.
2. The corporate boundary of Whiting does not extend
ten miles into Lake Michigan to the state boundary…
3. Whiting had acquiesced in the section 9 midline
boundary for so long a time that such boundary would
be deemed the true Whiting-East Chicago boundary.
7. The extension of Whiting's boundaries to include the
disputed property would deprive Youngstown of its
property without compensation contrary to the Fifth
Amendment.
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Whatever the result would have been if this Court were
called upon to decide how municipal boundaries should
be extended in general over reclaimed land, …
…we find another principle applicable to this case which
determines our decision.
This is the principle of acquiescence in assumed
boundaries.
The United States Supreme Court has frequently applied
this principle in boundary disputes between the states:
"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.“
Michigan v. Wisconsin, (1926) 270 U.S. 295, 308, 46
S.Ct. 290, 294, 70 L.Ed. 595.
A principle applicable to determine the boundaries of
sovereign states should logically apply to those of
municipal corporations, since both are governmental
entities having territorial boundaries.
The determination of whether the parties involved have
acquiesced in the establishment of a boundary must be
made from all of the circumstances of each case, for
general rules could not provide for all possible cases.
Factors tending to show acquiescence in this case would
include the provision of municipal services to the
claimed territory, exercise of police and regulatory
powers over such territory, and assessment of taxes on
the taxable property in such territory, by East Chicago,
the municipality claiming by virtue of acquiescence,
without protest or challenge by Whiting, the party
contesting acquiescence.
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In this case the trial court found that all municipal
services provided to the disputed territory since its
creation were provided by East Chicago.
These services included water, sewage treatment, police
and fire protection, and ambulance service.
East Chicago enforced its building permit, contractor
licensing, pollution control laws, and criminal ordinances
on the disputed land;
Whiting never attempted to enforce any of its ordinances
there.
Whiting silently permitted East Chicago to service and
regulate the area for nearly twenty years, during which
time both Youngstown and East Chicago came to rely on
the belief that the area lay within East Chicago's
boundaries.
Although the time involved here is shorter than that in
many of the reported decisions, we believe that the facts
of this case are sufficient to establish acquiescence by
Whiting.
Whiting stood silent for between ten and twenty years
while Youngstown made expensive improvements
If this were actually a case in which East Chicago had
simply beaten Whiting in a race to provide services, we
might agree with Whiting.
But the trial court found that Whiting provided no
services and exercised no control over the disputed land
for a number of years, while Whiting had actual or
constructive notice of East Chicago's claim from the
numerous maps contained in public records showing the
section 9 midline boundary.
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The Legislature, in 1870, had the absolute right to fix or
change county boundaries. This is conceded.
Having provided for a laying out of the lines on the
ground, and such lines having been recognized for more
than fifty years by the counties involved as well as by the
State of Texas, …
…it must be held that the lines established by such
survey were the true boundary lines between the
counties, even though an error was made in one call.
If a divisional line between the land of two private parties
had been fixed on the ground by a surveyor appointed
by the parties interested for that purpose, and his line as
surveyed had been recognized by the parties for fifty
years, it would be held that it was, according to the very
intention of the parties, the true line from the beginning.
We think no different rule should apply as between
counties.
The most that can be said in favor of Hunt County is that
an error in surveying was made.
An irregularity in one detail in exercising the general
authority under the Act creating Rains County had
occurred. Such irregularity was cured by the Act in
question, and that Act but gave legislative approval to the
acquiescence and recognition of the parties themselves of
the lines as established in 1870. It did not detach any
land from Hunt County which belonged to it.
It merely gave final validity to the attempted exercise of
authority conferred in 1870,
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In Lynn County et al. v. Garza County, 58 S.W.2d 24, 26,
the Supreme Court, speaking through Judge Sharp, says:
"The rule is now well settled that, in case of a disputed
boundary line between two or more counties …
…where the line had been established and recognized by
the counties interested, and by the commissioner of the
general land office of Texas, …
…the law requires that same shall be declared the true
line, though not mathematically correct, provided no
provision of the Constitution is violated."
The common line between Bailey and Lamb and the
southeast corner of Bailey and the southwest corner of
Lamb had been fixed, marked on the ground, recognized
by the two counties and the general land office for a
quarter of a century.
The southwest corner of Lamb and the southeast corner
of Bailey had been located in 1910 by Tilson and in 1916
by Twitchell and Williams.
Such corner was marked, identified, known, recognized
and acquiesced in by the counties, the citizens and the
general land office and the call for this identified
common corner in the judgment of the trial court in the
Lynn-Garza case must control and the call for course
north on the meridian must yield to the call for the fixed
and identified corner.
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A Boundary Problem
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Pecos county was created by the act of May 3, 1871
(Acts 12th Leg. c. 70), its boundaries being described:
"Beginning at a point on the Rio Grande where the river
San Francisco empties into the Rio Grande; thence in a
northwesterly direction to Varilla Springs; thence," etc.
Presidio county was created May 12, … "Beginning * * *
thence southeast to Varilla Springs; thence in a
southeasterly direction to the mouth of the San Francisco
river, where it empties into the Rio Grande; thence," etc.
In 1887 Brewster, Buchel, and Foley counties were
created out of the eastern portion of Presidio county.
This suit was begun by Pecos county, the material
allegations of its petition briefly stated being as follows:
That in 1879 under the law then in force Pecos and
Presidio counties agreed to have the boundary line
between them fixed, marked, and established, and the
commissioners' court of Presidio county appointed Thos.
C. Nelson surveyor, who ran out and established the line,
and since that time Pecos county has exercised
jurisdiction over all property shown by said survey
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"Field Notes of Survey of County Line Between Pecos,
Presidio, and El Paso Counties.
"Beginning at a stone monument 3 ft. high marked BCP &
PR Co., on top a high bluff, the W. bank of San Francisco
creek at its junction with the Rio Grande, latitude 29
degrees 32 seconds 48 degrees, longitude 102 degrees
20 seconds 08 degrees, brs. S. degrees 50 seconds E. 75
miles 988 vrs. from the SE Cor. of Sur. No. 150 in name
of J. Richards.
"Thence N. 48 degrees 25 seconds W. along said Co. line
(1, 250 vrs. cross to E. bank of San Francisco Cr.) …
Brewster county answered by exceptions, general denial,
and special plea setting up that the boundary line
between the counties was tied to two natural objects, …
…to wit, the mouth of San Francisco creek where it
empties into the Rio Grande, which point is stationary,
enduring, and is on the ground, …
…whence it runs straight in a northwesterly direction to
Barella (Varilla) Springs, which springs are permanent,
natural, and lasting objects
The line in controversy here is a straight line running
from the mouth of San Francisco river where it empties
into the Rio Grande to the Barella (Varilla) Springs.
The acts creating Presidio and Pecos counties fixed that
as the dividing line. That is the line which Nelson ran in
1879. That is the line which Estes ran in 1922.
Assuming, as the trial court evidently did, that Nelson
actually ran the line in 1879, yet the power to resurvey
and re-establish the Nelson line clearly arises …
…upon the fact, as the trial court found, that the Nelson
line had become indefinite and undefined.
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The reports of both Nelson and Estes show that the line
begins on a bluff on the west side of the San Francisco
where it empties into the Rio Grande.
It is true that in Nelson's report the direction from the
beginning point to Barella Springs is given as N. 48 25
seconds W., whereas Estes gives the directions as N. 50
47 seconds W., …
…but course and distance is the least reliable of all calls,
and readily yields to a call for fixed and permanent
natural objects.
Sabine River War Zone
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We have already decided that the relevant boundary
between the States of Texas and Louisiana is the
geographic middle of Sabine Pass, Sabine Lake, and
Sabine River from the mouth of the Sabine in the Gulf of
Mexico to the thirty-second degree of north latitude.
410 U.S. 702 (1973).
We have also held that all islands in the east half of the
Sabine River when Louisiana was admitted as a State in
1812, or thereafter formed, belong to Louisiana.
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The litigation subsequently was enlarged upon the
motion of Louisiana to include a determination of the
lateral seaward boundary between Texas and Louisiana,
and Texas and the United States extending into the Gulf
of Mexico.
The United States also claimed title to six of the islands
in the western half of the Sabine, …
…it subsequently amended its complaint, however, to
withdraw its claim to all islands except one identified as
"Sam." …The city of Port Arthur, Tex., was permitted to
intervene for purposes of protecting its interests in the
island claims of the United States.
We held in United States v. Louisiana, 363 U.S. 1 (1960),
that under the Submerged Lands Act, 67 Stat. 29, 43
U.S.C. § 1301 et seq., Texas as against the United States
was entitled to the natural resources of the seabed and
subsoil extending three marine leagues from its coastline
into the Gulf, but that …
…Louisiana may claim such rights only for a distance of
three geographical miles from its coastline. Thus, for
three geographical miles Texas and Louisiana are in
dispute as to the location of their boundary.
The remaining boundary area out to three marine leagues
is in dispute between Texas and the United States.
Exceptions …have been filed by Louisiana and Texas.
…At approximately 30 degree north latitude, the Sabine
River enters into Sabine Lake through three channels.
Louisiana excepts to that portion of the Special Master's
report which marks the boundary line between the States
through the passage more recently known as "middle
pass," instead of in the geographic middle of the "west
pass." Louisiana contends that the Special Master acted
contrary to our rejection of the thalweg doctrine earlier in
this case, 410 U.S., at 709, by considering navigation as
the criterion to locate the boundary in the middle channel.
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We think it clear, however, that the Special Master makes
reference to the volume of water flowing through these
passes solely in an analytic context reflecting the history
and geography of the region. We are persuaded that the
Special Master made his determination consistent with
our earlier holding.
Texas has filed exceptions to the Special Master's
delimitation of the lateral seaward boundary in the Gulf
of Mexico. Texas argues that the Special Master erred in
concluding that Texas and Louisiana did not have a
historic boundary in the Gulf; we think that misreads the
findings of the Special Master. The Special Master does
not reject Texas' contention that there was a historic
"inchoate" boundary; what he concludes is that there has
never been an established offshore boundary between
the States. We find the Special Master correct in his
conclusion and conclude that he properly considered how
such a boundary should be now constructed.
All parties agree that the lateral seaward boundary is to
be constructed by reference to the median line, or
equidistant principle, recognized in the 1958 Geneva
Convention on the Territorial Sea and the Contiguous
Zone,
Texas, however, excepts to the Special Master's
determination that the equidistant principle is to be
applied to the coastlines of the States as affected by
jetties at the mouth of the Sabine River. Texas urges that
the relevant coastline is the coastline that existed in
1845 when it was admitted to the Union.
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Texas argues that this is a domestic dispute involving
historical precedents and that the States' offshore
boundary should be constructed as Congress would have
done in 1845 had it considered the matter.
The short answer to Texas' argument is that no line was
drawn by Congress and that the boundary is being
described in this litigation for the first time. The Court
should not be called upon to speculate as to what
Congress might have done.
…Texas' three-league grant under the Submerged Lands
Act is measured from Texas' historic coastline, without
reference to the jetties.
In our 1967 Louisiana decision, supra, we were
concerned only with interpretation of the statutory grant
of the Submerged Lands Act. We concluded that "[n]o
definitions are required by this Court and there is no
need to resort to international law; Texas has simply
been given that amount of submerged land it owned
when it entered the Union."
 Railroads
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the Act of 1870, creating the International & Great
Northern Company (6 Gammel's Laws, page 606), gave it
in particular the right to own fee-simple titles for such
purposes;
"Speaking of a right of way, technically or precisely, it
means a servitude of passage; but, in ordinary parlance, it
may as well mean the strip of land
"A right of way may consist either of the fee, or merely of
a right of passage and use, or servitude. Whether the one
or the other is meant in any particular instrument must be
gathered from the instrument as a whole.
Railroad Rights of Way: Recent Ruling (1)
Brandt. v. U.S.A.: No. 12-1173. March 10, 2014
 This case presents the question of what happens to a
railroad's right of way granted under a particular statute--the
General Railroad Right-of-Way Act of 1875--when the
railroad abandons it: does it go to the Government, or to the
private party who acquired the land underlying the right of way?
 In the early 1860s, Congress began granting to railroad
companies rights of way through the public domain,
accompanied by outright grants of land along those rights of
way. P. Gates, History of Public Land Law Development 362-368
(1968). The land was conveyed in checkerboard blocks. For
example, under the Union Pacific Act of 1862, odd-numbered
lots of one square mile apiece were granted to the railroad, while
even-numbered lots were retained by the United States.
Railroad Rights of Way: Recent Ruling (2)
Brandt. v. U.S.A.: No. 12-1173. March 10, 2014
 But public resentment against such generous land
grants to railroads began to grow in the late 1860s.
Western settlers, initially some of the staunchest
supporters of governmental railroad subsidization,
complained that the railroads moved too slowly in placing
their lands on the market and into the hands of farmers and
settlers.
 …By the 1870s, legislators across the political
spectrum had embraced a policy of reserving public
lands for settlers rather than granting them to railroads.
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Railroad Rights of Way: Recent Ruling (3)
Brandt. v. U.S.A.: No. 12-1173. March 10, 2014
 A House resolution adopted in 1872 summed up the
change in national policy, stating:
 "That in the judgment of this House the policy of granting
subsidies in public lands to railroads and other
corporations ought to be discontinued, and that every
consideration of public policy and equal justice to the whole
people requires that the public lands should be held for the
purpose of securing homesteads to actual settlers, and for
educational purposes, as may be provided by law."
Railroad Rights of Way: Recent Ruling (4)
Brandt. v. U.S.A.: No. 12-1173. March 10, 2014
 Congress enacted the last checkerboard land-grant
statute for railroads in 1871. Gates, supra, at 380. Still
wishing to encourage railroad construction, however,
Congress passed at least 15 special acts between 1871
and 1875 granting to designated railroads "the right of way"
through public lands, without any accompanying land
subsidy.
 Rather than continue to enact special legislation for
each such right of way, Congress passed the General
Railroad Right-of-Way Act of 1875, 18 Stat. 482, 43 U. S.
C. §§934-939.
Railroad Rights of Way: Recent Ruling (5)
Brandt. v. U.S.A.: No. 12-1173. March 10, 2014
 The 1875 Act provided that "[t]he right of way through the
public lands of the United States is granted to any
railroad company" meeting certain requirements, "to the
extent of one hundred feet on each side of the central line of
said road." §934. A railroad company could obtain a right of
way by the "actual construction of its road" or "in advance of
construction by filing a map as provided in section four" of
the Act.
 The 1875 Act remained in effect until 1976, when its
provisions governing the issuance of new rights of way were
re-pealed by the Federal Land Policy and Management Act,
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Railroad Rights of Way: Recent Ruling (6)
Brandt. v. U.S.A.: No. 12-1173. March 10, 2014
 In 1976, the United States patented an 83-acre parcel of
land in Fox Park, surrounded by the Medicine Bow-Routt
National Forest, to Melvin and Lulu Brandt.
 fee simple title to the land "with all the rights, privileges,
immunities, and appurtenances, of whatsoever nature,
thereunto belonging, unto said claimants, their successors
and assigns, forever."
 "subject to those rights for railroad purposes as have
been granted to the Laramie[,] Hahn's Peak & Pacific
Railway Company, its successors or assigns." …The patent
did not specify what would occur if the railroad abandoned
this right of way.
Railroad Rights of Way: Recent Ruling (7)
Brandt. v. U.S.A.: No. 12-1173. March 10, 2014
 The right of way referred to in the patent was obtained by the
Laramie, Hahn's Peak and Pacific Railroad (LHP&P) in 1908,
pursuant to the 1875 Act.
 In 1911, the LHP&P completed construction of its railway over
the right of way, from Laramie to Coalmont, Colorado.
 in 1996 the Wyoming and Colorado notified the Surface
Transportation Board of its intent to abandon the right of
way. The railroad tore up the tracks and ties and, after
receiving Board approval, completed abandonment in 2004.
In 2006 the United States initiated this action seeking a
judicial declaration of abandonment and an order quieting title
in the United States to the abandoned right of way.
Railroad Rights of Way: Recent Ruling (8)
Brandt. v. U.S.A.: No. 12-1173. March 10, 2014
 Brandt asserted that the stretch of the right of way
crossing his family's land was a mere easement that was
extinguished upon abandonment by the railroad, so that,
under common law property rules, he enjoyed full title to the
land without the burden of the easement.
 The Government countered that it had all along retained a
reversionary interest in the railroad right of way--that is, a
future estate that would be restored to the United States if the
railroad abandoned or forfeited its interest.
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Railroad Rights of Way: Recent Ruling (9)
Brandt. v. U.S.A.: No. 12-1173. March 10, 2014
 The Government does not dispute that easements normally
work this way, but maintains that the 1875 Act granted the
railroads something more than an easement, reserving an
implied reversionary interest in that something more to the
United States.
 The Government loses that argument today, in large part
because it won when it argued the opposite before this Court
more than 70 years ago, in the case of Great Northern
Railway Co. v. United States, 315 U. S. 262, 62 S. Ct. 529, 86
L. Ed. 836 (1942).
Railroad Rights of Way: Recent Ruling (10)
Brandt. v. U.S.A.: No. 12-1173. March 10, 2014
 In 1907, Great Northern succeeded to an 1875 Act right of
way that ran through public lands in Glacier County, Montana.
 Oil was later discovered in the area, and Great Northern
wanted to drill beneath its right of way.
 But the Government sued to enjoin the railroad from doing so,
claiming that the railroad had only an easement, so that the
United States retained all interests beneath the surface.
Railroad Rights of Way: Recent Ruling (11)
Brandt. v. U.S.A.: No. 12-1173. March 10, 2014
 The Court found Section 4 of the Act "especially persuasive,"
because it provided that "all such lands over which such
right of way shall pass shall be disposed of subject to
such right of way." Ibid. Calling this language "wholly
inconsistent" with the grant of a fee interest, the Court
endorsed the lower court's statement that "[a]pter words to
indicate the intent to convey an easement would be difficult to
find."
 An easement is a "nonpossessory right to enter and use
land in the possession of another and obligates the possessor
not to interfere with the uses authorized by the easement."
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Railroad Rights of Way: Recent Ruling (12)
Brandt. v. U.S.A.: No. 12-1173. March 10, 2014
 Because granting an easement merely gives the grantee
the right to enter and use the grantor's land for a certain
purpose, but does not give the grantee any possessory
interest in the land, it does not make sense under common
law property principles to speak of the grantor of an easement
having retained a "reversionary interest."
 A reversionary interest is "any future interest left in a
transferor or his successor in interest." …It arises when the
grantor "transfers less than his entire interest" in a piece of
land, and it is either certain or possible that he will retake the
transferred interest at a future date.
Railroad Rights of Way: Recent Ruling (13)
Brandt. v. U.S.A.: No. 12-1173. March 10, 2014
 Finally, as part of the National Trails System
Improvements Act of 1988, Congress changed course and
sought to retain title to abandoned or forfeited railroad
rights of way, specifying that "any and all right, title, interest,
and estate of the United States" in such rights of way "shall
remain in the United States" upon abandonment or forfeiture.
16 U. S. C. §1248(c).
 The Government argues that these statutes prove that
Congress intended to retain (or at least believed it had
retained) a reversionary interest in 1875 Act rights of way.
Railroad Rights of Way: Recent Ruling (14)
Brandt. v. U.S.A.: No. 12-1173. March 10, 2014
 The statutes the Government cites do not purport to
define (or redefine) the nature of the interest conveyed
under the 1875 Act. Nor do they shed light on what kind of
property interest Congress intended to convey to railroads in
1875. See United States v. Price, 361 U. S. 304, 313, 80 S.
Ct. 326, 4 L. Ed. 2d 334, 1960-1 C.B. 701 (1960) ("the
views of a subsequent Congress form a hazardous
basis for inferring the intent of an earlier one").
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Railroad Rights of Way: Recent Ruling (15)
Brandt. v. U.S.A.: No. 12-1173. March 10, 2014
 In other words, these statutes do not tell us whether the
United States has an interest in any particular right of
way; they simply tell us how any interest the United States
might have should be disposed of.
 For pre-1871 rights of way in which the United States
retained an implied reversionary interest, or for rights of way
crossing public lands, these statutes might make a
difference in what happens to a forfeited or abandoned right
of way. But if there is no "right, title, interest, [or] estate of the
United States" in the right of way, 43 U. S. C. §912, then the
statutes simply do not apply.
Railroads: Great Northern v. USA (1)
315 U.S. 262; 62 S. Ct. 529; 86 L. Ed. 836 (1942)
 The United States instituted this suit to enjoin petitioner
from drilling for or removing gas, oil and other minerals
so situated, and alleged in its complaint substantially that
petitioner, in 1907, acquired from the St. Paul, Minneapolis
and Manitoba Railway all of the latter's property, including
rights of way granted it under the Act of March 3, 1875, a
portion of which crosses Glacier County, Montana;
 that petitioner acquired neither the right to use any portion of
such right of way for the purpose of drilling for or removing
subsurface oil and minerals, nor any right, title or interest in or
to the deposits underlying the right of way
Railroads: Great Northern v. USA (2)
315 U.S. 262; 62 S. Ct. 529; 86 L. Ed. 836 (1942)
 The Act of March 3, 1875, from which petitioner's rights
stem, clearly grants only an easement, and not a fee.
Section 1 indicates that the right is one of passage since it
grants "the," not a, "right of way through the public lands
of the United States."
 Section 2 adds to the conclusion that the right granted is
one of use and occupancy only, rather than the land
itself, for it declares that any railroad whose right of way
passes through a canyon, pass or defile "shall not prevent
any other railroad company from the use and occupancy of
the said canyon, pass, or defile, for the purposes of its road,
in common with the road first located."
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Railroads: Great Northern v. USA (3)
315 U.S. 262; 62 S. Ct. 529; 86 L. Ed. 836 (1942)
 Section 4 is especially persuasive. It requires the location of
each right of way to be noted on the plats in the local land
office, and "thereafter all such lands over which such
right of way shall pass shall be disposed of subject to
such right of way." This reserved right to dispose of the
lands subject to the right of way is wholly inconsistent with
the grant of a fee.
 Apter words to indicate the intent to convey an easement
would be difficult to find." That this was the precise intent of
§ 4 is clear from its legislative history.
Railroads: Great Northern v. USA (4)
315 U.S. 262; 62 S. Ct. 529; 86 L. Ed. 836 (1942)
 The Act was designed to permit the construction of railroads
through the public lands and thus enhance their value and
hasten their settlement. The achievement of that purpose
does not compel a construction of the right of way grant as
conveying a fee title to the land and the underlying minerals;
a railroad may be operated though its right of way be but an
easement.
 But we are not limited to the lifeless words of the statute and
formalistic canons of construction in our search for the intent
of Congress. The Act was the product of a period, and,
"courts, in construing a statute, may with propriety
recur to the history of the times when it was passed."
Railroads: Great Northern v. USA (5)
315 U.S. 262; 62 S. Ct. 529; 86 L. Ed. 836 (1942)
 The first such interpretation, the general right of way
circular of January 13, 1888, was that the Act granted an
easement, not a fee. The same position was taken in the
regulations of March 21, 1892, 14 L. D. 338, and those of
November 4, 1898, 27 L. D. 663. While the first of these
circulars followed the Act by 13 years, the weight to be
accorded them is not dependent on strict contemporaneity.
 That petitioner has only an easement in its rights of way
acquired under the Act of 1875 is therefore clear from the
language of the Act, its legislative history, its early
administrative interpretation and the construction placed
upon it by Congress in subsequent enactments.
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The class seeks
1) to have the titles to the abandoned right-of-ways
quieted in their favor, and
2) to recover damages from CSX for slander of title.
CSX raises five issues, none of which constitute
reversible error.
where a railroad holds only an easement or lesser
interest in the property upon which its tracks cross, …
…the abandonment of the tracks triggers an
extinguishment of the railroad's interest and ownership
reverts to the fee simple owner
The present class action is based on CSX's unreasonable
refusal to acknowledge the extinguishment of abandoned
right-of-ways (easements or lesser interests) throughout
Indiana and CSX's continued course of conduct in
exercising dominion over these extinguished interests
which has clouded the landowners' title to abandoned
railroad corridors.
…alleged that CSX has refused to acknowledge that it no
longer has an interest …has instead actively attempted to
sell the right of way in its entirety to third parties…
CSX had actually sold the extinguished right-of-way
adjacent to the Cooperative's land to a third party,
In the quitclaim deed by CSX to the third-party purchaser,
CSX reserved a 15 foot easement along/across the
premises for fiber optic capabilities.
CSX admitted that it had from time to time transferred
whatever interest it may have in abandoned railroad
corridors to third parties by quitclaim deed.
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With respect to the slander of title claim ..., the Court
finds sufficient evidence in the record that the slander of
title claim is common to all members of the class based
on CSX's actions in attempting to sell or convey strips of
land underlying its abandoned right-of-way.
The record shows that CSX has actively sought to sell its
interest in abandoned rights-of-way in Putnam and
Hendricks Counties, did sell a portion of its right-of-way
in Hamilton County, and granted or reserved a grant of
fiber optic easements along abandoned rights of way in
Hamilton County. The testimony of CSX's witness confirms
that these are not isolated instances
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Ameriton Properties Incorporated sought a declaratory
judgment that it owned a strip of land in western Houston
and that Union Pacific Railroad Company's only interest in
that land was a now-abandoned right of way.
Union Pacific counterclaimed, seeking a declaratory
judgment that it owned an undivided fee interest in the
land pursuant to an 1879 deed
Disputes over the property in question stretch back more
than 130 years. They began when, in the late 1800s, the
Galveston, Harrisburg and San Antonio Railway Company
(G.H.S.A.) condemned a right of way across a strip of land
The precise nature of the interest conveyed by the deed
is at the heart of this suit, and we therefore include the
text here in its entirety:
…and for the further consideration of Four Hundred and
Thirty-Seven 00/100 Dollars to me in hand paid…
have [sic] granted, bargained, sold, released, and by
these presents to [sic] give, grant, bargain, sell and
release to the Galveston, Harrisburg and San Antonio
Railway Company, the following described tract or parcel
of land, situating, lying and being in the County of Harris
and State of Texas, containing three & one-half acres,
and more particularly described and known as follows,
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A strip of land, fifty feet in width by
[sic] feet in length
of lot No. Six of the Hollingsworth survey of the John
Austin grant near the western suburbs of the City of
Houston and between Buffalo Bayou and the lines of the
Houston & Texas Central Railroad--Being the land
condemned by the Commission to the use of said
Railway Company for Right of Way in Case No. 706, on
docket of the County Court, Harris County, a plat of said
tracts is made part hereof,
but I hereby reserve herein the right to all the timber
upon the tract given for right of way together with all
and singular the improvements, rights, hereditaments,
and appurtenances to the same belonging or in any-way
[sic] incident or appertaining: To have and to hold, the
said land and appurtenances upon the said Galveston,
Harrisburg & San Antonio Railway Company and its legal
representatives forever; and I bind myself heirs and legal
representatives to warrant and forever defend, all and
singular, the title to the aforesaid premises unto the said
Galveston, Harrisburg & San Antonio Railway Company,
their successors and assigns
, against every person whomsoever lawfully claiming or
to claim the same or any part thereof, subject, however,
to the following condition, to wit: that if the Galveston,
Harrisburg & San Antonio Railway Company shall, on or
before the first day of January 1881, build its railway and
run its cars to the Texas & New Orleans RR Depot, then
only in that case this Deed of Conveyance is absolute,
and to be and remain full [sic] force and effect; but
otherwise to be null and void without further act or
reconveyance.
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Through various transactions, Union Pacific and
Ameriton succeeded to the various interests held by
their respective predecessors in title. Although there
were once tracks on the property, Union Pacific has
removed them and no longer uses the property for
railroad purposes.
The parties agree that the sole issue presented to the
trial court was the nature of the interest conveyed by the
1879 deed from Mary to G.H.S.A.
If a written instrument, such as a deed, is worded in
such a way that it can be given a definite or certain legal
meaning, the contract may be construed as a matter of
law.
"An unambiguous contract will be enforced as written,
and parol evidence will not be received for the purpose
of creating an ambiguity or to give the contract a
meaning different from that which its language imports."
"We must assume the parties to the instrument intended
every clause to have some effect; therefore, the language
of the deed should be interpreted so that no provision is
rendered meaningless."
A simple lack of clarity or disagreement between parties
does not render a term ambiguous.
Rather, "[a]n ambiguity arises only after the application
of established rules of construction leaves an agreement
susceptible to more than one meaning."
"[F]or an ambiguity to exist, both potential meanings
must be reasonable."
Whether a contract is ambiguous is a question of law for
the court to decide by looking at the contract as a whole
in light of the circumstances present when the contract
was entered.
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The primary duty of a court when construing such a
deed is to ascertain the intent of the parties from all of
the language in the deed by a fundamental rule of
construction known as the 'four corners' rule.
therefore look to the terms of the deed itself, seeking to
harmonize all parts of it.
In Texas, "[a]n estate in land that is conveyed or devised
is a fee simple unless the estate is limited by express
words or unless a lesser estate is conveyed or devised by
construction or operation of law.
The deed states that Mary has "granted, bargained, sold,
released, and by these presents [does] give, grant,
bargain, sell and release to [G.H.S.A.] the following
described tract or parcel of land," which is then
described. The description includes the clarification,
"Being the land condemned by the Commission to the
use of said Railway Company for Right of Way in Case
No. 706." It also reserves to Mary "the right to all timber
upon the tract given for right of way together with all
and singular the improvements, rights, hereditaments,
and appurtenances to the same
, the deed's only reference to the condemnation was in the
context of describing the location of the land to be
conveyed.
That is, it merely states that the deed conveys the same
land that was at issue in the condemnation proceeding, a
statement that we do not find particularly remarkable
given that Mary executed the deed to settle a legal dispute.
The deed contains no indication that the interest conveyed
was limited to the interest that the railroad could have
obtained through the condemnation proceeding.
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Ameriton also argues that Mary accepted the
condemnation award for a right of way across the
property, rather than money paid as a purchase price,
confirming that she conveyed only what the railroad
could obtain through condemnation, that is, a right of
way.
Ameriton does not cite any evidence supporting this
claim in the record.
On the contrary, both the deed and the Blakeney opinion
confirm that G.H.S.A. paid Mary $437 for whatever rights
it obtained under the deed. See Blakeney,
On its face and "unless the estate is limited by express
words or unless a lesser estate is conveyed or devised by
construction or operation of law," the deed conveys a fee
estate. TEX. PROP. CODE ANN. § 5.001.
While it does not explicitly state that it conveys a fee title,
it also lacks "express words" clearly indicating an intent
to convey a lesser estate. Instead, it purports to convey a
"tract or parcel of land."
Mary reserved to herself timber rights in the land
conveyed. If G.H.S.A. obtained a mere easement, it would
have had no right to do anything to the timber on the
land, except as reasonably necessary for the full
enjoyment of the easement, unless such rights were
expressly granted in the deed.
The deed's reservation of timber rights was thus
unnecessary if the deed conveyed only an easement or
right of way. We must assume the parties did not intend
any provision of the deed to be meaningless.
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…the Commission of Appeals identified three classes of
cases construing deeds and contracts for deeds to railway
companies.
The first class consisted of cases holding that "where the
deed in the granting clause conveys a right of way only, the
estate conveyed will be held to be an easement, and not a
fee, although apt words to convey the fee are employed."
That is, courts faced with such deeds look to the granting
clause of the deed first and, if that clause conveys only an
easement, the deed as a whole conveys only an easement,
even if other clauses might be read to convey a fee.
By contrast, "if the granting clause conveys a fee title to
the property, subsequent recitals, which merely limit the
use to which the same may be put, do not restrict the
conveyance to an easement."
("It is well-settled that when there is an irreconcilable
conflict between clauses of a deed, the granting clause
prevails over all other provisions.").
The first class of cases identified in Stevens
…That case involved a deed reading, "have and do hereby
grant, sell and convey . . . for the purpose of constructing,
operating and maintaining its railroad, the right of way,
two hundred feet in width, over and upon the abovedescribed tract of land."
The second class of cases identified in Stevens comprised
"those in which the grantee claims under a contract for a
conveyance of lands for right of way or other railway
purposes, with a covenant to convey the fee-simple title."
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The third class of cases identified in Stevens consisted of
cases from other states in which a railroad sought to
acquire a strip of land cutting through a larger estate, and
the courts held that the deeds conveyed only easements.
But the Stevens court rejected the holdings of these cases,
holding that Texas law does not limit railways to acquiring
only easements in real property.
Rather, in Texas, "a railway company may condemn
property, not only for right of way purposes, but for other
necessary uses," and may also acquire fee title "as
absolute as that of a private individual,
We hold that the 1879 deed unambiguously conveyed an
undivided, fee simple interest in the property in question
to G.H.S.A. Union Pacific is G.H.S.A.'s successor in title,
and the record does not defeat Union Pacific's title.
We therefore sustain Union Pacific's second issue and hold
that the trial court improperly granted summary judgment
for Ameriton.
The land that is involved lies within the boundaries of
appellee's railroad right of way and the real matter in issue
is that of whether appellee owns the land in fee or only
has an easement in and over it. The answer to the
question is dependent upon the manner in which a deed
in the common chain of title of the parties is construed.
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North 12 degrees 18 minutes East 1008 feet to the place
of beginning, and containing nine and 7/10 (9.7) acres of
land, and being all that certain tract conveyed to R. S.
Sterling by A. M. Fisher by deed recorded in Vol. 8, page
93, et seq., Deed Records of Chambers County, Texas,
save and except the 100 foot right of way of said railway
off the west side of said tract, which right of way 100 feet
wide is reserved by said railway and is not hereby
conveyed."
"The said Dayton-Goose Creek Railway Company has
heretofore executed an oil, gas and mineral lease upon
the above described premises to the Humble Oil &
Refining Company, and said Dayton-Goose Creek Railway
Company hereby conveys to the said R. S. Sterling,
Grantee, all of its royalties, rights, interests and estates in
or under said lease, hereby transferring to the said R. S.
Sterling all and every right which it has in or under said
lease."
Appellee Texas and New Orleans Railroad Company owns
whatever title Dayton-Goose Creek Railway Company
retained to the land in controversy
…For what it is worth, the parties stipulated that from the
time he acquired legal title to the land from A. M. Fisher
on July 10, 1917, until he received from Dayton-Goose
Creek Railway Company the deed of January 10, 1922, R.
S. Sterling was president of Dayton-Goose Creek Railway
Company and the owner of all of its stock, and was at the
same time chief executive officer of Humble Oil & Refining
Company,
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Not only did the specific or metes-and-bounds
description patently fail to include the right-of-way strip,
and purport to describe only 9.7 acres of land (leaving of
the original 11.4 acres the 1.7 acres that are in
controversy), but the deed further identified the land that
was the subject of conveyance as being the same tract A.
M. Fisher had conveyed to R. S. Sterling, "save and except
the 100 foot right-of-way of said railway off the west side
of said tract," and then immediately provided: "which
right-of-way 100 feet wide is reserved by said railway and
is not hereby conveyed."
While it appears to be true that when used in this state in
an instrument of conveyance to describe or to limit the
estate that is the subject of conveyance the term "right of
way" is to be construed as describing or as denoting only
a servitude of passage or a mere easement,
…the term is nevertheless recognized by our courts as
having a twofold signification and as being used upon
occasion and in other circumstances to describe or denote
the right-of-way strip of land itself.
The foregoing considerations, even without the fact last
mentioned, are sufficient, we think, to support our
conclusion that the deed itself renders certain the fact that
the term "right of way" was used in it to denote the land
itself; but if we should be mistaken in this view, and if the
term was in fact ambiguous, we think there can be no
doubt that when taken together all of the matters we have
mentioned are amply sufficient to support a finding that
the parties to the deed intended the term to denote the
land itself rather than a mere easement,
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In a boundary dispute, the ultimate object of the trier of
fact is to determine the "true location of the line in
dispute." …Moreover,
[w]hen this cannot be done with reasonable certainty
due to the lapse of time or the obliteration of the
evidence of the original locater, …
it is not only permissible, but, out of necessity, required
that the courts resort to any evidence tending to
establish the place of the original footsteps of the
surveyor which meet the requirement that it is the best
evidence of which the case is susceptible.
Although the parties do not direct us to, nor can we
find, any Texas case interpreting the phrase
"substantially correct" as used in a boundary dispute
jury charge, courts have clarified the phrase in other
contexts.
Substantially correct . . . does not mean that it must be
absolutely correct, nor does it mean one that is merely
sufficient to call the matter to the attention of the court
will suffice. It means one that in substance and in the
main is correct, and that is not affirmatively incorrect.
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