Texas Supreme Court Ruling
Backs Landowners On Canadian

By David Bowser

AUSTIN — A spokesman for the Texas General Land Office says a Texas Supreme Court ruling on a Canadian River land dispute will probably not be appealed to the federal level.

Mary Jane Wardlow says attorneys at the General Land Office and Texas Attorney General's Office are this week poring over a state Supreme Court ruling awarding landowners along a 37-mile stretch of the Canadian River more than 14,000 acres the landowners have claimed because of decreased water flow in the river.

She says there appears to be no federal issue involved, and therefore the case could not be appealed to the U.S. Supreme Court.

Federal law, she explains, leaves property disputes mostly to the states. If the case were appealed to the federal level, she says, it would go directly to the U.S. Supreme Court. The state has 15 working days, or until about Oct. 28, to give notice of appeal.

In a unanimous decision issued Oct. 7, the Texas Supreme Court ruled for landowners in the Texas Panhandle who sued to establish boundaries between their land and the state's ownership of the Canadian River bed.

The dispute arose after Sanford Dam was built in 1965 to form Lake Meredith. Because of the dam, the downstream riverbed was narrowed considerably.

Land titles describe the property as bordered by the river. The question posed was where, exactly, is the river? Is it where the water flows, or is it the river bed that had been cut during flood stages over the centuries?

Landowners contended that their property extends to the edge of the flowing water. The State of Texas, and many area sportsmen who hunt the Canadian River bottoms, insisted it should be the traditional river bed, which at some points is more than a mile wide.

The Texas Supreme Court, ruling on the lawsuit which has been in the courts for more than a decade, found for the landowners. In a case that could have implications for property law across the state, the court said the private property extends to the flow of the river.

Osler McCarthy, a spokesman for the Supreme Court of Texas, says the court's decision relied in part on U.S. Supreme Court decisions.

Those decisions, he says, hold that water flow determines new property borders along a river when the river changes because of an artificial structure so long as the property owners did not contribute to the change.

The ruling cut the state's ownership of land around the river from 14,000-plus acres to 138 acres.

The court said the landowners' survey, which reflects the current bed of the river, was valid, while the state's survey, which relies on the natural bed of the river, was not. The decision ends a 13-year tug-of-war over the land.

"Because the doctrines of riparian ownership may apply to changes in a river's course due to artificial as well as natural causes," according to Justice Deborah Hankinson, who wrote the unanimous decision, "We hold that changes brought about or influenced by an artificial structure, such as a dam, must be considered in marking the gradient boundary of a river, so long as the riparian owner does not cause or contribute to the artificial influence."

Michael Powell, an attorney for the landowner group that includes the E.H. Brainard II family, Morrison Cattle Company, oilman T. Boone Pickens and Amarillo's Whittenburg family, says the ruling is a landmark decision because it kills the state's artificial change theory.

That theory held the boundary between state and private land does not change with man-made changes to waterways, so surveyors do not need to take damming into account when determining public lands. Texas waterways, such as rivers and creeks, and the land underneath them are state-owned public property.

The outcome could affect other drainage systems in the state where the natural flow of a stream has been dammed, Powell says.

"The thirty landowners have carried on this litigation against the state since the early 1980s, and the Texas Supreme Court has unanimously confirmed today that they have always been right," says Jody Sheets, an attorney for the landowners.

The General Land Office has not determined the effect the ruling will have on other state-owned land on riverbanks, Wardlow says.

"We don't know where the decision goes," she says, "but we haven't found another place in the state that meets these facts."

Land Commissioner David Dewhurst says he supports the court's decision because it resolves the discord among property owners in the Panhandle.

The state's survey of the land was based on the "gradient bank" of the river, not the actual flow of the water. The state's survey described a river wider than the Mississippi at some points, with an average width between its banks of about 3400 feet and with the narrowest point of 1608 feet.

Using the natural banks of the river as a basis, the state said it owned more than 14,000 acres.

The landowners' survey, which the court approved Thursday, says the riverbed ranges from 17 feet to 30 feet wide, leaving the state with about 138 acres of the more than 14,000 they claimed.

In 1990, then-Land Commissioner Garry Mauro claimed that a ruling in favor of the landowners would cut into the state's Permanent School Fund, which earns $4 million to $5 million annually from riverbeds around the state. The $19 billion Permanent School Fund, which provides money for public schools in Texas, makes money from leasing mineral, oil and gas rights on state lands and the lands themselves.

Powell points out that there has not been any oil or natural gas speculation on the land.