When A River Changes the Course of Real Property
Mark Twain famously quipped “buy land, they’re not making it anymore.” However, whether due to lava flows or receding glaciers, the fact is that Mother Nature is making more land available all the time. Sure, lava flows and glaciers are somewhat uncommon, especially in Texas, but geography anywhere can change by weathering, erosion, or other natural forces. This article discusses a few of those natural forces and their effect on title to real estate.
When it comes to natural forces affecting geography, rivers are the most common culprit. If you’ve ever seen the Grand Canyon, then you have seen the substantial impact a river can have on its surrounding terrain. In addition to cutting downward into the earth, rivers have a tendency to change course over time. Yet, despite this, rivers often constitute the boundaries of adjacent land when divided for sale — I have personally read countless legal descriptions that contain the language “following the course of said river.” So if you happen to own a tract of land that abuts a river, you may be losing property, gaining property, or both in different places.
Rivers often wash away material from part of a riverbank and deposit the material to another part of the riverbank. In technical terms, the washing away of material is called “erosion” and the deposit of material is called “accretion” or “alluvion.” Under the doctrine of erosion and accretion, the owner of a tract of land gains title to the extended surface of the land that results from the gradual and imperceptible deposition of silt and soil; and, likewise, the owner of a tract of land that is diminished by the gradual and imperceptible washing away of land loses title to the portion washed away. Therefore, nature could literally be taking property away from you and giving it to your neighbor!
However, the doctrine of erosion and accretion is generally limited to cases where the addition or removal of land is gradual and imperceptible. The sudden and perceptible addition or removal of land is known as “avulsion.” Under the doctrine of avulsion, title is not gained or lost due to the sudden and perceptible addition or removal of land, and the ownership boundaries remain as they were immediately prior to the avulsion. The problem, however, is determining which doctrine applies. The test is currently as follows: The doctrine of erosion and accretion applies in cases when a witness may see from time to time that progress has been made, but they could not perceive it while the progress was going on.
Erosion, accretion, and avulsion are not the only means by which nature can add to or subtract from the surface of land. For example, new land may be exposed by the withdrawal of water under which it had previously been submerged. Conversely, water may rise up to swallow existing land or the land itself may sink down into the water. These forces are known, respectively, as “reliction,” “submergence,” and “subsidence.” Generally, title is gained by reliction, but is not lost due to submergence or subsidence.
Yet another factor may come into play for any of the forces discussed above. Specifically, streambeds are generally owned by the State of Texas. Therefore, if an island of land pops up in the middle of a river, it is generally owned by the State of Texas, regardless of the force of nature that created it.
Title disputes involving forces of nature are rare, but they can sometimes involve substantial areas of land. For example, a flood may change the course of a river by more than a mile in some cases. On occasion, natural changes to geography have even been at issue in territorial disputes between states or countries. In any case, while Mark Twain may have had it technically correct that land is not being “made” anymore, its location and accessibility is constantly subject to change.