It’s Flooding Down in Texas: Effects on Real Property When a River Shifts

In one way or another, every Texan is familiar with the phrase, “it’s flooding down in Texas.” Either from the chorus to a classic blues jam belted out all over the local radio stations by one of our native sons, the late and great Stevie Ray Vaughan, or from watching a local news broadcast in the spring or late summer. Either way, these are the words all Texans have come to fear over the last few years due to the catastrophic flooding our great state has been experiencing.

Whether it’s global warming or just the natural pattern of weather, one thing a lot of people never think about is how this severe flooding can affect their real property. Many of us that live in or near a major city never give this a second thought, but for our rural neighbors, it is something that can cause quite the legal headache. This can arise when a river or stream that makes up the boundary of their land floods so severely that it changes course, and as a result changes the boundary line of their property.

So, what happens when a river suddenly alters its course? Do you now own more or less land than you did before? As with most legal inquiries, the answer begins with “it depends…,” and in this case “it depends” on how quickly the change took place.

The general rule in Texas is that boundary lines move along with changes in a river’s course. However, as always there is an exception. In this case, the exception centers around a concept called “avulsion.” Avulsion is a sudden and perceptible change in a river’s course, or a “sudden removal or deposit of riparian land.” Brainard v. State, 12 S.W.3d 6, 17. An avulsion can occur when a river suddenly abandons its old channel and creates a new one. Id. The primary distinction that the courts make in such cases is whether the changes in the river’s course were gradual and imperceptible or sudden and perceptible.

In a lot of cases, the legal description to large tracts of land utilize rivers and streams as geographic markers to establish boundary lines. When a river or stream is used to designate a boundary line this is called a “meander line.” In a legal description that establishes a meander line, the call will say something like “THENCE up the south bank of the Brazos River and following the general course of the River…”. When a river or stream is used to establish a boundary line in a legal description, that body of water becomes the actual boundary to the property. As the Court pointed out in Dellana v. Walker, “In such a description, the stream, and not the various courses and distances, is the real boundary.” Dellana v. Walker, 866 S.W.2d 355, 359.

In Texas, many of the large tracts of land are passed down from generation to generation without anyone ever checking their historically established boundary lines. Eventually, when the family attempts to sell all or a portion of their property, they have a survey performed on the property and come to the realization that the river or stream used as a boundary line all those years ago is no longer where it used to be. Now, they are faced with a difficult title issue right in the middle of the sale. This could potentially kill the deal, or at the least push the sale back for months while lawyers try to determine the correct boundary and size of the property.

So, if you own land on a river or stream, and that river or stream makes up the boundary to your property, this is something you might want to investigate. Getting ahead of this issue could mean the difference between an efficient transaction versus a long drawn out closing process that could ultimately cost you in more ways than one.

Please do not rely on this article as legal advice. We can tell you what the law is, but until we know the facts of your given situation, we cannot provide legal guidance. This website is for informational purposes and not for the purposes of providing legal advice. Information about our real estate practice can be found here.