As I have been aiming to spend more and more time on Texas rivers, I'm trying to get a firm grasp on what this is or how it's defined. This evidently originated out of a boundary dispute between Texas and Oklahoma on the Red River.

I thought maybe some fishermen or boaters could help clarify this.
I found the TPWD definition a bit confusing...

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Texas courts have adopted the "gradient boundary" as the usual dividing line between public ownership of a stream's bed and lower bank area, and private ownership of the higher bank area and the uplands beyond. Thus, there is generally no question as to the public's right to use the bank area up to the gradient boundary. Sometimes called the "mean" gradient boundary, it is located midway between the lower level of the flowing water that just reaches the so-called "cut bank," and the higher level of the flowing water that just does not overtop the cut bank. The cut bank is located at the outer edge of a stream's bed, separating the bed from the adjacent upland and confining the waters to a definite channel. Surveying the gradient boundary is a complex task performable only by specially trained persons.

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Also, follow up question: Since rivers and streams can change over time, while the definition doesn't change, the boundary itself does?

Thoughts?

Correct

We owned river front property in Wimberley for a long time and the way it was explained to me and made the most sense was they were not supposed to set foot on the dirt or rocks where the water stopped. We often had people tubing and they would just come out of the water up on our land and then decide to stay for awhile. It never was a real problem until we became the only real stretch of grass for a ways and people began to try to 'hang out' there every weekend. We pretty much left folks alone as long as they stayed in the water...not sure if this really helps or answers your question though.

Texas river/property ownership laws are very convoluted. Also depends on what type of survey it was originally recorded in as well.

You had French, Spanish and English surveying land.

Understanding the gradient boundary starts with reading Stiles' article in the Texas Law Review on what it is and how it's located. Absolute Land Surveying has kindly hosted a copy on their website.

http://www.abslandtx.com/blog/boundary-surveying/arthur-a-stiles-on-gradient-boundary

On the second to last page of the pdf at the link there is a sketch made by Stiles of the form of a qualified bank. I find reading the article is fairly useless without the sketch to visually describe the bank. The sketch is was not included in the article but has been circulated in Texas land surveying groups for a long time.

If anyone wants a clean copy of the Texas Law Review article you can email me. I made myself a scan of it at the Dallas County Law Library from their original copy. normaleagle at gmail.

Thanks so much for sharing that. I'll be sure to give it a read. I was scouring google images trying to find something but wasn't too successful. This helps to make at least some sense of it.

"Gradient" seems to suggest that the boundary is somewhere where the topography changes significantly. But that seems pretty loose and left up to interpretation. Looking back again at TPWD definition they refer to a "cut bank". Not all streams/rivers, or portions thereof, have a cut bank.

I wish it was more clear. Much too grey.

I've had the General Land Office in Austin tell me I could access certain areas here along the Guadalupe and then called the local GW to verify and he told me "that section of the Guadalupe is private" but wasn't able to cite any specific rulings. I feel our law enforcement doesn't always understand the law either with regard to navigable waterways.

AggieArchitect04 said:

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"Gradient" seems to suggest that the boundary is somewhere where the topography changes significantly.

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No. The gradient is the slope on the surface of the water at the appropriate level of flow. If you held a plumb bob out over a flowing river it would not hang in a direction that is perpendicular to the water surface. That's because the water surface has a downward slope to it. The gradient boundary is where this sloped surface intersects the river's banks at normal flow.

AggieArchitect04 said:

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Looking back again at TPWD definition they refer to a "cut bank". Not all streams/rivers, or portions thereof, have a cut bank.

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Read the article. Stiles specifically addresses the term 'cut bank'. He basically says it doesn't exist (as a single, identifiable thing) and has nothing to do with the boundary the court describes. TPWD should remove the language from their site in my opinion.

normaleagle05 said:

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AggieArchitect04 said:

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"Gradient" seems to suggest that the boundary is somewhere where the topography changes significantly.

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No. The gradient is the slope on the surface of the water at the appropriate level of flow. If you held a plumb bob out over a flowing river it would not hang in a direction that is perpendicular to the water surface. That's because the water surface has a downward slope to it. The gradient boundary is where this sloped surface intersects the river's banks at normal flow.

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LOL. I know.

raidernarizona said:

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I wish it was more clear. Much too grey.

I've had the General Land Office in Austin tell me I could access certain areas here along the Guadalupe and then called the local GW to verify and he told me "that section of the Guadalupe is private" but wasn't able to cite any specific rulings. I feel our law enforcement doesn't always understand the law either with regard to navigable waterways.

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To be fair, I'm not sure there is anybody out there that actually understands the law with regard to navigable waterways.

I've had more than one Texas GW tell me that know one understands the law as written.

There was a huge lawsuit a few years ago over the Canadian River. I don't recall all the ins and outs, but it had to do with who owned the land, the ranchers or the state, and thus, the oil underneath. Seems like the fight involved the original stream flow of the Canadian vs. the present boundaries after Lake Meredith was created.

The US Army Corps of Engineers has a listing of all navigable rivers in their district.

Navigable according to the federal government is very different than navigable in Texas boundary and resource law.

Talk to Dr. Ron Kaiser in RPTS. He knows more about water law than the rest of us here on Texags combined. Even he will tell you that nobody really knows how to apply the law in the field. There is plenty of established law in the courts to help adjudicate legal cases that find their way there...but when it comes to giving a landowner or river user a simple to follow rule or definition of what is legal, you are pretty much out of luck because none of the law enforcement agencies that will get called know enough about it either.

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Navigable according to the federal government is very different than navigable in Texas boundary and resource law.

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got it

Dr. Kaiser's water resources class was one of those that I loved and I was clearly the only one that did. I talked to most of the people in that class elsewhere on campus and to a man they hated that class. I have found what I learned there to be a great base for my professional practice regarding water issues in Texas. The class was well concieved and executed.

OP....to restate it in English, the gradient boundary exists where the water hits the dirt at "normal" flow levels. The linked article, written by the guy that invented the gradient boundary, describes the great lengths required to figure out what is "normal". It also discusses what the underlying authoritative basis is for how "normal" is derived. Two Supreme Courts have accepted his methodology.

As far as I'm aware, the public's right to access private property beyond the gradient boundary has never been litigated to the Supreme Court level. I'm not aware that it's been litigated at all. It probably has at lower levels, especially in criminal trials (trespassing). I've spent a lot of time navigating rivers and I can't imagine a reasonable argument that would strictly limit the public to within the limits of the gradient boundary given the purpose of the public retention of rights to waterways. The gradient boundary is explicitly located in favor of the upland owners. It does not conform with the actual public use of riverine waterways as I've experienced that use. This implies a use and enjoyment easement beyond the gradient boundary in my mind.