Friday, April 19, 2013

The El Paso Problem

My grandma's grandfather, Helaman Pratt, first went from Utah to Mexico in 1875 and his descendants have been wandering back and forth over the border ever since. My grandma herself spent her growing-up years as far south as Mexico City and as far north as southern Idaho--with many of those years spent in the area around El Paso, Texas. 

Now, the borders around El Paso were defined in the mid-1800s by the Rio Grande. But as my grandmother told me when I was a child, the river never did know or care that it was a border. So from time to time, it's up and changed course.

Which creates an interesting dispute: where does the border go when the river shifts?

You could look up past disputes and find several different answers from several different negotiations. But if you were the judge, what would be your initial impulse?

Does the border remain at the place where the river was when the border was first negotiated? Or is it better to just say the border moves when the river does?

There are more complicated options, of course, for those of you who prefer detailed jurisprudence. Are there other factors which need to be taken into account to determine whether the old course or the new course of the river should be followed? Should the new border somehow split the difference between the river's old and new courses? Etc.

I think this is a fascinating problem. I would love to hear your responses: where should the border go when the river shifts and (perhaps more importantly) why?


  1. Well my boring answer from my law school property class that covered just this issue (albeit in Missouri or somewhere) is that river borders move with the river when it changes course gradually over the years, but that if there's a huge flood or something and the course of the river changes drastically overnight the border remains where it was before the change. That kinda makes sense in that people can "see" small changes coming and prepare for them, whereas it would be "unfair" to have their property suddenly in a new country when they wake up in the morning. I kinda like that approach.

    1. No fair giving away the law school answer right up front!

      But since you did, I'll still ask anyone who reads this comment before coming up with their own answer: which side do you err on?

      Let's say two property owners come with a dispute where they have the survey map from the time the border was decided and a recent survey map that's clearly and significantly different, but can't establish or agree on when or how rapidly the change happened. How might you rule if you're unable to get reliable data about when and how the course change occurred?

    2. Another hypothetical case: let's say there were houses on the river's south bank. The river changed gradually and crept through their yards, so the house owners tried to put up barriers to keep the river from flowing right under them. As it turned out, though, the barriers actually diverted the river even further south, leaving the houses now on the river's north side.

      How would you rule in this case? The yards changed sides in a gradual shift--does that mean they go in the other country? The houses themselves changed sides in a sudden shift, so they should stay on the same side by the logic Austin provides--although the shift was man-made...should the same logic be followed for natural and human-caused changes in the river's course?

    3. I'll answer your hypos later so that nobody else steals my intellectual property for use in their own answers . . . :)

    4. If it can't be determined when/how fast the river changed course, I'd probably just say that the river remains the border--it's easier to tell, and I like the idea of letting God decide where boundaries are, reminding us that property rights are ultimately unimportant.

      For the second hypo, people accidentally diverting a river drastically, I think I'd treat it as any other sudden change and keep the border where it was--I don't think they should be punished for trying to protect their own property from being eroded.

      Shooting completely from the hip there, but those are my first impressions :)

  2. Replies
    1. No copying from the lawyer-in-training! ;)

      Or at least: what strikes you as so appealing about his answer?

  3. I like his answer because "That kinda makes sense in that people can "see" small changes coming and prepare for them, whereas it would be "unfair" to have their property suddenly in a new country when they wake up in the morning." That's why. Makes sense to me.

    On the other hand, we could look at the opinions of my native ancestors:
    "What is this you call property? It cannot be the earth, for the land is our mother, nourishing all her children, beasts, birds, fish and all men. The woods, the streams, everything on it belongs to everybody and is for the use of all. How can one man say it belongs only to him?" -Massasoit

  4. The slowly moving river thing seems a little strange to me. Such a law would make sense in an era where geographic features are the only easy way to partition and define property and boundaries. Now that we have GPS, it seems like a relic of the law. Why should a person's property depend slow moving natural processes like erosion, when these days you can pretty accurately define boundaries by GPS coordinates?

  5. Reminds me of the man who was glad the two governments decided his home was not on the Russian side of the border, because he wasn't sure he could stand another Russian winter.



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