Saturday, August 27, 2011

Santa Fe Trestle Trail Construction

Bridging the Trinity River at the end of the Central Dallas floodway, the old Atchison Topeka & Santa Fe Railroad Trestle is being retrofitted into a hike and bike path. Below are some recent photos from August 2011 showing the most recent construction progress. The Oak Cliff (south) side of the path is largely complete. The north side still has considerable construction to finish and requires a climb up scaffolding to reach. Even though access to the bridge is easy from Oak Cliff/Moore Park, it's still an active construction area and should be avoided till complete.

Video riding up the approach and across the Santa Fe Trestle Trail, August 2011:

The bridge was originally built in 1926 and served as a main artery for the AT&SF Railroad in Dallas. Some old signs along the old right of way can still be found in the overgrowth. In 1985 the trestle was burned in an overnight fire destroying over half the structure. DART purchased the railway and bridge in 1989 later deciding to build a new bridge next to the old Santa Fe trestle rather than retrofitting the existing bridge. Since that time, the Corps of Engineers has floated the idea of removing it as the bridge acts as a partial obstruction for flood debris during high water.

Below is a photo taken in June 2010, a month or so before construction began on the Santa Fe Trestle Trail and the Dallas Wave whitewater park.

Santa Fe Trestle June 2010

At the time, the riverbank was overgrown with brush, poison ivy and ragweed.

Below is a video clip shot the same day, June 2010 of some fisherman boating up the Trinity River:


 Below is roughly the same location in late May 2011, roughly 11 months after the first photo was taken. In the photo you can see the Dallas Wave, whitewater feature.

Southern approach ramp from Moore Park looking towards the trail bridge and DART bridge

Santa Fe Trestle Trail looking south

Incomplete north approach looking north towards Fair Park

Completion is rumored to be late 2011. The Trestle Trail shares the same name as the Santa Fe Trail that connects White Rock Lake with Deep Ellum. When complete the two trails will not connect to each other. All they share is a similar name. Access to the Santa Fe Trestle Trail will be from Moore Park on 8th Street and from a yet to be constructed parking area near the eastern end of Riverfront Blvd.

To access the levee trail and Santa Fe Trestle from White Rock Lake, I would suggest riding the Santa Fe Trail towards Fair Park. Through Fair Park and down Grand Avenue. Inside Fair Park, Grand Avenue is the gate closest to Big Tex and the main Fletcher's stand. Head south out that gate. Hang a right on Lamar, left on Corinth, left on Riverfront.

Heads up: In the past I would have suggested riding straight out Grand Avenue and crossing the Union Pacific tracks between the DART tracks and the Andrews Beer Distribution Warehouse. Due to safety concerns regarding recent pilferage of rolling stock, the Union Pacific Police heavily patrol the area. I was stopped once by one of their officers. He was a nice guy, just wondering what I was doing. He also made the point that I should not cross there.

The option of riding down Lamar to Corinth then under the railroad tracks using the Corinth underpass seems dangerous since it is so dark and the vehicle traffic is moving fast. I would have to coin flip which route to take. The easy route over the tracks or the more dangerous but legal Corinth route. Good news if you live in Oak Cliff you have it made!

Monday, August 22, 2011

Water Utility Project Clearcuts Portion Of McCommas Bluff Preserve

I'm somewhat disappointed to see Dallas Water Utilities flexing their muscle on a project at McCommas Bluff Preserve. Over the years that I have been mountain biking in the Great Trinity Forest I have always brushed off right-of-way clearings, alignments and heavy construction. Newly cleared access roads and water main excavations have always opened new avenues to explore the woods into areas that were previously inaccessible.  This time it's different.

I know that the soil in the river bottoms is so fertile that a bulldozer charging through the understory will be brushed off by the surrounding woods in a matter of weeks. A space opens and something nearby jumps into the fray to take the place. I also know that the Trinity River serves as the mother of all utility right of ways for gas, sewage, fiber optic cable and freshwater mains from area lakes. You have to break a few eggs to make an omelet. I realize the importance of utility right of ways and the need to keep them free of debris, brush and trees. If a company wanted to drill a gas or oil well down there I would be all for it. This time it's different.

I'm also probably guilty of not mentioning the somewhat difficult circumstances I encounter on a regular basis in the Trinity Forest. The illegal dumping, near constant sound of distant gunfire, butchered animal parts, marijuana farms, burned vehicles. I can look past that with a 1000 yard stare knowing distractions like that help keep some of the more special places, special. This time it's different.

McCommas Bluff has been a focal point of human activity for centuries. It was first mapped by the French explorers. It was first settled by William Shelton in the 1840s, an Illinois veteran from the Mexican War. The bluffs carried his name, Shelton's Bluff until shortly after the Civil War. In 1850, he married into the Dawdy Family who ran a ferry service on the Texas National Highway across the Trinity River downstream a few miles. Pronounced "Dowdy", the misspelling took and Dowdy Ferry Road is now over the old Texas National Highway route. Shelton, the Dawdy and Beeman families were all Illinois natives and they knew each other prior to immigrating to Texas. Dawdy and Beeman also appear together on muster roles for Bird's Fort. Together the three families owned most of the land along the Trinity just south of what is now Fair Park to Hutchins, in what was then Nacogdoches County in the Republic of Texas. The McCommas family purchased the Shelton land after the passing of William Shelton. The name Shelton's Bluff stuck through the Civil War, eventually changing names to McCommas Bluff on maps in 1880.

When efforts were made to navigate the Trinity River for the first time in the late 1800's, McCommas Bluff for a brief time was a beehive of activity. Land for a inland port was platted and surveyed. Some homes, a few businesses and a wharf for moving bales of cotton was even constructed. McCommas Bluff served as a staging center for cotton, bales were barged south to Porter's Bluff near present day Rice, Texas where they were put on larger barges before heading for the the coast. Nothing ever came of the plan since the river was not suited for boat traffic of that type.

In 1986, to commemorate the Texas Sesquicentennial , twin Texas Historical Markers were erected by the Texas Historical Commission to commemorate the history of the Trinity River. Identical historical markers were placed at McCommas Bluff and Reunion Plaza(near Reunion Tower). They read:

Navigation of the Upper Trinity River

Since the founding of Dallas, many of the city's leaders have dreamed of navigation on the upper Trinity River, but none of their attempts achieved lasting success. Fluctuating water levels and massive snags in the river below Dallas hindered early navigation. In 1866 the Trinity River Slack Water Navigation Co. proposed dams and locks for the waterway. Capt. James H. McGarvey and Confederate hero Dick Dowling piloted "Job Boat No. 1" from Galveston to Dallas, but the trip took over a year. In 1868 the Dallas-built "Sallie Haynes" began to carry cargo southward. Rising railroad freight charges spurred new interest in river shipping in the 1890s. The Trinity River Navigation Co., formed in 1892, operated "Snag Puller Dallas" and the "H. A. Harvey, Jr.," which carried 150 passengers. The "Harvey" made daily runs to McCommas Bluff, 13 miles downstream from Dallas, where a dam, dance pavilion, and picnic grounds created a popular recreation spot. In 1900 - 1915 the U. S. Government spent $2 million on river improvements, including a series of dams and locks, before World War I halted work. A critical 1921 Corps of Engineers report ended further federal investment. Despite sporadic interest in later years, the dream of Dallas an an inland port remains unrealized.

You can walk right out of Reunion Tower and see the historical marker. It's twin at McCommas Bluff was stolen a number of years ago and never replaced. The post to which the historical marker was affixed remained. Until last week. When it was bulldozed. It had sat there since 1986, a relative newcomer to McCommas Bluff. The trees around it, while somewhat short in stature, varied in age from 50 to over 125 years old. Trees that witnessed most of the history mentioned above. They managed to survive the dozen other pipeline projects, gas line installations and water main redos.

I know how much fun running a chainsaw can be. Even better when you can just cut down stuff and not have to bother with cleaning it up. The photos below are before and afters of what it looked like as little as a month before the clearing began.

McCommas Bluff July 2011
One of the highlights of visiting the Great Trinity Forest for me is my usual turn around point, the end of the trail, what is usually a somewhat spectacular early evening view of McCommas Bluff from the far bank. It's about 20 miles from home, halfway. Makes you feel like you have been to some far off place seeing a piece of geography better suited for the Hill Country. I'm sure if it was in the Hill Country along the Guadalupe or Frio, Willie Nelson would have written a song about it. Making it here from where I live in North Dallas is usually no small feat, navigating the roads down to White Rock Lake, then south through what are the toughest and possibly most dangerous neighborhoods in Dallas.

McCommas Bluff August 2011

Both photos were taken virtually in the same spot. The large tree trunk in the foreground was from a 65 year old tree. Like I mentioned above, I respect the need to clear right of ways for projects. The results are somewhat drastic. Especially when one does not clean up after themselves.

Mountain bike ride with DORBA members April 2011 Great Trinity Forest

August 2011
Both photos were taken within 50 feet from one another. The cedars chopped down on the far bank have tree rings noting 50-125 years of growth on them. The trees that are closest to the waters edge show evidence that they had been sitting over a week. August 13th as a result of a rainstorm, the river rose three feet. The tree debris closest to the water shows mud lines where the river submerged the branches. You can also see a pipe with a layer of concrete over it running vertically down the bluff. This is the ROW for utilities. I would gather that in the past, any construction did not need such a large footprint to accomplish their construction.

McCommas Bluff July 2011

McCommas Bluff August 2011

It's just not the trees that are gone. It's the view. Arguably the only naturally photogenic piece of property on the Trinity, the view is damaged for a lifetime. Trees that grow on nearly bare limestone take many decades to grow. The trees chopped down cannot be replaced. I'm feel fortunate that I had the opportunity to take some photos of the bluffs and climb all over them before the clearing took place.

It's easy to answer the question of why this happened. Simple. They are working on a large water main. The harder question to answer is if the city and county are really serious about turning the "Great Trinity Forest" into a place that will attract an average person. Clear cutting the entrance to a nature preserve is probably not the way to do that.

They have budgeted an amount for the Great Trinity Forest equal to what it cost to build the new Dallas Cowboys Stadium. With little to show for it. Upstream from McCommas Bluff, just a 15 minute walk up the trail, they stage feel good tree plantings of small saplings at the Trinity River Audubon Center. The goal is to change the perception people have about the surrounding woods and how past transgressions of illegal landfills and pollution are things of the past. Downstream, just a 15 minute walk down the trail, is Gateway Park where the city and county have invested at least a million dollars to build a grand southern gateway to the Great Trinity Forest. You know where the Audubon Trail and the Gateway Trail meet? Yep. Right at that big bulldozed mess at the McCommas Bluff Preserve.

I know some people would be outraged that giving a piece of land status as not just a park, nature preserve and state historic landmark does not afford it some kind of protection. I'm not really one of those people that gets knee jerk reactions like that. This time it's different.

Just food for thought. You stay classy Big D.

Monday, August 15, 2011

Trinity River Trail Phase II Construction

Trinity River Trail Bridge Dallas Texas

What has been a sleepy old ranch road for over a century in South Dallas is now being transformed into Phase II of the Trinity Trail. Featuring a new bridge over the Trinity, the trail will serve as a backbone to connect north and south, east and west.

Horseback riders in Great Trinity Forest, future trail site

The trail and bridge will allow access from Oak Cliff into Pleasant Grove or Rochester Park to Hutchins. Strange marriages of communities that have always been separated by the river, freeways or geography even though they sit rather close to one another.

Future Trinity Trail near Simpson Stuart Road

Construction of Phase I of the Trinity Trail began in 2008 and was finished in 2010. Phase I starts at the Loop 12 Boat Ramp Parking Lot and terminates at Simpson Stuart Road. You can read more about it in a previous post in the blog here:

Great Trinity Trail Phase I

Actually, I'm not sure what the official name of this trail might be. The city has called it the Great Trinity Trail, Trinity River Spine Trail, Trinity Forest Trail, Trinity Trail, Joppa Preserve Trail, Trinity River Interpretive Trail. Take your pick.

Video of Trinity Trail Phase II before construction:

Phase II will connect Phase I with the Trinity River Audubon Center. As of Mid-August 2011 quite a bit of the Trinity Trail has been completed north of the new bridge. The concrete trail now extends from the north end of the bridge to within a few hundred yards of the Trinity River Audubon Center

Trinity River Trail near Audubon Center

The photo above shows the newly completed section north of the bridge. The construction here seems fairly straightforward as the path moves away from the river and onto higher ground.

Trinity River Bridge and Trail looking south

I believe the original plans included an interpretive site of some kind close to where I took the photo above. In the woods to the immediate left are the remains of an old Caddo Indian settlement. The woods in this area are bisected by Woodland Springs the mouth of which is only a couple hundred yards south of the bridge. I have been told that some skeletal remains have been found in this area as recently as 2002-3. Pottery shards, flint tools, beads and shells have also been found in the same area along Woodland Springs.

This particular spot also serves as a great jumping off point for exploring the river to the south. From here a crude trail exists for about a hundred yards, eventually reaching a concrete spillway of sorts for Woodland Springs. This is the best spot for crossing the stream bed as you will not get muddy. Crossing the concrete spillway you enter the McCommas Bluff Preserve. A better trail exists here that will take you down to the actual bluffs. Beyond the bluffs there is yet another trail/dirt road that connects McCommas Bluff Preserve with Gateway Park. Gateway Park is located at Dowdy Ferry Road and I-20 and will serve as the future anchor on the south end of the park system.

Below is a map, with green dots highlighting current and future trail head access points. Click the pic for a larger version

Dallas Trinity Trail Map with trail heads noted in green
The trailheads are:
Loop 12 Boat Ramp
River Oaks Park
City of Dallas Eco Park Building on Simpson Stuart Road
Dallas Trinity River Audubon Center
Gateway Park I-20/Dowdy Ferry

When complete it will be possible to travel from Bachman Lake(Harry Hines @ Shorecrest where the levee starts) down to Dowdy Ferry @ I-20. The route is exactly 25 miles one-way. It utilizes as much dirt road and trail as possible while minimizing street travel. Travel via street is needed to get around the Wastewater Treatment Plant on Sargent Road. No way around it. Even with the detour, one is only exposed to a couple miles of pavement on low traffic residential streets through Cadillac Heights. The route also makes use of a forgotten John Phelps Trail in the Bonnie View Area and a nice/clean John Phelps Recreation Center on Tips Blvd.

Below is the GPS data for the route:

I'm not aware of any other large metro areas in the United States where one can ride a bike 50 miles round trip on mostly unpaved surfaces. Sure will not be everyone's cup of tea as the distance is somewhat far. But it's a reality. People often complain about the lack of access or public land to do things in Texas. Here we have plenty of it in the middle of town. Irving to Hutchins, one end to the other.

Construction for Phase II is scheduled for completion in the Winter of 2012. As of August 2011, much of Phase II is still not usable and is an active construction site you should stay away from. The route in the link above should not be used until construction of Phase II is finished. Mile 20(Simpson Stuart Road @ Joppa Preserve) through Mile 22( bridge near Audubon Center) are under heavy construction with open pit excavation and heavy machinery.

Where the north bank of Phase II seems to be going smoothly, the south bank is seeing a major rework of the river bank. The City of Dallas has a 72" water main that runs through this area and a project is underway to reinforce the riverbank to protect the water main from erosion.

Dallas Water Utilities Water Main Stream bank Project Trinity River, future Trinity Trail site

As you can see, heavy construction is underway on about 1/4 mile of the south riverbank. A cofferdam holds back the river for construction of piers to support a future rock wall.

I imagine construction of the bike path will not begin until this large project is complete. This seems to be a rather large undertaking and seems to be even larger in size than the Pavaho Pump Station project further upstream.

Piers on future Trinity Trail in Dallas

The back story on this area is unique. The State of Texas originally purchased this property along with the land where the McCommas Bluff Landfill now sits. The purpose was to build a turning basin for river barges for the never built Trinity River Navigation Project. That project, much like the current toll road idea never really got off the ground. The plan for the particular land seen above was for a State Park. It was actually put into the inventory of  Texas Parks and Wildlife, given the name of Trinity River State Park. Under the large canopy of native pecans that cover the land here plans were drawn up for a lake, campsites, RV area, hiking trails. On some appraisal district maps it still shows as Trinity River State Park. Cutoff by the landfill, this pocket of nice parkland sits unused. In 1983 the Texas state legislature approved a measure designating a 200 foot wide section of land on either side of the Trinity River for the first 11.7 miles downstream of the levees as a state park. There were some funding issues that kept this from becoming a reality. Sounds familiar!

Double Special Reminder: Phase II is still not open and is a potentially dangerous and active construction area.

Wednesday, August 10, 2011

Death of a Texas Lake

It's officially a 103 degrees at 5pm on a Saturday in July. The thermometer I'm carrying says 113 degrees. Looking across over a mile of dry lake bed in South Dallas through the waves of heat a figure appears. Through the crinkles of heat it appears to be a human, running. As it approaches, the figure takes the shape of a man in a kilt, running at break neck speed to the south. I have seen a number of odd things along the Trinity. But never a man in a kilt running on a pancake flat plain in the scorching Texas heat of July. Turns out I was in the path of a hash harrier club conducting a race from Loop 12 to Simpson Stuart and beyond. Not down the new multi million dollar paved Trinity Trail but using the Trinity River itself as a course then crossing the lake, briar thickets and swamps. Pretty remarkable considering the terrain and river in that area is usually impassable, impossible, improbable.

When at regular pool, Lemmon Lake is a few hundred acres in size commanding a vast piece of real estate in Southern Dallas county near Loop 12. Originally called Miller Lake, it was owned by the Miller family who owned much of what is now South Dallas. One of the handful of original pioneer families they owned much of the land from what is now the Dallas Zoo all the way to Hutchins, Texas. I cannot pin down an official date as to when the lake was actually impounded. It is drawn in maps of Dallas County dating back to the 1880s. In 1897 the lake and some of the surrounding property was purchased by the Trinity River Rod and Gun Club on May 25, 1897. Many of Dallas most prominent citizens bought shares in the club.

As insurance against Lemmon Lake going dry in a drought, a flume and aqueduct was constructed in 1897. Water was tapped from Five Mile Creek to the west and brought over via ditch to Lemmon Lake. Known as Cobb's Ditch. The ditch is still intact for the most part. It was built with 7 foot high levees on each side of the ditch and supplied water through numerous Texas droughts and dry spells. In the 20th century, a concrete mixing plant was built off of I-45 and robbed Lemmon Lake of this water source causing silt to build in the lake.

Cobb's Ditch now lies directly south of A Maceo Smith High School. In 2001-2003 the swampy area behind the school gained national notoriety for a population of alligators that took up residence there. Some beavers moved up the ditch from Lemmon Lake and constructed a dam to the immediate southeast of the football practice field flooding some of the land. With the arrival of beavers and nutria, the alligators were quick to follow.

With Cobb's Ditch now only serving as an infrequent water source from runoff, Lemmon Lake is faced with going completely dry in periods of prolonged drought conditions.

Below are a series of photos taken in one week intervals starting around July 17, 2011 showing the somewhat rapid evaporation and drying of Lemmon Lake...

Sunset over Lemmon Lake two weeks prior to going dry

July 24, 2011

Sunset over Lemmon Lake one week prior to going dry

July 31, 2011

A dry Lemmon Lake looking south

Dried lakebed Lemmon Lake July 2011

By July 31st, Lemmon Lake was dry save for a 10x10 foot puddle located in the middle of the lake. It was here in this puddle where the last of the waterborne swimming residents of Lemmon Lake were in the last day of their lives. Below is a short clip of a dozen or so alligator gar and a couple freshwater drum in that pool of water

That's life. Whatever lies in that pool will make a meal for the feral pigs or coyotes who frequent the area and weave a spider web of tracks in the rapidly drying playa. Not much ever goes to waste here. I have seen 200 pound feral pig carcasses picked clean by scavenger animals in 24 hours. The demise of one animal feeds many others. The feral pig below, which I would guess weighed around 90 pounds was picked clean less than 24 hours after I took this photo. The pig was on the Trinity River Trail Phase II and appeared to have been killed the previous night. Unknown how it was killed, not by a human. It did have a broken neck. Buzzards had already begun to nibble at the easy pickings.

Dead Feral Pig Trinity River Trail Summer 2011

The summer of 2011 has been a record breaking summer in a number of ways. The sustained heat, high overnight temperatures and lack of rainfall have contributed to a number of the long standing records falling in Dallas. The benchmark of the searing 1980 summer by which all other summers are judged here in Dallas, has seen record after record eclipsed by the summer of 2011. South Dallas, in the Great Trinity Forest area actually saw a decent amount of rainfall in the late spring. A number of very powerful storms blew through Southern Dallas County dropping large amounts of rain, hail and even tornadoes. Since May 25, 2011, the day of the last measured rain in that area, it has been a very dry affair.

The drought is not the longest in Texas history. A 10-year drought that took hold in 1940s and lasted into the next decade holds the record, but that was in the days of radio and black-and-white television, when the weather was discussed at the coffee shop, not constantly tweeted about or glaring on iPhone screens. This year’s weather is feeding the 24-hour news cycle, prompting reporters to go beyond the fried-egg-on-the-sidewalk story. There is no new news in the weather, just a parade of whimsy and warning.

While the aquatic animals have all perished, others take the heat in stride. The damp marshy reeds where they meet the traditional edge of the lake are often full of barking green Texas Tree Frogs in the evenings. I have never seen them before up close. They seem to prefer the boundary area where the abrupt tree line meets the cat tails, reeds and sawgrass of the lake.

Texas Tree Frog at Lemmon Lake

It has been difficult to find out much about Lemmon Lake. Roughly 1/4-1/3 the size of White Rock Lake few people alive know much about it. Those that did visit it in its heyday are long since deceased. At one time, in the early 1900's, the railroad even had a special stop for Lemmon Lake called Lakewood Station. At the time the lake was not even in Dallas and could best be described as 8 miles from downtown, near Lisbon, north of Hutchins or east of Pleasant Run. Back then as it almost is today, it sits in the middle of nowhere. Really the only living witnesses to that time are the old trees that line the lake.

“If you don’t like the weather, stick around.” So goes the old saying in Texas, a land where Mother Nature’s fickle ways are on display year round. Someday, the lake will be back.

Thursday, August 4, 2011

Portaging the Dallas Standing Wave on the Trinity River

Seems that the City of Dallas is trying to limit portage and scouting of the stream bank around the Dallas Wave Whitewater course. Recently the city has sent notice to a Dallas canoe outfitter, Canoe Dallas, that serves him effective trespass notice if he enters the Dallas Wave and Trinity Trestle area on the Trinity. The law clearly does not favor the City of Dallas position. Outlined below are a number of laws and rulings countering the City of Dallas position. The city can limit access to launching boats from the Trinity River Standing Wave/Dallas Wave Park but they cannot limit access to safe portage around their navigation hazard.

Below are some notes and legal briefs describing the right of river users to scout and safely portage the river.

Use of Stream Bank to Scout and Portage Hazards

Historically, the law of Texas, both in statute and in common law, has protected public rights relating to navigable streams. Although until recently there appeared to be no Texas statute or case specifically dealing with scouting or portaging, several aspects of Texas law seem to support the proposition that a portage right is a necessary corollary to the fundamental right of navigation. The authorities set out below support the principle that when a person floating a navigable stream encounters an obstruction like a log jam or a dam, or some other potential safety hazard, the navigator has a limited privilege to go onto adjoining private land to scout and if necessary make a safe, reasonable portage. The intrusion on private land should be minimized.
Other states that have addressed the issue concur in recognizing a portage right. Of course, as is sometimes the case, particular or peculiar fact situations may alter the application of general concepts in specific instances. A recent Texas statute acknowledges that stream users do portage over or around barriers and scout obstructions, and it precludes such use from creating a prescriptive easement over the private property.
There is a fundamental distinction between using private land to portage around an obstacle and using private land as a short cut to get to or from a river. In Texas one has no right in general to cut through private land simply for convenient access to or from a stream.
Dallas Paddling Trailhead

Portaging Obstructions as a Traditional Part of Navigation

Obstructions have always been a natural part of streams. As the waters flow through the land, streams become obstructed by fallen trees, log jams, rapids, sand bars, shoals, etc. Historical accounts of navigating streams often mention the hazards and portages encountered. See, for example, Kenneth G. Roberts and Philip Shackleton, The Canoe, a History of the Craft from Panama to the Arctic (1983). Thus, portaging has always been a part of navigation.
The U.S. Supreme Court has explained that under the federal test of navigability (involving capacity for use in interstate commerce) the presence of a portage does not defeat navigability:
Navigability, in the sense of the law, is not destroyed because the water course is interrupted by occasional natural obstructions or portages; nor need the navigation be open at all seasons of the year, or at all stages of the water.
Economy Light & Power Co. v. United States, 256 U.S. 113, 122, 41 S.Ct. 409, 412 (1921).
As discussed elsewhere, Texas law has long recognized the public’s navigation right, a right of free passage along navigable streams. Texas law disfavors obstructions to navigation. The right to navigate would be meaningless if the presence of a single hazard—a fallen tree, for example—could legally “cut off” navigability.

Advice to Scout and Portage...

In National Publications

  • The American Red Cross, Canoeing and Kayaking (1981) pp. 5.12-5.15.
  • Dave Harrison, Sports Illustrated Canoeing (1981) pp. 154-155.
  • William “Bill” Hillcourt, Official Boy Scout Handbook (1979) p. 161.

In Local Publications

Texas Rivers and Rapids, a commercial guide describing commonly used waterways, has been through several editions over the past three decades. It advises a number of portages on various streams. Volume II, published in 1973, includes this advice in a discussion of river currents: “Never run a dam or drop unless absolutely necessary.” The book cautions, for example, of a portage along the Clear Fork of the Trinity River near Fort Worth:
Roll’s Dam is approximately ten feet high and should not be run. It is an easy portage on the right bank adjacent to the dam at low water levels.

At high levels, the portage is longer and must be started on the left bank quite a way upstream from the dam. Use the left bank portage only when necessary because you will have to travel on private property behind a house.
Volume VI of Texas Rivers and Rapids, published in 1983, warns of particular hazards potentially requiring portage on a number of rivers, including the Brazos, the Colorado, the Frio, the Guadalupe, the Leon, the Neches, the Pecos, the Rio Grande, the San Marcos, and the Trinity. It also cautions of log jams on several streams.
The Big Bend Natural History Association in cooperation with the National Park Service publishes guides to floating the Rio Grande, not only within Big Bend National Park but also downstream along the “Lower Canyons.” The Lower Canyons guide advises boaters of several locations where challenging rapids should be scouted or portaged, including using private land along the Texas side of the river.
The Lower Colorado River Authority has published a guide to the Lower Colorado, from Austin to the Gulf of Mexico. In its discussion of public and private river rights, the guide contains the following passage (p. 13):
Along the Colorado River, almost all the land outside of the riverbed is privately owned. However, if a boater encounters a hazard like a log jam, low-water dam or some other obstruction, the boater may get out and scout to see whether there is a safe route through and portage if boating would be dangerous. The intrusion on private land should at all times be minimized.
The Greater New Braunfels Chamber of Commerce distributes the “Guadalupe River Scenic Area Information Map and Pamphlet.” It highlights the time-honored advice, “WHEN IN DOUBT STOP AND SCOUT.” The map of the Lower Guadalupe marks the locations of dangerous falls, rapids, and dams, as well as the low bridge at Gruene. It also states, “DO NOT RUN HORSE SHOE FALLS.”
The City of New Braunfels has posted maps of the popular Comal River at several public access points. Those maps note two spots where “Safe By-Pass Steps” are available to allow passage around rapids. One spot is just above the tube chute, and the other is just above the old Camp Warnecke dam (now adjacent to the Schlitterbahn water park).


Use of Stream Banks Under Civil Law

The civil law (the law of Spain and Mexico, and the early days of the Republic of Texas) recognized the right of a navigator to use the banks, even though privately owned, for various purposes associated with navigation. The civil law still applies to particular land grants. The permitted activities set out in law 6 of title 28 of the third Partida (quoted below) amount to what might be considered today as fairly substantial uses. It is difficult to imagine that a generally less intrusive use involved in a portage would be forbidden.
Law 6. That Every One may Make Use of Ports, Rivers, and Public Roads. Rivers, ports, and public roads belong to all men in common; so that strangers coming from foreign countries may make use of them, in the same manner as the inhabitants of the place where they are. And though the dominion or property (senorio) of the banks of rivers belongs to the owner of the adjoining estate, nevertheless, every man may make use of them to fasten his vessel to the trees that grow there, or to refit his vessel, or to put his sails or merchandise there. So fishermen may put and expose their fish for sale there, and dry their nets, or make use of the banks for all like purposes, which appertain to the art or trade by which they live.

Statutory Acknowledgement of Portaging and Scouting

Parks & Wildlife Code § 90.007. Landowner Rights.
(a) A prescriptive easement over private property cannot be created by recreational use of a protected freshwater area, including by portage over or around barriers, scouting of obstructions, or crossing of private property to or from a protected freshwater area.
(b) Nothing in this section shall limit the right of a person to navigate in, on, or around a protected freshwater area.

The Common Law

Since January 20, 1840, the common law has been included as part of the rule of decision for Texas courts. The pertinent statute now reads:
“The rule of decision in this state consists of those portions of the common law of England that are not inconsistent with the constitution or the laws of this state, the constitution of this state, and the laws of this state.”
Texas Civil Practice and Remedies Code § 5.001.
As explained by the Texas Supreme Court, this statute is not an adoption of the common law as it was in force in England in 1840, but rather of the common law as declared by the courts of the different states of the United States. See Grigsby v. Reib, 153 S.W. 1124, 1125 (Tex. 1913).

Recognition by Other States

A right to portage has been explicitly recognized in a number of states in a variety of contexts. For example:
Montana. The Supreme Court of Montana in construing Montana law has stated:
Therefore, we hold that the public has a right to use state owned waters to the point of the high water mark except to the extent of barriers in the waters. In the case of barriers, the public is allowed to portage around such barriers in the least intrusive way possible, avoiding damage to the private property holder’s rights. ... [T]he right to portage must be accomplished in the least intrusive manner possible.
Montana Coalition for Stream Access v. Curran, 682 P.2d 163, 172 (Mont. 1984).
Ohio. The Ohio Attorney General has concluded:
The reasonably necessary entry of a boater upon land adjacent to a dam obstructing a navigable watercourse in order to portage his boat around the dam by the nearest practical route and in a reasonable manner constitutes a privileged intrusion on the property of the landowner.
Op. Ohio Att’y Gen. No. 80 094 (1980).
Nebraska. A Nebraska statute allows an affirmative defense to a criminal trespass charge if:
The actor was in the process of navigating or attempting to navigate with a nonpowered vessel any stream or river in this state and found it necessary to portage or otherwise transport the vessel around any fence or obstructions in such stream or river.
Neb. Rev. Stat. § 28-522.
New York. Under New York law, the beds of most navigable streams are privately held, subject to the public’s rights. A recent court opinion rejected a plaintiff landowner’s attempt to obtain a summary judgment for trespass against boaters who had scouted and portaged in the bed of a stream considered navigable by the court:
Pursuant to the public trust doctrine, the public right of navigation in navigable waters supersedes plaintiff’s private right in the land under the water. ... Plaintiff contends that the public right of navigation is limited to riding in boats and does not include the right to get out of a canoe and walk in the bed of the river to guide the canoe through shallow water, avoid rocks or portage around rapids. According to plaintiff, the absence of any case law specifically including such activities in the public right of navigation establishes that no such right exists. Defendants contend that the public right of navigation includes the right to engage in reasonable activities that are incidental to and necessary for navigating the river. The absence of case law, according to defendants, is the result of no one ever having previously claimed that the public right of navigation did not include the use of the river bed to portage or engage in other activities incidental to and necessary for navigation. We agree with defendants.
Adirondack League Club Inc. v. Sierra Club, 615 N.Y.S.2d 788, 792 (A.D. 3 Dept. 1994).
On appeal to New York’s highest court, the Court of Appeals stated:
[T]he existence of occasional natural obstructions do not destroy the navigability of a river ... . Following naturally from this proposition is that in order to circumvent these occasional obstacles, the right to navigate carries with it the incidental privilege to make use, when absolutely necessary, of the bed and banks, including the right to portage on riparian lands ... .
Adirondack League Club Inc. v. Sierra Club, 684 N.Y.S.2d 168, 173 (Ct.App. 1998).

Texts Summarizing the Common Law

Legal texts summarizing the common law typically contain statements of legal principles supporting portaging. For example, the American Law Institute has recognized a limited privilege by a navigator to enter the otherwise private land next to a river:
“... The privilege of navigation carries with it the ancillary privilege to enter on riparian land to the extent that this is necessary for the accomplishment of the purpose of the principal privilege.”
Restatement (Second) of Torts § 193, Comment d (1965).
The portage right is a specific application of this privilege. Of course, a navigator’s right does not extend to a general sort of wandering or sightseeing upon a pasture near the river, because such wandering or sightseeing on private land is not necessary to carry out the navigation right.

A Riparian or Dam Builder's Permit Does Not Preclude Navigation

A Texas case has explained that the state’s grant of permission to dam a navigable stream does not include permission to preclude navigation:
It gave no title to the water, but only the right to divert and use so much of the water appropriated as might be necessarily required when beneficially used for the purpose for which it was appropriated. ... It gave no title to the fish in the water of the lake, no exclusive right to take the fish from the lake, and no right to interfere with the public in their use of the river and its water for navigation, fishing, and other lawful purposes further than interference necessarily result[ing] from the construction and maintenance of the dams and lakes in such manner as reasonably to accomplish the purpose of the appropriation.
Diversion Lake Club v. Heath, 126 Tex. 129, 86 S.W.2d 441, 446 (1935).
As to private impairment of navigation, a recent Texas case stated:
The title of owners of beds of streams by the State or landowners does not determine property rights in the water. Assuming that the property owners here involved owned the stream beds, this does not deprive the State from reasonable regulations and control of navigable streams. A property owner, including holders of riparian rights, cannot unreasonably impair the public’s rights of navigation and access to and enjoyment of a navigable water course.
Adjudication of Upper Guadalupe Segment of Guadalupe River Basin, 625 S.W.2d 353, 362 (Tex.Civ.App. San Antonio 1981), aff’d, 642 S.W.2d 438 (1982).

The Criminal Law

There seems to be no reported case in Texas involving a prosecution for trespass for a navigator’s portage. The “necessity defense” could be asserted by a navigator charged with criminal trespass during a portage. Texas Penal Code § 9.22 (see below) allows conduct which would otherwise be a crime to be considered justified if three conditions are met. Note that this defense requires a weighing of harms. Assuming there is no special harm to the private property, going onto private land for a reasonable portage would fall within this defense.
Penal Code § 9.22. Necessity.
Conduct is justified if:
(1) the actor reasonably believes the conduct is immediately necessary to avoid imminent harm;
(2) the desirability and urgency of avoiding the harm clearly outweigh, according to ordinary standards of reasonableness, the harm sought to be prevented by the law prescribing the conduct; and
(3) a legislative purpose to exclude the justification claimed for the conduct does not otherwise plainly appear.
Penal Code § 1.07(a)(25):
“Harm” means anything reasonably regarded as loss, disadvantage, or injury, including harm to another person in whose welfare the person affected is interested.

Consideration of the Navigation Right as an Easement

In various jurisdictions the navigation right has sometimes been compared to or referred to as an easement. A Texas legal text has stated the following about easements in general:
Every easement carries with it the right to do such things as are reasonably necessary for the full enjoyment of the easement, and the extent to which incidental rights may be exercised depends on the object and purpose of the grant and whether such rights are limited by the terms of the grant. However, the exercise of the right must be such as will not injuriously increase the burden on the servient owner, and there may be no use that will interfere with the servient owner’s free enjoyment of that part of the property not affected by the easement. The owner of an easement and the possessor of the servient estate are to exercise their respective rights and privileges in a spirit of mutual accommodation.
31A Tex.Jur.3d Easements & Licenses in Real Property § 64 (1994).

Common Law as the Perfection of Reason

It has been asserted that the common law is “the perfection of reason.” See Welder v. State, 196 S.W. 868, 870 (Tex.Civ.App. Austin 1917, writ ref’d). In light of the fundamental right of public navigation, it is not reasonable to expect a navigator to risk life, limb, or property by attempting to navigate through a hazard. Past and present Texans have used their common sense to scout and if necessary portage obstructions along Texas rivers.