meters an hour. two or three days. This was the extreme rate and only lasted for There are many places on the Rio Grande, both in the El Paso valley and below there, where the indications are that erosion has taken place as rapidly as at the three places cited. These three have been considered both because they are near El Paso and because a map is at hand which shows graphically and accurately the changes. That these changes were accelerated by the cutoff is granted, but attention is called to the fact that nearly half of the increase in the velocity of the current was caused by the San Lorenzo banco natural avulsive change and also to the fact that similar changes, due to natural causes, frequently occur and produce results similar to these. The fact that the cutoff was artificially made does not place the resulting changes in a special class. They are the same as if the river had, without assistance, made the cutoff itself. A comparison of the mean movements 1899-1907, with those of the Chamizal is as follows: 1852 to 1888-36 years 840 meters—23 meters per year. 1899 66 Or, the last three movements averaged three times that of the Chamizal. Comparing the five flood years 1864-8 with the years 1903-1907 (1903-5 for Alfalfa): 1864-1868-5 years 420 meters-85 meters. Or, the rate for flood years of the last three movements was one and a half times as rapid as was that of the Chamizal. There has, so far as the writer is aware, been no thought by any one of considering these recent changes as other than erosive, although they were much faster than any claimed for the Chamizal. They were all "slow and gradual" compared to the avulsive change, for example, which formed the San Lorenzo banco when the river moved its channel over a mile and abandoned some three miles of it in a few hours. Attention should be called to the fact that, at Woodlawn, San Lorenzo and Alfalfa, land above ordinary overflow was eroded away, and that, at San Lorenzo, the ground was very old, no records existing which might indicate that the bed of the river ever occupied the area attacked. The ground at Woodlawn and at Alfalfa was also old but the soil was not so deep as it was at San Lorenzo. At the last named place, the conditions were apparently the same as they were at Chamizal. It was old ground with houses, cultivated fields and trees. 5. Avulsive Change. There are no signs that an avulsive change ever occurred in front of El Paso. "El Chamizal” was a level tract of land, above overflow, with a deep soil, inhabited, cultivated and covered with houses orchards and vineyards. That it was cultivated is shown on the Salazar map (Map No. 7)a and that the sand bar and bosque on the recently formed land in front of El Paso was not cultivated or even covered with large trees is also shown. If an avulsive change had occurred, it could only have been by the eating through of a loop, because "El Chamizal" was above overflow. There is no physical or oral evidence that a loop ever existed here. Had an avulsive change occurred, the houses, vineyards and trees, with the deep soil, would be found north of the river. Not a tree house or vine was left. In their place was a sand bar which gradually built up with alluvial deposit from floods and then accumulated a thin layer of soil. All this is admirably shown on the cross-section on Map No. 5. This map alone, without other testimony, would prove conclusively that no avulsive change occurred. Moreover if an avulsive change had occurred, the channel would have been shortened. A glance at the map shows that no change which shortened the river could have occurred. 6. Conclusion. There can be but one conclusion to the foregoing discussion and that is. The river moved by erosion into the Chamizal tract and not by avulsion. BROWNSVILLE Texas, Mch. 30-1911. W. W. FOLLETT. a [The reference is to U. S. Case, portfolio map No. 7.-Agent's note.] OPINION OF THE COURT OF CIVIL APPEALS OF THE STATE OF TEXAS IN THE CASE OF DENNY ET AL vs. COTTON ET AL, RENDERED APRIL 26, 1893.a DENNY ET AL. V. COTTON ET AL. Same v. Lee. [Court of Civil Appeals of Texas, April 26, 1893.] Appeal from district court, El Paso county; T. A. Falvey, Judge. Two actions, one by Frank B. Cotton and others against W. C. Denny, and the other by the same plaintiffs against H. G. Lee. There was judgment for plaintiffs, and defendants appeal. Affirmed. The other facts fully appear in the following statement by Fisher, C. J.: This was a consent consolidation of two actions of trespass to try title, brought by appellees July 15, 1887, in the district court of El Paso county, respectively, against appellant Denny and appellant Lee. February 20, 1890, appellees filed amended original petitions, in which, as against said appellants, respectively, they asserted title to the land in controversy, alleging same to be all those parts of the pre-emption surveys Nos. 109 and 111 in conflict with Burdett survey No. 2, claimed under title by appellees. February 24, 1890, each appellant, in the suit against himself, filed an amended original answer, containing, besides a general demurrer and plea of not guilty, a plea in the nature of a plea in reconvention, asserting title, as against appellees, each to the land included within the lines of the pre-emption survey claimed by him. Each appellant had previously-August 18, 1887-filed in the suit against him an original answer, consisting of a general demurrer, and a plea of the general issue. February 24, 1890, appellees filed in each case a supplemental petition, interposing, as against appellants' respective assertions of title, pleas of not guilty, and five years' limitation. Same day, February 24, 1890, after due consolidation of the two causes, they were tried as one cause by the court, without the intervention of a jury, and judgment rendered in appellees' favor for the land sued for. We find the following facts: (1) Patent from the state of Texas to Joseph Magoffin, assignee of N. W. Burdett, dated February a [This case will be found reported in the Southwestern Reporter, Vol. 22, St. Paul, 1893, pages 122 to 126.-Agent's note.] 20, 1858, to the following described land; being the Burdett survey No. 2-320 acres-in El Paso county, Tex., on the east bank of the Rio Grande river, about 21⁄2 miles below El Paso, known as "Survey No. 2:" Beginning at a stake, the southwest corner of survey No. 1; thence north 2,368 varas to rock mound; thence west 672 varas to rock mound; thence south 3,000 varas to a stake on the bank of the Rio Grande; thence down said river, with its meanders, to the place of beginning. (2) Appellees hold and own the foregoing described land by regular chain of title from Joseph Magoffin and wife down to themselves. (3) Both appellants claim the land in controversy as pre-emptors of the land in 1887, and as such pre-emptors they have complied with the terms of the then existing laws that permitted citizens of Texas to acquire public lands as pre-emptors, and have title to land, provided it was vacant at that time. (4) At the time the Burdett survey No. 2 was located, in 1858, the banks and channel of the Rio Grande, and low-water mark thereof, were several hundred varas north of where the bank and channel and lowwater mark of the river were in 1887, when the pre-emption claims of appellants were filed. That the bank and channel and low-water mark of the river have since 1858, where the Burdett survey No. 2 originally abutted on it, receded from the north, and gone south several hundred varas. That this was occasioned by annual rises in the river from 1858 to the time of filing the pre-emption claims by appellants, and by the peculiar formation and shape of the banks at that point. The Burdett survey was situated on the north bank of the river, and called for a stake on the bank of the river, and to run down the river with its meanders. Land extending about the width, or more, of the Burdett survey No. 2, and about several hundred varas in distance, has since. 1858, up to 1887; formed between the bank of the river, as it existed in 1858, to where it existed when the pre-emption claims were located, in 1887. It is this land upon which the appellants have located their pre-emption claims, and is the land in controversy. The shifting of the bank and channel of the river, and the formation of that land, was the result of the annual rises in the river during that period. That the river generally remained up at a high-water stage two or three months in each year. That after each rise the changes made in the channel and banks of the river could be seen and discerned, but they could not be perceived while the progress of changing was going on. That the change in the banks and channel of the river, and the low-water mark existing when the pre-emption claims were located, or different from that existing when the Burdett survey was located, was not sudden, but was the result of the annual rises in the river during said period from 1858 to 1887. (5) That the said land so formed on the north side of the river, and the land in controversy, is a part of the Burdett survey No. 2, and is the result of accretion and alluvion. (6) The land upon which the pre-emption claims of appellants were located, and being the same land in controversy, was not vacant public domain, subject to location, at that time, but was a part of the Burdett survey No. 2, and the superior title thereto is in the appellees. Carleton & Ruggles, for appellants. Davis, Beall & Kemp and Peyton F. Edwards, for appellees. Fisher, C. J., (after stating the facts.) The appellants contend that the call in the Burdett survey for the stake in the bank of the Rio Grande river as it existed in 1858, the time when the survey was made, should control, and that it should not be extended in course and distance so as to reach the bank of the river as subsequently formed, and that the land formed between the old river, as it existed in 1858, and the new channel, was vacant land, and subject to the location of the pre-emption claims of appellants. Upon the other hand, appellees contend that the facts of this case call for an application of the law of accretion and alluvion; that the call of the Burdett survey for the bank of the river, with its meanders, will carry it to the middle of the channel or low-water mark of the river, as newly formed, and that the lands so formed since the location of the Burdett survey are the accretions thereto caused by the deposit of alluvion thereon, or the dereliction resulting from the gradual recession of the water to the new channel, and the gradual changing of the bed of the river. This, in effect, presents the diverse views of the parties to this controversy. The main question we are called upon to decide is: Are the change in the bed of the river, and the increase and addition to the land, the result of alluvion or avulsion? The appellees contend that it is the former, and appellants, the latter. The accretion by alluvion belongs to the owner of the shore whose lands front on the stream, and to which the addition is made; also, such is the case where the accretion is the result of a dereliction occasioned by the gradual recession of the water from the land, and the making of a new channel. This right rests upon the consideration that, while the riparian owner is liable to lose soil by the action of the |