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The CHAIRMAN. I do not know that I understand you. Do you think that some of the Texas people are in good faith? Perhaps I did not understand this part of your letter on page 12 :
"Also it is apparent that those who drilled wells under the licenses issued by the State of Texas were fully aware of the claims of the State of Oklahome, of the North Shore riparian owners, and of the United States, and so in the case of all parties, whatever their alleged source of title as opposed to the United States, it is evident that none of them can be said to have expended money in the development of these lands in good faith. They took all the risks of the title, with knowledge of all the opposing claims.”
Mr. DYAR. Now, if you please, there we speak of the licenses; those Texas licenses only covered parts of the sand bed, the real river bed. One of them came to a place somewhere here sindicating] and ran way down the river. Those licenses did not cover this flood plain land here (indicating). These lands were covered by patents, and it is the patented lands to which we conceded they had a color of title. But the licenses from Texas, of which we speak there, did not cover the patented lands; they ran up to the middle of the sand bed, and were just like this (indicating). We have drawn them on a map, which I wish I had here.
The CHAIRMAX. Do you know the area of the patented lands?
Mr. DYAR. Well, it is about half, and just about half the proceeds of the ceceivership, I mean, of the total collections of the receivership have come out of this flood-plain land here [indicating) and about half out of the river bed. They are both right here together in a comparatively small compass; 3 miles, I suppose, would cover the whole region that is producing oil.
Mr. RAKER. Then you do not come within the decision of the Supreme Court, and I just want to read this. I am trying to get at this, so that I may think of the matter as it is presented. The court used this language:
“ The decree recognizing and declaring that the boundary between the two States is along the south bank of the river and not along its medial line means that the entire river bed is within the State of Oklahoma and beyond the reach of the laws of the State of Texas, and therefore that the latter State and its grantees and licensees have no proprietary interest in the bed or in the proceeds of oil and gas taken therefrom."
Mr. DYAR. The question is, What is the river bed?
“Of course, when the exact location of the boundary along the south bank is determined, it may develop that the receiver is holding some land on the southerly side of that line or proceeds arising therefrom, and, if so, the State of Texas and its grantees and licensees will be free to claim the same?
The CHAIRMAN. From what are you reading ?
Mr. RAKER. The last decision. That being so plain I was just asking that when he started in he give us some idea as to the equitable features he is trying to present.
Mr. DYAR. I confess I am almost unable to grasp your difficulty. The court has said that the entire river bed is in Oklahoma.
Mr. RAKER. That is the point.
Mr. Dyar. Yes; we believe it entirely clear from the opinion that the court meant to say that all of this yellow area (indicating], which is the real bed of the river, is in Oklahoma. The only question remaining, in our view, is whether the line falls here at the outer line of the flood plain [indicating] or whether it falls here at the bluff line [indicating).
Mr. RAKER. The court further says that the only question remaining and that is the one they are going to determine is where the line is upon the ground.
Mr. DYAR. Yes.
Mr. LARSEN. Is it your statement that the court misinterpreted its own decision-is that right-or that it is ambiguous ?
Mr. DYAR. Well, there is no ambiguity about the south line, but there is a latent ambiguity as to the north line, because the court said, in general terms, that it is the middle of the main channel ; immediately the north shore claimants say, “ We bought when the land on the north shore extended away out to there [indicating the meander line of 1874–75] and we are going to start from there to find the middle of the main channel." That would throw the middle there—farther south [indicating] and would just split in two the productive wells. The Government, on the other hand, thinks that what the court meant was the main channel as it exists to-day, which would throw the medial line up here [indicating] and all the wells would be in the south half.
Mr. VAILE. Do you mean the location of the south bank has been determined ?
"The decree directed a further hearing to determine what constitutes the south bank, where along that bank the boundary is, and the proper mode of locating it on the ground."
Now, they have decided everything else except that one question, where the boundary line is on the ground?
Mr. DYAR. Yes; that is right; but there is a material difference between the claims.
Mr. RAKER. That being the case
Mr. DYAR (interposing). We will know more about this, I feel pretty sure, by this afternoon.
Mr. RAKER. That being the case, pending the final determination of that important and all important question, how can we determine the equities of those people until we know that fact?
Mr. DYAR. You can be gathering the information, and I feel sure that before this committee rises it will have that decision.
The CHAIRMAN. We can legislate for unborn children, and we can apply this legislation to any land hereafter held to be Government land.
Mr. DYAR. Exactly so.
Mr. LARSEN. I wish you would explain what you understand is covered by the term “main channel," the shifting condition of the main channel, and espe. cially with reference to the decision of the Supreme Court of Texas in 1880.
Mr. DYAR. You see the yellow area and white area lying within the bluffs. The yellow area is just a great bed of sand, and that bed of sand is from 11 to 3 feet higher in the middle than it is at the margins. At ordinary times this
sand bed represents the river [indicating], that is, under the general condition of things. It is always changing, but this represents the river when it is between high and low water, and low water means no water at all. For three months this summer there was not a drop of water there.
Mr. LARSEN. You mean the channel not only includes that blue streak but also that yellow or sand streak?
Mr. DYAR. Yes; and we understand the court has already determined. Those blue streaks may be here to-day and there to-morrow [indicating).
Mr. BURTNESS. But those blue streaks do not pretend to locate the water as it is running to-day or at any specific time, because, as I understand, it changes from month to month.
Mr. DYAR. They locate it as it was running at the time the surveys were made. Now, we have another map superimposing upon those streaks of water the positions at subsequent dates, and after intervening floods they are in different places; then we have superimposed a third one and they are in still different places.
Mr. LARSEN. Construing the channel to be the blue and yellow, you would not say the channel is continually shifting—that is, if you construe it as covering both of those areas?
Mr. DYAR. Yes, sir; I would say that for this reason, that those flood plains are continually washing away and building up.
Mr. LARSEN. The yellow part, too?
Mr. DYAR. No; the white part. For instance, in 1875 that was the cut bank of the river (indicating], that black line. That was the meander line of 1875, but to-day it is away back there [indicating].
Mr. LARSEN. Do you mean by that that at that time it was white sand like the other?
Mr. DYAR. This flood plain is not white sand [indicating); this is an area that is from 11 to 10 feet higher than the river bed itself; it has trees on it in places; it has grass in places, while in other places it just has sandy hills, lumpy sand piles that are shifting more or less.
The CHAIRMAN. You mean by a cut bank a bank where the water has cut it away?
Mr. DYAR. Yes; that is a most definite thing right along here [indicating); you can walk right along the edge of this white area and there will be a bank from a foot to a foot and a half high, generally pretty sharp, too; sometimes it will slope so that it will be a little indefinite, but generally there will be a good bank, and then there will come a sand dune piled up there and it will be 10 feet high. Those sand dunes go down when the water is up, and when the current impinges against them they fall in and dissolve.
Mr. VAILE. I notice that in the Senate hearings you have used the, expression “cut banks” a good deal. When you refer to cut banks do you mean those banks separating the overflowed plain from the sand?
Mr. DYAR. Exactly so.
Mr. Dyar. No; we had to invent some sort of expressions, and we mean by the cut bank this bank here [indicating] which borders what we call the flood plain areas, those low, flat, sandy areas partially covered with vegetation. That is a cut bank. It follows right around the edge of that white a rea, and that is what we mean by a cut bank.
Mr. BURTNESS. And you call the outside banks-
Mr. DRIVER. In determining the position of channels there is no significance to be attached to the conduit through which this water passerl out of those low areas as represented by those blue marks?
Mr. Dyar. No, sir.
Mr. DYAR. Yes. Since we have gone so far, I will have to make a further explanation.
The CHAIRMAN. Will you give the committee a definition of fast land. You use that expression, too, do you not?
Mr. Dyar. In our briefs and in our petition for intervention we do use the words ' fast land banks,” and by that we mean the unchanging bluff bank to distingush it from what we say is the shifting bank of these floods plains, the shifting cut banks.
Mr. RAKER. Then within the knowledge of man the water has covered the territory between the bluff banks from side to side?
Mr. DYAR. A good many times. Nearly all the changes, however, occur there through undercutting; an overficw does not make so much of a permanent change but it undercuts and falls in. When there is a flood which does not cover these plains, but which is enough to cover the sand bed, the sand bed being right next to the cut banks where the water impinges against it, it undermines it; it is a sort of quick sand which just slumps down and goes in. It does not make any difference whether the bank is 10 feet high with cottonwoods on it; it just goes in the same as if it were a foot high.
The CHAIRMAN. What marks the south bank? Do the flood waters mark the south bank?
Mr. DYAR. That is a matter of contention. We say the flood waters mark the real south bank. Texas still maintains that this little streak of water on the Oklahoma side is the real channel and that this south limit of it is the south bank right here (indicating], but I think that is an absurdity. I do think the court has really decided that question, but Texas still goes over there and says the water usually flows over there and they stick to it.
Mr. VAILE. In other words, as Senator Gore suggests to me, it looks as though Texas claims that the south bank of the river is the north bank of the stream?
Mr. DYAR. Exactly so. Now, I want to tell you this: That when we drew the petiti or motion for the appointment of the receiver, knowing this river as we thcught we did, we described the north line of the receivership as the medial line of this sand bed and asked the court to appoint a receiver and take the land from the medial line, as we claimed it to be, to the south bluff line ; but the court at that time did not know anything about this river and it followed old precedents, and instead of taking our north line, as we suggested, they modified our language and said, “the meclial line of the main channel of water as it flows through the sand bed.” At that particular time the larger channel water flowed through the sand bed close along the Oklahoma side here [indicating), so that the receiver actually took charge, and still has charge, clear up to there [indicating]. because the court, not then knowing much about this river, naturally thought we were going a good ways in following the water as it actually ran; and that explains a good many things in this case.
The CHAIRMAN. Did they adopt the line of vegetation theory in determining the river banks?
Mr. DYAR. Well, the line of vegetation is this line (indicating], what we call the cut bank, and when the surveyors of the Geological Survey, in 1875, were
surveying the Indian Territory north of this river they followed the regular rules of the Land Office manual, and they adopted as the bank of the river the line of vegetation. Now, there was vegetation on these white areas, so that they necessarily ran the line where the north cut bank was in 1874 and 1875, when those surveys were made, and here is their line (indicating] ; it comes right down there and there along what is now approximately the middle of the sand bed [indicating), and that was the line of vegetation there [indicating), but now it is all gone; there is not a speck of vegetation on it, except such little as may come up; it is just like the rest of the sand bed, a little higher in the middle, and the water, as you can see, is running right over it there sindicating), and when it is up to 3 feet it will cover it all.
There are sandy areas that have no vegetation in general, although there is more or less dirt on them. Now, they cut away at the upper side, generally, and build out at the lower; they build great sand bars, usually with a stream behind them; they gradually build up and stuff begins to grow on them as the channel clogs. The channel clogs and then that begins to cover up with vegetation, and after 5, 10, 15, or 20 years you have cottonwoods on there, and in 30 years you have cottonwoods 2 feet through. But about the time the cottonwoods get fully grown, the river comes along and cuts them all away again, and those flood plains are just carried down the river. They build out here and there [indicating]; this one used to be away out there [indicating), according to Texas, which I think is correct. This has all built out since 1866 [indicating), and according to that this river came right across and struck the bank right here (indicating), and this is all new-made land since then.
Mr. RAKER. Is it not a fact that the Supreme Court in that decision has determined that all the land lying north of the south bank is outside the State of Texas?
Mr. DYAR. Yes; but it has not told us where it is.
Mr. RAKER. I know. And that therefore all the parties who claim from the State of Texas, when the boundry is finally located, have no claim?
Mr. DYAR. Can have no claim.
Mr. RAKER. They were considering, first, the claims of Oklahoma, its licensees and grantees; second, the claims of the United States; third, those of Indian allottees and others using it, based on the ownership of riparian lands on the northerly side of the river; and, fourth, those based on placer mining locations made in the river bed?
Mr. DYAR. Yes; that is right. The court did not consider the claims of Texas at all because it went on the theory that wherever the boundary o! Texas should finally be located that fixed the boundary of Texas ownership; that nobody could go north of it and that no Texan would have any claim to it.
Mr. BURTNESS. Then, if I understand you correctly, when that boundary is fixed you feel that those who are south of that boundary line and who, hold patents from the State of Texas, would, under the law, be presumed to have acted in good faith and would have their rights there regardless of the legal title?
Mr. DYAR. Yes; that is, as far as they are on the flood plain lands. Now, we never expected to try to collect any money from the Texas patentee beyond a royalty interest, and it was at the suggestion of the Government that he