D. W. MILLER
Private Investigator
10310 W. Dallas St.
Canton, TX. 75103
TO: Udo H. Birnbaum
Rt 1 Box Box 295
Eustace, Texas 75124
RE: Jones vs Birnbaum; Cause No. 95-63
INVESTIGATION REPORT
Investigation Requested
Inspect and make recommendations regarding Steve's Creek that flows in an easterly direction across property belonging to William B. Jones and then continues across property owned by Udo Birnbaum. Investigation to be focused on any obstructions on Birnbaum's property, including man made or natural that would alter the natural condition of said spring fed creek, so as to change the natural course and flow of water, causing said water to overflow into and upon Jones, property.
Investigation
On Friday, September 15, 1995, I contacted the USDA Stabilization and Conservation Service, on Hw. 19 N., Canton, Texas, wherein I spoke to Christi Hurley, Soil Conservationist. Records of this agency showed that in January, 1983, Udo Birnbaum requested and received a Soil Conservation Plan, including recommendations, concerning his property located at Rt 1 Box 295, Eustace, Van Zandt County, Texas.
Said Conservation Plan included Pasture Planting, Pasture Management, Critical Area Planting, Hay Land Management and Wildlife Management. The Wildlife Management segment of the study was confined to the area in question, being that portion of land that Steve's Creek traverses, being approximately 50 acres along the south border of Birnbaum's property. The Wildlife Study recommends that Mr. Birnbaum leave all trees and brush on the creek area to provide escape and nesting area for wildlife.
Further check of the records of the Soil Conservation Service reflect that William B. Jones has never requested any study or plan for his property from this agency.
On Wednesday, September 20,1995, 1 proceeded to the area in question to interview neighbors and property owners in the area and to make a brief inspection of the property. Neighbors and property owners in the area indicate that for many years prior to the year 1994 the spring fed creek, known as Steve's Creek, flowed through Jones and Birnbaum's property in a natural course, during all stages of its water level.
On Thursday, September 21,1995, 1 returned to the area and upon a physical examination of the creek it was observed and it appeared that within the past year Mr. Jones had done extensive work with a bulldozer on the creek area on his property and into and upon Mr. Birnbaum's property a distance of approximately 15 feet. This altered the natural and normal flow of the creek. Mr. Jones removed all trees and other vegetation from the creek and it's banks, causing erosion and the water to flow much faster than before the excavation. It appears when this excessive flow of water reaches Mr. Birnbaum's property it is slowed to its natural flow by the natural erosion preventatives left by Mr. Birnbaum, as suggested by the Soil Conservation Service.
A physical examination of the creek from the west side of Birnbaum's property to the east side (wherein photographs were taken at different intervals) no man made restrictions, such as a dam, was found. No beaver dams were found. The only restrictions found in the creek on Birnbaum's property were natural vegetation restrictions or sand, driftwood, and debris that had washed into the creek on Birnbaum's property from Jones' property after Jones excavated the creek on his property. None of the restrictions observed were to the extent that they would stop the natural flow of water. However, Mr. Jones has excavated the creek on his property causing an unnatural excessive flow of water to enter into and upon Birnbaum's property.
My investigation, including physical examination of the creek in question, revealed that Mr. Birnbaum not only obtained expert and professional advise about the management of his land, but followed the plan provided by the Soil Conservation Service.
Conclusion
Mr. Jones undertook to claim land from nature, by excavating the creek on his property, without acquiring professional advice or guidance, thereby creating an unnatural situation in the creek flowing across his property and into and upon Mr. Birnbaum's property. It is obvious to this investigator that Mr. Jones, actions has created rapid erosion in the area of the creek on his property and has caused sand, driftwood, and debris to be washed down the creek into and upon Mr. Birnbaum's property.
RECOMMENDATION
Mr. Jones and Mr. Birnbaum should request a study and evaluation from the Soil Conservation Service and the Natural Water Resource Service of the property and creek in question and abide by their recommendations.
Respectful submitted,
Doug Pool
Private Investigator
State License # A-07603