Untitled Texas Attorney General Opinion ( 1953 )

Hon. W. G. Woods, Jr. Opinion No. S-107
County Attorney
Liberty County Re: Fishing rfghts of
Liberty, Texas the public in and
along navigable rivers
'bordered by Mexican
Dear Mr. Woods: land grants.
Your request for an opinioi of this office con-
tains the following specific questions:
"1: What Is the boundary line between
state and rlparlan ownership along the Trinity
River where it is navlgable In fact as well as
navigable in flaw as defined in R.C.S. Art. 5302,
and the land on each side of said river was
granted during 1835 by the Supreme Government
of Coahuila and Texas, such grants extending
their boundaries to the margin of said river?
"2; What right, if any, does the publi,c
have to use the Trinity River and its bed and
banks an-and bars in the~area described in
the facts set out, to wit, where the river iies
between two Mexican grants made In 1835?
“3 : According to the facts above men-
tioned, are those persons who reached the
Trinity River by way of the dedicated right
of way on either side of said river end then
walk up and down the banks, the sand bars and
in the bed of said river staying within the
cut hanks and vegetation lines, trespassing
within the purview of T.P.C. 13771
-
‘14: Can the ripar'lan owner legally ex-
tend his fences down into the river water,
place posted signs on said fences, and pre-
vent the public crossing such fences, or other-
wise obstruct their travel up z:nd down the hed
and bank of said river?
. *
Eon. W. G. Woods, Jr., page 2 (S-107)
"5s Can the riparlan who owns land on the
north and south side of the dedicated right of
way of State Highway T-105 on the east side of
the Trinity River legally tie his fences ofi the
right-of-way lint across such right-of-way line
into or to abut the state bridge which crosses
the river In such a manner as to obstruct the
right-of-way down to the river, place slgne
reading ‘Posted, Private Property, 1po Hunting -
Fishing,‘. and prevent the public from using
the right of way?”
The extent and effect of land grants made in
Texas nrlor to the adontion of the common law must be
determined-according tb the rules of clvll law. Miller
v. Leteerich, 121 Tex. 248, 49 S.W.2d 404 (1932); State
--
V. Grubstake Inr. Ass’n, 117 Tex. 53 297 S.W.2d 202
Tlg27). Allen v. West Lumber Co., 244 S.W. 499 (Tex.
Comm.A;p.l922).
The line of demarcation betweea the stream bed
and grants bordering the stream was establfahed by the
Supreme Court in Mot1 v. Boyd, 116 Tex. 82, 286 S.W. 458
(19.23)) where the Court “adopted the same method for de-
fining and marking the line between public and private
ownership along the banks of a stream navigable accord-
ing to the definition of the statute ,$rticle 53Og as
was used by the Supreme Court of the United States In de-
fining and marking the boundary line between Texas and
Oklahoma. ” Dlverslongy Club v. Heath, 126 Tex. 129,
86 S.W.2d 441, 44 1 1 In Oklahoma v. Tea,. 260
U.S. 606,.631 (l& , the ’Court held
II. . . that the bank intended by the treaty
provision is the water-washed aad relatively
permanent elevation or acclivity at the outer
line o? the river bed which separates the bed
from the adjacent upland, whether valley or
hill, and serves to confine the waters within
the bed and to preserve the course of the
river, and that the boundary intended Is on
and along the bank at the average or mean level
attained by the waters In the periods when
they reach and wash the bank without overflow-,
ing It. When we speak of the bed we Include
all of the area which is kept practically bare
of vegetation by the wash of the waters of the
Hou. W. G. Woods, Jr., page 3 (S-107)
river from year to year la their onward
course, although parts of it are left dry
for moathe at a time; aad we exclude the
lateral valleys which have the characterls-
tics of relatively fast land and usually--
are covered by upland grasses and vegeta-
tion, although temporarily overflowed in
exceptional Instances when the river Is at
flood.”
Ia Mot1 v. Boyd, su ra, the above d~fiUt;lba
was said to be “consistent -5-i the Mexican OF Spanish
wit
law oa the subject .” (286 S.W. at 469.) __
The Texas Supreme Court In DivdrBPoii L%kh~Clbb
v. Heath, su ra agala quoted approvingly from Oklahoma
-
V. Texaa as-9 fo lows:
“The line was still more definitely
aad practically deacrlbed in the report
of the Commlsalonera, which was approved
by the court, in the following language.
“The boundary line is a gradient of the
flowing water in the river. It is located
midway between the lower level of the flow-
ing water that just reaches the cut bank
and the higher level of it that just does
not overtop the cut bank. I”
Other cases recognizing and applying thla
State’v. Bradford, 121 Tex. 515, 50 S.W.2d
Maufrala v. State, 142 Tex. 559, 180
In &mtsii&rto’ your sacond questlbh;-the Supreme
Court la Diversion Lake Club v. Heath, supra, held that,
“Because of the state’s ownership of
the beds of statutory navigable streama and
of their banks up to the line aa above de-
fined bradtent l.in$~, the public may use
their beds and banks up to such line for
fishing. Beyond that line, unless the rule
of civil law la applied, they have no right
to go without the conseat of the riparlan
laadowaer . ” (86 S.W.2d at 447.)
. -
Hon. W. 0. Woods, Jr., page 4 (S-107)
The court stated that It was not necessary la
that case to decide, aad the court did not decide, ‘whether
the rlghts of the public to use the banks of streams In
this state where the;r are bordered by grants made under
Spata$ah.or Mexican sovereignty are in say respect dlffereat
hts of the public herein de,termlned.” (86 S.
However, the court recognized the civil law
to be as follows:
“With reference to the civil law, Fara-
ham says: ‘By the civil law the public uai”
of the banks of a river was part of the law-
of aatlons, just as that of the river Itself .I
Farnham’s Water aad Water Rights, vol. 1, p.
662. One of the lawa of the Partidas-prov’idis:
‘And although the banks of rivers are, so far
as their ownership Is concerned, the property
of those whose lands include them, nevertheless,
every man has a rlght to use them, by mooring
his vessels to the trees, by repairing his
ships and his sails upon them, ‘amd by larldlng
hle merchandise there; and fishermen have. the
rl.ght to deposit their flab and sell them,
aad dry their nets there, and to use sald banks
for every other purpose like those which ap-
pertain to the calling and the trade by which.
they live.’ Las Slete Partldati (C .C.B. 19 l),
part III, title XXVIII, law VI, p. 821.” 86
S.W.2d at 447.)
In State v. Grubstake IPV. Asa’n, 117 T&x: 53; 297
s.w.2d 202, 203 (1927) the court said- that- the 'owner 'or rl-
parian laad granted by*Coahulla aad Texas in 1835 ‘acquired
title to the river bank, yet such title was burdermed with
certain servitudes .” The “servitudes” are those set forth
In the portion of the Partldas quoted In Diversion Lake Club
v. Heath, B.
It is also made clear In Diversion Lake Club v.
h
Heath, supra, that the persona who reac
%ii& set forth 1~ your third question are not trespassers
under Article 1377 of the Penal Code. In that case the
fisherman “entered the waters of Diversion Lake and. fished
in It by placing their boats Into the water from the low’
bridge on which the public road crosses the river and lake
near the upper end of the lake.’ (86 S.W.2d at 442.) The
court held that under such circumstances they were not tres-
passers.
Hon. W. G. Woods, Jr., page 5 (S-107)
The fence described la your iifth queetioa is
a trespass upon the highway right of way and Is in the.
exact position relative to the bridge aa the fence con-
demned in Cornellson v. State, 49 S.W. 384 (Tex.Crim.App.
1899). That this fence and the fences described in your
fdurth question cannot be 80 maintained as to prevent
the public from gaining access to the river by means of
the highway right of way or to prevent them from going
up and down the river in boats and fishing in its waters
ie likewise settled by Diversion Lake Club v. Heath, supra.
SUMMARY
The.publlc may use the bed and bank8 of
the Trinity River up to the gradient boundary
for fishing and may make certain uses of its
banks above that line if they are held under
civil-law grants. The rlparlaa owners caeaot
prevent the public from gaining access to the
river by means of a highway right of way by
erection of a fence thereon and cannot prevent
the public from going up and down the river
in boats and fiahlng In Its waters by the
erection of fences across the river.
APPROVED: Youra very truly,
Burnell Waldrep JaNBEN SHEPPERD
Reviewer Attorney General of Texas
Wlllls E. Gre&am
Reviewer
Robert S. Trottl Mert Staraes
First Aeeistaat
Johr Ben Shepperd
Attorney General