Untitled Texas Attorney General Opinion ( 1973 )

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TEXE LITE-ORNEY GENERAL
OF TEXAS
AUS-~IN. -lkXAS 78711
July 24, 1973
Honorable Ogden Bass Opinion No. H- 68
District Attorney .
Brazoria County Re: Whether it is a trepass
Angleton, Texas 77515 for a boat, floating in
tidal water, to occupy
a position over private,
Dear Mr. Bass: submerged property.
You have requested our opinion as to whether or not occupants of
a boat are trepassing on private property if, when the boat is floating
in tidal water it occupies a position over and above private property
which is submerged by the tidal water.
You have furnished us with a sketch of the proposed project from
which we gather that the intercoastal waterway is generally to the north-
west of the property in question. At some time in the past a drainage
cut has been made along the southwest boundary of the property in ques-
tion. As this drainage cut approaches the intercoastal waterway it widens
so that, while it is 20 feet in width at the southeast end of the property,
at or near the proposed boat ramp, the cut is 47 feet wide and is 62 feet
wide as it enters the intercoastal waterway.
Apparently at low tide the entire 47 foot width and/or the 62 foot
width are above water, but with the rise of the tide it becomes submerged.
Of the 47 foot width and the 62 foot width a large portions is owned by pri-
vate owners.
You have not furnished us any facts concerning the basis under which
the surface of these owners is submerged. We are not asked and do not
answer what their rights are in their property which is under the tidal water
or what uses they may make of it.
The ramp which is to be constructed is entirely on state highway
department property and does not project onto or over the private property.
p. 293
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Honorable Ogden Bass, page 2 (H-68)
However, boats will be able to use the ramp only when the private
property is submerged.
Section 5.021(a) of the Water Code, Vernon’s Texas Civil Statutes,
provides:
“The water of the ordinary flow, underflow,
and tides of every flowing river, natural stream,
and lake, and of every bay or arm of the Gulf of
Mexico, and the storm water, flood water, and
rain water of every river, natural stream, canyon,
ravine, depression, and watershed in the state is
the property of the state. ”
It is our opinion, therefore, that the water covering the privately
owned but submerged land is state water and that the public has a right
to use the water for navigation, fishing and other lawful purposes. Diver-
sion Lake Club v. Heath, 86 S.W.2d 441 (Tex. 1935); State v. Lain, 349
S.W.2d 579 (Tex. 1961). And see Attorney General Opinion M-1210 (1972).
As these authorities hold, however, the right to enjoy the water does
not give the public the right to trespass on the property itself to gain access
to the water.
However, in answer to your question, we would state that when a
boat is floating in tidal water, even though it occupies a position over and
above private property which is submerged by said tidal water, the occu-
pants of the boat are not~trepassing on the private property. This is par-
ticularly true if the flooding results from voluntary acts of its owner.
SUMMARY
Where private property is submerged as
a result of the construction of a lake, a water-
way, etc., in the absence of some special pro-
vision affecting title to the private property it
remains such and is subject tothe rules against
trespass. Persons using tidal waters above such
private property, however, do not commit a
trespass even though above the submerged prop-
p. 294
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Honorable Ogden Bass, page 3 (H-68)
erty, so long as they do not actually use private
property as means of access to the water.
Yours very truly,
APPROVED:
DAVID M. KENDALL, Chairman
Opinion Committee
p. 295