Untitled Texas Attorney General Opinion ( 1971 )

September 15, 1971
Honorable James U. Cross Opinion No. M-953
Executive Director
Parks and Wildlife Department Re: Several questions
Austin, Texas 78701 relating to the
Canadian River bed
and regulation of
wildlife thereon by
the Parks and Wildlife
Dear Mr. Cross: Department.
Recently you have requested an opinion of the Attorney
General regarding the ownership of the Canadian.River bed and
the management of wildlife resources thereon. You ask specif-
ically the following six (6) questions:
"1. What constitutes state property in river
beds?
"2. Does the cut bank as established by the
original course of the river forever sus-
tain, or does the current gradient bank
establish, the boundary between private '
and state ownership?
"3. What effect does the construction of dams
or other stream bed alterations have on
the demarcation line between state and .
private property?
"4. Assuming that a definite property line be-
tween state and private lands can be
established, would the Parks and Wildlife
Department have the authority within the
statutes to declare a moratorium on the
taking of any specie from such land?
Lacking such authority, would the Parks
and Wildlife Department be able to declare
such land as a ,game refuge, again assuming
that the line of demarcation could be
definitely established?
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Honorable James U. Cross, page 2 (M-953)
"5 . IS the Texas Parks and Wildlife Commis-
sion authorized to adopt regulations enforc-
ing hunter safety on state-owned land,
and could those regulations be so broad as
to prohibit hunting altogether within that
context?
"6 . Does the Parks and Wildlife Department have
the authority to conduct controlled hunts
on state-owned river beds and/or railroad
rights-of-way as is presently done on state-
owned wildlife management areas with per-
mits issued on a drawing basis?"
We direct our opinion to the Canadian River and lands
riparian thereto, all of which were conveyed by the sovereign
after the adoption of the common law in Texas.
I.
We consider first your question No. 1: "What constitutes
state property in river beds?"
In general, the waters, bed, subsurface, minerals
and wild aquatic life in all streams navigable in fact within the
State of Texas and the waters, bed, subsurface, minerals and
wild aquatic life of all river beds in the State of Texas
which are at least thirty feet in average width from their
mouth up are owned by the State of Texas, and the mineral
estate therein is dedicated to the Public Free School Fund.
Mot1 vs. Boyd, 116 Tex. 82, 286 S.W. 458 (1926); Maufrais vs.
State, 142 Tex. 559, 180 S.W.211 144 (1944); State of Texas vs.
Bradford, 121 Tex. 515, 50 S.W.Zd 1005 (1932); Diversion Lake
Club vs. Heath, 126 Tex. 129, 86 S.W.2d 441 (1935); Article
3302, V.C.S.; Article 542lc-3, V.C.S.
There are certain exceptions to this general rule
where surveys cross navigable streams and where the surveys
do not contain the complement of upland acres called for in
their patents or field notes. Under such circumstances, the
acreage deficiency to the survey is made up from the river bed
under authority of Article 5414a, Vernon's Civil Statutes,
State of Texas vs. Bradford, supra.
II.
Your second question asks: "Does the cut bank as
established by the original course of the river forever sustain,
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Honorable James U. Cross, Page 3 (M-953)
or does the current gradient bank establish, the boundary be-
tween private and state ownership?"
Rivers inately meander. This meandering is caused by
erosion of one bank of the river with accretion resulting to
the opposite bank of the river. The State's ownership of the
river bed moves with the river as the loss by erosion from
one bank and gain by accretion to an opposite bank of the
river changesthe course and breadth of the river bed. Manry
vs. Robison, 122 Tex. 213, 56 S.W.2d 438 (1932); Hancock vs.
Moore, 135 Tex. 619, 146 S.W.Zd 369 (1941). .
In the event of an avulsive change of course of the
river, the new bed is then owned by the State of Texas and
the abandoned bed becomes part of the riparian surveys.
Manry vs. Robison, supra; Maufrais vs. State of Texas, supra.
III.
Your third question is: "What effect does the construc-
tion of dams or other stream bed alterations have on the de-
marcation line between state and private property?" Our answer
to this question is that such alterations have no effect on such'~
demarcation line.
The fact that man has altered the course and flow of ;
the navigable stream by a dam does not alter the ownership
of the former river bed, as the bed existed before the altera-
tion. Ray vs. State, 153 S.W.2d 660 (Tex.Civ.App. 1942, error
ref. w.o.m.1; City and County of Dallas Levy No. 1 District
vs. Carroll, 263 S.W.Zd 307, (Tex.Civ.App. 1953, error ref.,
n.r.e.); Wilemon vs. City and County of Dallas Levy No. 1
District, 264 S.W.Zd 543 (Tex.Civ.App. 1953, error ref., n.r.e.1.
IV.
We now consider your fourth question: "Assuming that
a~definite property line between state and private lands can
be established, would the Parks and Wildlife Department have
the authority within the statutes to declare a moratorium on the
taking of any specie from such land? Lacking such authority,
would the Parks and Wildlife Department be able to declare
such land as a game refuge, again assuming that the line of
demarcation could be definitely established?"
The Parks and Wildlife Department has only such
authority as is granted to it by statute or is reasonably necessary
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Honorable James U. Cross, page 4 (M-953)
to effectuate the statutory grant of authority specifically
given. The Parks and Wildlife Department as such has no specific
authority over state-owned lands other than aquatic life in river
beds. Generally speaking, its authority over state lands would
be no different than its delegated authority to control game
and wildlife on privately owned land. The Parks and Wildlife
Department's authority to declare a moratorium on the taking of
any specie of game from state land must be based on a purely game
conservation concept and not on the fact that the land in ques-
tion is state-owned. Again, a search of the Texas statutes
.fails to reveal the existence of any law authorizing the Parks
and Wildlife Department to declare state lands to be a game
refuge. The only state-owned lands which the Parks and Wild-
life Department might declare a game refuge are state-owned
lands dedicated to the use of the Parks and Wildlife Department.
V.
Your question No. 5, asking whether the Texas Parks
and Wildlife Commission is authorized to adopt regulations en-
forcing hunter safety on state-owned land, and whether those
regulations could be so broad as to prohibit hunting altogether
within that context, requires a negative answer.
A search of the Texas statutes relating to the Texas
Parks and Wildlife Department and hunting do not reveal any
authority for the Parks and Wildlife Commission to adopt hunter
safety rules and regulations that would be so broad as to pro-
hibit hunting altogether on state land.
VI.
We likewise have concluded that your sixth question,
whether the Parks and Wildlife Department has the authority to
conduct controlled hunts on state-owned river beds and/or rail-
road rights-of-way as is presently done on state-owned wildlife
management areas with permits issued on a drawing basis, must be
answered in the negative. A search of the Texas statutes fails
to reveal any authority for the Parks and Wildlife Department to
conduct controlled hunts on state-owned river beds or on rail-
road rights-of-way. In the absence of such a statutory grant of
;ath;&ty, the Parks and Wildlife Department could not legally
.
SUMMARY
1. In general, the State is the owner in
trust for the people of Texas of the water, bed,
subsurface, minerals, and wild aquatic life in
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Honorable James U. Cross, page 5 (M-953)
the rivers of Texas that are navigable by
statute and also that are navigable in fact.
2. The State's ownership of the river bed
moves with the meandering of the river which
is brought about by erosion from and accretion
to the banks of the stream.
The State's ownership of the river bed
also follows avulsive changes in the course of
the river.
3. Man-made changes in the course of the
river caused by the building of a dam thereon
do not affect the State's ownership of the
former river bed.
4. The Parks and Wildlife Department does
not have authority to declare a moratorium on
the taking of wild game specie from state-
owned river beds just because the bed is state-
owned. Any moratorium must be based on valid
conservation principles.
5. The Parks and Wildlife Commission is
not authorized to adopt hunter safety regu-
lations for state-owned river beds or other
state land.
6. The Parks and Wildlife Department does
not have authority to conduct controlled hunts
on state-owned river beds or railroad rights-
of-way as is presently done on wildlife manage-
ment areas.
/
Verk/ truly yours,
C. MARTIN
General of Texas
Prepared by J. Milton Richardson
Assistant Attorney General
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Honorable James U. Cross, page 6 (M-953)
APPROVED:
OPINION COMMITTEE
Kerns Taylor, Chairman
W. E. Allen, Co-Chairman
Joseph Sharpley
Dick Chote
Linward Shivers
Ben Harrison
SAM MCDANIEL
Acting Staff Legal Assistant
ALFREDWALKER
Executive ASSiStant
NOLA WHITE
First Assistant
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