Untitled Texas Attorney General Opinion ( 1962 )

Iwme4-lcX IIR. TsxAn
October 24, 1962
Honorable D. Brooks Cofer, Jr. Opinion No. W-1458
District Attorney
Brazos County Re: Construction of Articles
Bryan, Texas 4026 and 4028, Vernon's
Civil Statutes, concern-
ing in which stream or
bed of the Navasota River
the public has the right
Dear Mr. Cofer: to fish.
Your letter states the following facts:'
"There Is growing conflict betwe,en
landowners along the Navasota River and
the public desiring to fish In the waters
of the stream. This river forms the
entire eastern boundary of Brazos County,
but due to its nature basically changes
its course and bed quite often, there
being no clearly defined~channel as is
the case of the Brazos River or others
which have a constant flowing stream in
drouth or otherwise.
?In one location In the present case
the landowner since 1938 was deeded a
tract of some 190 acres, which land was
described by metes and bounds as from the
west bank of the 'New' Navasota River ~to
the west bank of the Old Navasota River,
meaning the real or established channel
of the river which is the boundary be-
tween Grimes and Brazos Counties. Both
the beds at this time have water In them,
but the new river bed Is the more pro-
nounced stream of flow; In time of overflow
both beds, as well as others are flowing.
For your Information the 'new' river men-
tioned is located-west of the old river
In Brazos County."
Hon. D. Brooks Cofer, Jr., page 2 (``-1458)
We understand that the land in question Is part of
an original grant from the State of Texas made In 1849 and
that the beds of both streams are an average of 30 feet wide
from the mouth up to the point In question. We have assumed
that the change In the river's course was an avulslve (sudden)
one, as this la usually the case In such circumstances.
You ask the following question:
"In the light of Art. 4026 R.C.S.,
and also Art. 4028, in which stream or
bed as the case may be does the public
have a right to fish In, in accordance
with the rules and regulations p;bllshed
by the Qame and Fish Commission?
Article 4026, V.C.S., states, in part:
"All fish and other aquatic animal
life contained In the fresh water rivers,
creeks and streams and In lakes or
sloughs.subJect to overflow from rivers
or other streams within the borders of
this State are hereby declared to be the
property of the people of,this State.
All of the public rivers, bayous, lagoons,
creeks, lakes . . . in this State . . .
together with their beds and bottoms, and
all of the products thereof, shal~lcon-
tinue and remain the property of the,
State of Texas, except In so far as the
State shall permit the use of said waters
and bottoms or permit the taking of the
produc$s of such bottoms and waters.
. . .
Article 4028, Vernon's Civil Statutes, cited In your
letter does not seem pertinent to this question as It deals
with rights of riparlans along creeks, bayous, lakes or coves
to gather, plant or sow oysters. This statute does not seek
to bestow exclusive fishing rights on rlparians other than
as there specified with regard to oysters. We do not under-
stand that any oyster rights are Involved In this question.
Concerning grants made since the effective date of
the Act of 1837 (Article 5302, V.C.S.), if the average width
of a river or stream from its mouth up to the point In question
Hon. D. Brooks Cofer, Jr., page 3 (``-1458)
is 30 feet or more, the stream Is considered navigable in
law, whether or not actually navigable In fact, Diversion
Lake Club v. Heath, 126 Tex. 129; 86 S.W.2d 4.41n93>), and
h State Is held t'obe the owner of the bed.
' Ro&aon 122 Tex. 213, 56 S.v 2d’43t)(1932) I$iE?SV.
State, i42 Tex. 559, 180 S.W.id 144 (1944): See also
E;ey General's Opinions Nos. ~-208 (1956) and O-156
.
The Act of 1840 (Article 1, V.C.S.) adopted:
so far as it is not lnconsls-
tent tiitithe constitution and laws of
this State . . ,lr
the common law of England as the rule of decision unl&s altered
or repealed by the Legislature. Questions concerning the appll-
cablllty of common law rules as they apply to Texas water law
have long vexed the courts. This opinion attempts to specify
wherever certain rules pertain only to grants made after the
above statute became effective.
The "gradient bouridary"established by Colonel
Stiles' technique, as described by him In 30 Texas Law Review
305, has been held to be the'dividing line between public
river beds and private rlparlan lands. Oklahoma v. Texas 265 U.S.
493 (19241; State v. Heard, 199 S.W.2d 191 (Cl A 146)
affirmed, 146 Tex. 139 204 S.W.2d 344 (1947); DT;e%on Laki
Club v. Heath au ra. 'The Diversion Lake Club case
t 66 S W 2d -4
4&d that as to grants made after ir%z?l,
?C .S 'b&me effective, bordering or crossing statutorily
navlg&e streams, the public, with certain emergency excep-
tions, could not make use of any rlparian land beyond this
"gradient boundary" for fishing; the "gradient boundary" was
there said to be a gradient of the flowing water located mld-
way between the lower level of the flowing water that just
reaches the cut bank and the higher level of It that just does
not overtop the cut bank. The cut banks are defined as the
water-washed and relatively permanent elevations or accllvltles
which ordinarily eemre to separate the waters from the adjacent
upland, whether valley or hill, and to preserve the course of
the stream. Oklahoma v. Texas 261 U.S. 340 (1923); Mot1 v.
Bo d 116 Tex. 62, 2!t)b S.W. 458 .(1926);Diversion Lakmv.
Fddl , supra.
Hon. D. Brooks Cofer, Jr., page 4 (WW-1458)
With respect to the title to the beds after an
avulslve
__-_ --. - change
..````~_~ of the river's course in which the river
actually abandons Its old bed and makes a new bed, the lead-
ing case In Texas is Manry v. Robison, au ra. If the river
has made a new bed wl%hout abandoning tE-5 e o d bed so that
there are two regularly flowing channels, we must examine
Maufrais v. State au ;a and &ate v. Jane8 Gravel Co:, 175
S .W.2d 739 (Clv.Aip+&), partially affirmed and partially
reversed In the Maufrais case, supra, to determine the owner-
ship of the beds. Ma y v. Robison
State acauires title io'the new bed:
on each side of the avulsively abandoned bed of-a stream above
tidewater acquire title to the abandoned bed. Unfortunately
the court in the Manry case expressly left open the question
of fishing rights. It is well settled, of course, that where
a stream which serves as a boundary suddenly abandons Its old
bed and forms a new one. the boundary line as between riparian
land owners remains unchanged. Ross-v. Green, 135 Tex. iO3,
107, 139 s.w.2d 565, 566 (1940); Maufrais v. State,,supra.
If, however, the river, in making the new stream
does not abandon the old bed and two streams customarily now
flow with rlparian land cut off between them, Maufrals v.
, and State v. Janes Gravel Co., au ra, hold that
lres ,tltleto the new stream an?!&a without
losing title to the old stream and bed, but that the owner
of the land between the two beds retains his title in such
land.~ See also City and County of Dallas Levee Improvement
District v; Carroll 263 S.W.2d 307 311 (Clv.App. 1953
ref. n.r.e.) for a ioldlng that whece it is clearly est~b````d
that the old river bed has not been abandoned, the State re-
tains title thereto.
The Legislature has declared by statute that the
waters of every Texas flowing river or natural stream and of
all lakes, bays or arms of the Gulf of Mexico are the prop-
erty of the State. Art. 7467, Vernon's Civil Statutes. Ar-
ticle 4026, Vernon's Civil Statutes, partially quoted au ra
extends this public ownership to the fish and other aqua
+k
animal life of fresh water rivers, creeks and streams and
lakes or sloughs subject to the overflow from Texas rivers
or streams. Such ownership of waters and fish has been held
to be In trust for the people of the State. Goldsmith &
Powell v. State, 159 S.W.2d 534 (Civ.App. 1942, error ref.).
A tl 1 4028 Vernon's Civil Statutes, places a 'limitationon
A~ttc4&?6 wiih regard to oysters, as discussed above.
Hon. D. Brooks Cofer, Jr., page 5 (``-1458)
The leading case concerning fishing rights
.. ^~is the
Diversion Lake Club case, au ra. In that case, r;nesupreme
court left the queatlon’of-%I
pu ic fishing rights In waters
over private lands.somewhat-unclear with-two-varying holdings.
On the one hand, the court held, at 86 S.W.2d 443, that the
general rule Is that the fishing rights, whether exclusively
In the land owners bordering the stream or in the public,
are determined by the ownership of the bed. On the other
hand. the court held, at 6b S.W.2d 44b, that the public could
fish-in the waters oGer the private lands lnvolveh In that
case because the waters were public. Citing the first of
these two holding- court, In Taylor Fishing Club v.
Haminett,88 S.W.2d 127 (Clv.App. 1935, error dism.) h 1
-fIsherman had no right to fish without perml&i&dof
the rlparlan owner In a non-navigable lake because the bed
belonged to the riparlan owner, and thus he had exclusive
fishing rights. In the light of the holding In Manr
----esp In
Roblson, supra, that the State did not retain owners
-abandoned river bed merely because it was covered by
still water, the language of Article 5302 implies that refer-
ence is there made to active rivers or streams, and not to
those which have been abandoned. If the old bed of the Nava-
sota River has been avuleively abandoned In favor of the new
one, thus legally transferring the title In the old bed to
the land owners riparlan thereto, 6ur fact sltuatlon~may be
distinguished In this Instance from that In the Dlverslon Lake
Club c@se, au ra, with regard to whether the public may fish
Inpublic wa-+-
ers over private lands. Diversion Lake which
was there formed was formed by a man-made dam built upon public
authority, and the river was still flowing; whereas the river
in our case MS made a natural, avulslve change, .and, If the
water, lrithe old bed is still water and only flows In times
of flooding, it could not be said to be a flowing public river
anymore under the test of.Manry v. Roblson, supra.
The cases of Reed v. State, 175 S.W.2d 473 (Clv.App.
1943) and Smith v. Godart, 293-211 (Clv.App. 1927), held
that the public may not cross privke lands, without the land
owners’ permlea5.on,to get to streams In which the Dublic has
a right to fish. Al80 see Art. 1377b, Vernon’s Penal Code.
Compare, however, the holding in Attorney General’s Opinion
No. s-208 (1956), that the public could walk down the dry or
submerged bed of a river which is privately owned by virtue
Hon. D. Brooks Cofer, Jr., page 6 (~WW-1458)
of the Small Bill (Art. 5414a, V.C.S.) for the purpose of
seining and flshlng in water holes In the bed of the river,
even though the river passed through fenced land with water
gape:at the entry and exit points, without violation of Ar-
ticle 1377, Vernon's Penal Code, which was the predecessor
of Article 1377.b.
In the event a land owner abutting the river is
claiming title to the river bed b;yvirtue of Article 5414a,
Vernon's Civil Sf;atutes,it should be noted that part of this
statute states, nothing in this act contained shall
Impair the rlghts'of the general public and the State In the
waters of streams. . . .' See also State v. Bradford, 121
Tex. 515, 50 S.W.2d 106 1076 (1932‘). A similar provision
Is found In Article 541.?
~a-1,Vernon's Civil Statutes.
Thus,.we answer your uestiomif there.are now two
ordinarily flowing "navigable' qunder Art. 5302) streams where
there previously existed only.one before, unless expressly and
legally granted by the State to the:abuttlng land owners, the
State.owns both beds and streams and the public has t,he.rlght
to flsh,In both streams, butmay not cross private ,landsin
order to reach such streams without permission of the land
owners; nor may the public as to the premisesin question,
cross the "gradient boundary," determined by the Stiles method,
between such grant and the stream. If the.navlgable river has
actually abandoned the old bed in favor of the new one, leaving
In the old bed only still water such as that in a freshwater
lake with only the new,navlgable stream flowing except In
times of heavy rainfall, then the State no longer owns title
to the abandoned bed, but now owns title to the newly formed
bed. The land owner who formerly owned the title to the land
now constituting the.~newbed thus would be deprived of his
ownership from the Igradient boundary" on one side of the
new bed to that on'the other"side thereof, the land owners
riparlan,to or abutting the old abandoned stream each acqulr-
lng title to the abandoliedbed. The public would thus no
longer have the right to fish In the old stream bed unless
the navigable river again changed Its course and returned to
this abandoned .bed.
Hon. D. Brooks Cofer, Jr., page 7 (W-1458)
SUMMARY
If a navigable river avulsively
abandons Its old bed for a new one, the
public fishing rights follow the newly
made stream bed and no longer attach to
the old. If, however, the navigable
river makes a new stream and bed with-
out abandoning the old one, the public's
fishing rights apply to each.
Yours very truly,.
WILL WILSON
Attorney General of Texas
By&~&i!ii‘i!
Thomas H Peterson
Assistant
THP:afg
APPROVED:
OPINION'COMMITT.EE
w. V. Geppert, Chairman
Arthur Sandlln
Elmer Mcvey
Al Pruett
REVIEWED FORTHEATTORNEYGENERiiL
BY: Leonard Passmore