Untitled Texas Attorney General Opinion

Honorable J. R. Singleton
Executive Director
Texss Parks and Wildlife Department
John H. Reagan Building
Austin, Texas 78701
Opinion No. M-465
Re: Requirementsfor
Permit to dredge
bay materials in
Qulf area alleged
to be privately
Dear Mr. Singleton: owned.
Your request for our opinion sets out the following
questions:
1. When a bay bottom Is shown to be privately-owned
property, is a permit from the Parka and Wildlife
Department required before bay bottom materials
can be taken?
2. If a permit is required Sor removal of bay bottom
materials from privately-ownedbay bottoms, Can
our Departmentmake a charge for the material re-
moved?
3. Can the burden of proof as to the private owner-
ship of a bay bottom area be placed upon the
owner?
4. IS the permlttee falls to provide reasonable proof
of ownership to the satisfactionof our Department,
can the Parks and Wildlife Commission charge for
the removal of all bay bottom material from the
entire area for which the permit Is Issued upon a
presumptionthat all of the bay bottom area not
shown to be the private property of the permittee
is State-owned?
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Hon. J. R. Singleton, page 2 (M-465) .
You have advised us that you have a pending appll-
cation for a permit to dredge the bottom or sedimentary
materials from under a portion of Galveston
. . Bay,
-- which
_
applicant contends is privately ownea suomergea Lana.
You further advised us that this problem is one of con-
siderable future consequenceIn handling dredging per-
mits.
In view of the future importanceto your depart-
ment, we shall examine in some detail the nature Of the:;
interest and ownership of'submergedtidal lands.
As a general principle,all parts of the Qulf of
Mexico, including its bays and Inlets, within the State
of Texas are the property of the State of Texas. The
lenal history and vertlnent statutes are clearly set out
135 Tex& 319, 143 s.W.2d
"It is pertinent here to review briefly the
legal history of the State's ownership of the
waters and submerged lands of the oulf of
Mexico. On December 19, 1836, It was enacted
by the Senate and the House of Representatives
of the Republic of Texas that from and after
the passage of that Act, the civil and political
jurisdictionof the Republic!was declared to ex-
tend to the following boundaries, to wit: 'Be-
ginning at the mouth of the Sablne river, and
,runningwest along the Gulf of Mexico three
leagues from land, to the mouth of the Rio Ctrande,
thence up the principal stream of said river to
its source, thence due north to the forty-second
degree of north latitude, thence along the bound-
ary line as defined in the treaty between the
United States and Spain, to the beginning,'
Qamelts Laws of Texas, vol. 1, p. 1193. In the
Resolution of the Congress of the United States
pertaining to the Annexation of the Republic of
Texas as a State into the Federal Union, of date;
March 1, 1845, 5 Stat. 797, it was provided that
the Republic retained for the State ‘all the vacant
and unappropriatedlands lying within Its limits,'
subject only to the superior rights of navigation
of the Federal government In the navigable waters
of the State. Article 4026, R.C.S. 1925, which Is
a re-enactmentof a prior statute, provides, In
,part, as follows: 'All of the public rivers,
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. .
Hon. J. R. Singleton,page 3 (M-465)
bayous, lagoons, creeks, lakes, bays and inlets
in this State, and all that part of the Qulf of
Mexico within the jurisdictionof this State,
together with their beds and bottoms, and all
of the products thereof, shall continue and re-
main 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 products of such bottoms and waters,
* * **I
Article 7467, R.C.S. 1925, provides, in part,
as follows: 'The waters of the ordinary flow
and underflow and tides of every flowing river
or natural stream, of all lakes, bays or arms
of the Gulf of Mexico, and the storm, flood or
rain waters of every river or natural stream,
canyon, ravine, depression or watershed, within
the State of Texas, are hereby declared to be
the property of the State, * * *,I
(4) This Court in many important declslons
has zealously guarded and enforced the rights of
this State to the public lands of the State as
provided and guaranteed to it in the foregoing
resolutionsof the Republic of Texas, the resolu-
tions of the United States Congress appertaining
to the annexation of the Republic of Texas, and
In the Acts passed by the Legislatureof the State
of Texas. And by virtue of Article 5416, R.C.S.
1925, Vernon's Ann.Civ.St.art. 5416, which is a
re-codificationof an older statute, this Court
latest expressionsof th C t on that subject
is contained In the caseeofozieState of Texas
et al v. Bradford, 121 Tex. 515, 50 S.W.2d 1065,
1069, where, in an opinion written by Sharp, J.,
then a member of the Supreme Court Commission
and now a member of this Court, It was said:
'The rule long has been established in this state
that the state is the owner of the soil underlying
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. .
Hon. J. R. Singleton,page 4 (~-465)
the navigable waters, such as navigable stresms,
as defined by statute, lakes, bays, Inlets, and
other areas within tidewater limits within its
borders.'" (Emphasisadded.)
The line on shore between private and state ownership
is fixed at the mean higher high tide. Luttes v. State,
159 Tex. 500. 324 S.W.2d 167 (1958). A change in the tide
line inlaid causes the private owner to lose-his land with-
out redress. State v. balli et al, 144 Texas 195, 190 S.
W. 2d 71 (1944‘)and Luttes v. State, supra.
Therefore, in order for a private owner of land on the
shore line of the Gulf of Mexico, or one of its bays or in-
lets, to successfullyclaim land under tide waters, he must
satisy you of his ownership from the sovereign. city Of
Qm supra.
We are aware that a certain area on the east end of,
Qalveston Island within the.R. C. Trlmble and William
Lindsey survey includes "the flats running to and bor-
dering on the channel". City of Galveston v. Menard
23 Tex. 349 (1859). We understand this area stoppedat
the present 57th Street, whereas the applicant’s tract
lies between 65th and 67th Street. In any event the
affidavit furnished you, and Included with your,request,
is insufficient. It fails to Include any survey plat'.and~'
proof of title from the sovereign,among other reasons.
You are within your right to preslPnethat all the beds
of a bay up to the line of mean higher high tide belong to
the State; and you have jurisdictionover the materials
therein under Articles 4053 and 4053d, Vernon's Civil Stat-
utes. Attorney (feneralOpinion Nos. WW-151, (1957), ~-84,
(196i'),and M-368, (1969).
The subject of this opinion deals with tidewater or
"salt water" islands, reefs, bars, lakes and bays. Arti-
cle 4051, V.C.S., makes a distinctionbetween lands with-
in tidewater limits and those under fresh water.
"All the islands, reefs, bars, lakes, and
bays within the tidewater limits from the most
interior point seaward co-extensive with the
jurisdictionof this State, and such of the
fresh water islands, lakes, rivers, creeks
and bayous within the interior of this State
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Hon. J. R. Singleton, page 5 (M-465)
as may not be embraced in any survey of private
dt th ith 11 th 1 d d f
*er%l %ze, azd allet~sh%ls~a&d~heU
or gravel of whatsoever kind that may be in or
upon any island, reef, or bar, and in or upon
the bottoms of any lake, bay, shallow water,
rivers, creeks and bayous and fish hatcher~les
and oyster beds, within the jurisdictionand
territory herein defined, are include~dwithin
the provisions of this chapter, and are hereby
placed under the management, con;f;rol
and pro-
tection of the Commissioner.....
(Emphasisadded.)
An exclusion was made for those private lands em-
braced in any "survey of prLvate land" under or within
"fresh water". A.permit would, therefore,not be re-
quired where fresh water is Involved as distinguished
from tidewater or salt water.
In view of the foregoing,we will summarizeour
answer:
To ,Question1, our answer Is "yes". Article 4051,
Vernon's Civil Statutes, et seq., requires that you de-
termine whether or not the proposed operation will have
any injurious effect to oysters, oyster beds or fish in
those or adjacent waters.
To Question 2, our answer Is "no".
To Question 3, our answer Is "yes". City of ffal-
veston v. Mann, supra.
To Question 4, our answer is "yes". All ba bottom
is presumed to be State-owned. Articles 4026, 5%16 and
7467.
SUMMARY
All dredging of bay bottoms requires a
permit from Texas Parks and Wildlife
Department. Ownership of bay bottoms
is in the State and burden of proof of
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Hon. J. R. Singleton, page 6 (~-465)
private ownership Is upon the claimant.
Owners of land under freeh water, as
distinguishedfrom tidewater,are not
required to apply for a permit, under
the exclusion of Article 4051.,
y General of Texas
Prepared by Vince Taylor
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Kerns Taylor, Chairman
Qeorge Kelton, Vice-Chairman
Louis Q. Neumann
Houghton Brownlee
James M. Mabry
MalcotnQuick
MEADE F. GRIFFIN
Staff Legal Assistant
EAWTHORNE PHILLIPS
Executive Assistant
NOLA WRITE
First Assistant
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