Untitled Texas Attorney General Opinion

Oc,:ober29, 1986
Honorable Curtis R. Wilkin3on Opinion No. JM-572
Lamb County Attorney
County Courthouse, Room 103 Re: Whether a lake in a munici-
Littlefield, Texas 79339 pal park is public water under the
jurisdiction of the Texas Depart-
ment of Parks and Wildlife for
purposes of the Water Safety Act
Dear Mr. Wilkinson:
You inquire whether a Blake in a certain municipal park is public
'water within the meaning of the Water Safety Act and subject to the
jurisdiction of the Texm Department of Parks and Wildlife for
purposes of the Water Safety Act.
A home rule city has leased for recreational puxposes a reservoir
and adjacent shoreline on private ranch land outside the limits of the
city. We are advised that the reservoir is approximately 1200 surface
acres and is fed by.underground springs and rainfall and that citizens
of the area have used the lake extensively for swimming, skiing,
fishing, and camping for many years. By ordinance, the city has
declared the reservoir ani.adjacent shoreline a municipal park for as
long as the ordinance and long term lease remain in effect. The city
also adopted the provisions of the Texas Parks and Wildlife Code as an
ordinance to govern the behavior in and use of the municipal park.
Statutory and case law determine whether specific bodies of water
are the property of the slate. Statutory law now codified as section
11.021(a) of the Water Code provides that
-
[t]he water of t!leordinary flow, underflow, and
tides of every :il.owingriver, natural stream, and
lake, and of evsery bay or arm of the Gulf of
Mexico, and the storm water, floodwater, and rain-
water of every river, natural stream, canyon,
ravine, depressi.on,and watershed in the state is
the property of the state.
The statute has been interpreted by the courts in light of the
constitution and the law under which lands were granted. Water from
springs and surface water Erom rainfall covering private land is not
P
p. 2549
Honorable Curtis R. Wilkinson - Page 2 (m-572)
always state water within the meaning of section 11.021(a). See
Turner v. Big Lake Oil Co., 96 S.W.2d 221, 228 (Tex. 1936) (rainwater
on private land); 527 S.W.2d 754, 759 (Tex. Civ. App.
- San Antonio 1974, n.r.e.) (ownership of water from
springs). See also Diversion Lake Club v. Heath, 86 S.W.2d 441, 446
(Tex. 1935) (water diverte(Tfrom navigable stream); Reed v. State, 175
S.W.2d 473 (Tex. Civ. App. - Eastland 1943, no writ) (surface water in
non-navigable lake); Taylor ,Fishing Club v. Hasauett, 88 S.W.2d, 127,
130 (Tex. Civ. App. - Waco 1935, writ dism'd) (water from springs,
rainfall, and floodwaters in non-navigable inland lake); Attorney
General Opinions H-805 (1976); H-68 (1973); M-1210 (1972); O-6579
(1945).
The question of whether specific water is state water under
section 11.021(a) of the Rater Code usually involves facts that this
office cannot determine in the opinion process, such as the source and
location of the water. However, the real issue before us is whether
the reservoir is public water for purposes of the Water Safety Act and
not whether it is the property of the state. In our opinion, the lake
-on private land that is lt!asedto the city for recreational purposes
and used as a public munic:.palpark is public water within the meaning
of the Water Safety Act, and the Parks and Wildlife Department may
enforce the act.
The provisions of the Water Safety Act "apply to all public water
in this state and to all watercraft navigated or moving on the public
water." Privately owned water is not subject to the provisions of the
Water Safety Act. Parks 6 Wild. Code §31.004. Section 31.003 of the
Parks and Wildlife Code provides that
[l]n this Chapter [the Water Safety Act]:
. . . I
(5) 'Water oj! this state' means any public
water within the territorial limits of this state.
The Water Safety Act does not define "any public water" within the
territorial limits of this state. The legislature, however, did state
the policy of the act. Se:tion 31.002 provides:
It is the duty of this state to promote
recreational water safety for persons and property
in and connected with the use of all recreational
water facilities in the state, to promote safety
in the operatior-and equipment of facilities, and
to promote uniformity of laws relating to waZZ
safety. (Emphases added).
p. 2550
Honorable Curtis R. Wilkinmn - Page 3 (JM-572)
.
P
We do not construe the charter powers of the city but assume,
without deciding, that the city is authorized by its charter to
acquire property for use as a city park. A city is authorized by
state statute to acquire and operate property for recreational
purposes, including land outside the city limits. See V.T.C.S. art.
6081e (cities may acquire lyr gift, devise, purchasezr condemnation
land for oublic uarks wit:l:Lnor without limits of the citv): art.
6081f (cities may acquire land for park purposes and ope&;e and
maintain parks). See also V.T.C.S. arts. 1015c-1; 1176; City of
College Station v. Turtle R%k Corp., 680 S.W.2d 802, 807 (Tex. 1984);
Attorney General Opinions Tt-889, M-804 (1971). A city's power to
acquire property for municip.alpurposes implies the power to lease it.
See Attorney General Opinion Nos. MW-535
- (1982); O-6911 (1945).
A lease of real property is a sale of the right to use and occupy
the property for a certain period of time and is a transfer of a right
of ownership and an interest in the property. See State National Bank
of El Paso v. United States, 509 F.2d y32.835 (5th Cir. 1975);
Citizens Bank and Trust CoTv. Wy-Tex Livestock Co., 611 S.W.2d 168,
‘171 (Tex. Civ. App. - Amariilo 1981, writ ref'd n.r.e.); L. A. Durrett
h Company v. Iley, 434 S.W.Zd 367, 371 (Tex. Civ. App. - Dallas 1968,
writ ref'd n.r.e.). In Evans v. Ropte, 96 S.W.2d 973 (T&x. 1936). the
court, quoting from a dis&sion by Emory Washburn in his book on
Servitudes and Easements, points out that a right to take,water from a
spring or well is a grant of own.srshipand constitutes an interest in
real estate.
The Texas Supreme Court has stated that a municipal park is a
place where the public gene.rally.maygo for various kinds of recrea-
iion and amusement. --
L&S v. City if-Fort Worth, 89 S.W.2d 975, 978
(Tex. 1936). See also ICi!y;v. Sheppard, 157 S.W.2d 682, 685 (Tex.
Cl". ADO. - Austin 1941. writ ref'd w.o.m.) (oublic oark is ulace
which public at large may-resort to for recreation). Land acquired by
a city for use as a public park is acquired for a public use.
It is our opinion tha,t the fact that the city owns a leasehold
interest in the lake which is used as a public municipal park ana'"a
recreational water facility in the state" makes the lake public water
for purposes of the Water Safety Act. We conclude ,that, during the
duration of the lease to ~1e city and the city's use of the lake as a
municipal park, the lake is not privately owned water within the
meaning of the Water Safety Act. Hence, it is not excluded from the
provisions of the act.
SUMMARY
A lake on private land that is leased to a city
for recreational purposes and used as a public
municipal park illpublic water within the meaning
p. 2551
Honorable Curtis R. Wilkinson - Page 4 (JM-572)
of the Water Safety Act, and the Parks and
Wildlife Department may enforce the act.
J-b
Very truly yours,
.
JIM MATTOX
Attorney General of Texas
JACK HIGHTOWER
First Assistant Attorney General
MARY KELLER
Executive Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee ,
'Prepared by Nancy Sutton
Assistant Attorney General
p. 2552