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If A River Runs Through It, What Law Applies?

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Q: What is considered a public stream?

A: In Texas a stream is public if it is "navigable in fact,"or" navigable by statute." There is no precise test for whether a stream is navigable in fact. The term is based on the idea of public utility. One court has observed that "[w]aters, which in their natural state are useful to the public for a considerable portion of the year are navigable."1

A stream is navigable by statute if it retains an average width of 30 feet from the mouth up.2 It is important to understand that the entire stream bed is to be included in the width, not just the area covered by water on a given day. A navigable stream may be dry part of the year, but does not lose its character as a navigable stream.

To complicate matters, some Texas land titles originated with Spanish or Mexican land grants, and the law of Spain and Mexico did not distinguish public and private streams on the basis of navigability. Streams were valued primarily as a source of water for household use and for irrigation, rather than a way to move people and goods. So when the sovereign granted land, perennial streams were retained for public use, regardless of navigability, so as to make as much land as possible capable of settlement.3 A stream is perennial if it flows most or all of the year. In determining the rights of holders of title under Mexican grants, the laws of Mexico in effect when the grants were made control.4 So in counties that contain Spanish or Mexican land grants, there are an unknown number of perennial streams which are public streams, even though they may not be navigable.

Q: How do I determine the boundary of a streambed?

A: The Texas Supreme Court has stated that the bed of a stream is "that portion of its soil which is alternately covered and left bare as there may be an increase or diminution in the supply of water, and which is adequate to contain it at its average and mean stage during an entire year, without reference to the extra freshets of the winter or spring or the extreme drouths of the summer or autumn.5" Not clear? Again, the Texas Supreme Court: The streambed is that land between the "gradient boundary" on each bank. The gradient boundary is defined as "a gradient of the flowing water in the stream, and is located midway 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.6" Clear as mud? Blame it on those civil judges.

Q: What if the stream is dry?

A: A navigable stream does not lose its public character during periods of low water. A stream is navigable if the bed of the stream averages 30 feet wide from the mouth up, regardless of the actual water level on a given day.

Q: What is a public lake?

A: The typical public lake in Texas was created by building a dam on a navigable stream. When a navigable stream is dammed, the resulting lake is a public lake, and the public may boat and fish on all of the lake's waters, not just that part directly above the streambed. Therefore, a property owner may not fence off any portion of such a lake.7 For other lakes, the test is whether the lake is navigable. Typically, the small natural lakes in Texas are held to be non-navigable, and therefore subject to private ownership and control. Manmade stock tanks and flood control ponds are usually non-navigable as well. The public has no right to boat, fish, or hunt in or on the waters of private lakes,8 and hunting or fishing without landowner consent is a crime.9 In order to encourage outdoor recreation, the legislature has limited the liability of landowners who allow the public to use their property for recreational purposes.10

Q: But doesn't the state own the waters of ALL lakes and flowing streams, plus the fish that live there?

A: Yes, the state does own the water of every lake and natural stream, and the fish that live there.11 But that does not give the public the right to fish or boat in private lakes or streams.12

Q: Some landowners in my county have deeds to the riverbed. Can they exclude the public from their part of the river?

A: Not if the river is navigable. The policy of the government of Texas, expressed in statute since the days of the Republic, has been to retain the beds of navigable streams as public property.13 However, the state surveyors did not always adhere to this law, and some land grants purported to include the beds of navigable streams. To remedy this situation, in a 1929 law known as the Small Bill, the state relinquished to the adjoining landowners certain property rights in the beds of some navigable streams. However, this statute declared that it did not impair the rights of the general public and the state in the waters of the streams.14 So even if a landowner's deed includes the bed of a navigable stream, and taxes are being paid on the bed, the public retains its right to use it as a navigable stream.

It is a fairly common myth that a person boating along a "Small Bill" stream may not set foot on the streambed if the landowner forbids it. This is based on the notion that a person who steps into the streambed has entered onto private property within the meaning of the criminal trespass law.15 This may have some applicability when the waters of a stream leave its banks and a boater navigates out of the streambed and steps onto the adjacent private lands, or on coastal land when tide waters cover private property. But the general public has the right to walk within the boundaries of any navigable streambed, even if there are private ownership rights under the Small Bill.16

Q: What is it legal to do in a public lake/stream?

A: Texas courts have recognized that a member of the public may engage in a variety of activities in, on, and along a public lake or stream. Besides boating, persons may swim, float, walk, wade, picnic, camp, and (with a license) fish.17 These activities must be confined to the waters of the lake or stream and the streambed. The public does not have the right to cross private property to get to or from public water.18 In fact, that can constitute criminal trespass, if the other elements of the offense are present. With some exceptions, driving a motor vehicle in the bed of a navigable stream is prohibited, other than the Canadian River and the Prairie Dog Town Fork of Red River.19

Q: Is it lawful to hunt or target shoot in or on a public lake or stream?

A: Hunting or shooting is prohibited on numerous rivers and lakes by local ordinance or by statute.20 Shooting and hunting on lakes and rivers presents practical challenges even where not prohibited by law. For example, it is a crime to discharge a firearm projectile across a property line, such as shooting from a state-owned streambed onto or over the adjacent private property.21 Additionally, if the animal or bird escapes to or falls on private property adjacent to the water, the hunter is faced with a dilemma: Retrieve the animal and risk committing the offense of trespass, or stay within the area open to the public and risk committing the offense of waste of game or failure to retrieve.22 It is not lawful to hunt on or over private land that is flooded by a public stream, if the submerged private land is properly posted.23

Q: May a boater on a navigable stream lawfully go onto private land to check out or portage around an obstruction or hazard?

A: Navigable streams will sometimes have obstructions or hazards such as dams or log jams. For safety's sake, a boater must get out and scout to see if there is a safe route through. And sometimes it is necessary to portage the hazard or obstruction - carry the boat and gear around it on a reasonable, safe route.24 Navigation of the state's inland and coastal waters is one of several "public rights and duties" declared by the Texas Constitution.25 A right of portage has been recognized as a necessary part of the right of navigation in some other states, but there is no clear authority in Texas. The portage issue implicates the criminal trespass statute, and possibly the defense of necessity.26

Q: How can I tell whether a stream/lake is public or private?

A: Texas courts have the final say over this question, and there have been several cases recognizing particular streams as navigable or perennial, and therefore public. But there is no master list. Somewhere in the courthouse there's probably a map showing the original surveys of your county. From this map you should be able to tell which if any land grants were made by Spain or Mexico. Within these grants, remember that all perennial streams are public, regardless of navigability. Also, if a survey stops at a stream's bank and does not cross it, this means the original surveyor believed that the stream was to remain public, as a navigable or perennial stream. The reverse is not true, however, since as mentioned above in many cases the surveyor failed to stop at the bank of a navigable stream even though the law directed him to do so. In regards to statutory navigability, for some streams it may be fairly straightforward to look in the vicinity of several stream crossings and estimate whether the streambed averages 30 feet or more in width. The sheriff, landowners, one of your predecessors, or a local game warden may know whether the body of water has historically been treated as public or private. You could also check with prosecutors upstream and downstream. Sometimes a state agency (like TCEQ, the General Land Office, or Parks and Wildlife) will have made some kind of determination of navigability as part of its responsibility to administer some law or program. Sometimes it's helpful to do a word search in the cases and A.G. opinions for the name of the stream. Although this is a state issue, the federal courts occasionally issue an opinion containing helpful information about a stream, so take a look at the federal cases too.

Q: Is it lawful to fence a stream?

A: That probably depends on whether the stream is public or private. Since the public has a general right to walk and boat in a public stream, a landowner has no right to erect or maintain a fence that interferes with those lawful activities.27 Additionally, it is a crime to restrict, obstruct, intefere with or limit public recreational use of a navigable stream.28 It is a more serious crime to obstruct a waterway to which the public has access so as to make passage impossible or unreasonably inconvenient or hazardous.29 It is easy to imagine situations where a fence in or across a public stream would do just that. But do these statutes prohibit a landowner from putting a fence in or across a private stream? That sounds unlikely, since the public has no lawful access to a private stream without the consent of the owner of the streambed. So it seems to be lawful for a landowner to erect a fence in a non-public streambed.

Q: Is it legal to fish from a highway bridge, or in the highway right of way?

A: It is an offense to fish from the deck or road surface of any bridge or causeway on a road maintained by the Texas Dept. of Transportation.30 However, no law prohibits fishing in public water from a highway right of way, or underneath a highway bridge. Keep in mind that, in private bodies of water, the owner of the bed controls the right to fish above his portion of the bed. But in some cases the state or county owns the right of way, which indicates that the public may lawfully wade and fish in the portion of the stream which lies over the publicly-owned right of way. In other cases, the entity which built the road has only acquired an easement for road construction and maintenance, leaving the fishing rights with the landowner.

Q: Can a marina operator or lakeside landowner keep boaters away from his docks?

A: Not on public water. If a lake is public water, the public has the right to boat the entire lake, and to fish from a boat (subject to regulation by government entities).31 A person who interferes with a lawful boater may be committing the crime of obstructing a waterway and/or harassment. Both are Class B misdemeanors.32 By the same token, a boater who unreasonably obstructs access to or from a dock or boat slip may be guilty of obstructing a waterway.

Q: What agency/agencies have regulatory authority over activities that take place in and on the public streams of this state?

A: The legislature has retained much of this regulatory power for itself, and delegated out some functions in a piecemeal fashion. TCEQ regulates water pollution, the building of dams, and diversion of water.33 Local river authorities may own water rights and exercise other specific powers granted by statute. The General Land Office regulates crossing easements and mineral development in public streambeds, and has some authority to remove unauthorized or dangerous structures from state-owned land.34 Texas Parks and Wildlife Department regulates fishing and hunting, as well as the removal of sand and gravel from public streambeds.35 Placement of dredged or fill material into the waters of the United States is under the jurisdiction of the U.S. Army Corps of Engineers. Construction or other work in the 100-year floodplain may require approval by the Federal Emergency Management Agency, whose authority is usually delegated to the county or other local Floodplain Administrator. Local government entities have some authority to regulate boating on public waters.36

Q: What are the rules on the coast?

A: The seaward boundary of the State of Texas extends three marine leagues into the Gulf of Mexico from the coastline.37 This is a distance equal to nine nautical miles, or 10.359 statute miles.38 Within this boundary, the state owns the water and the beds and shores of the Gulf of Mexico and the arms of the gulf, including all land which is covered by the gulf and the arms of the gulf either at low tide or high tide.39 It is well-settled that the public has a general right to boat and fish in the waters of the Gulf of Mexico within Texas, including all of its bays and arms.40

Due to a variety of manmade causes (including subsidence, dredging, and the construction of levees and canals), some private land along the coast is covered intermittently or continuously by tide waters. The general rule in tidal waters is "if you can float it you can boat it," even though the land beneath the waters may be privately owned.41 It is not settled whether a fisherman who wades in tidal waters on private land submerged by artificial means may be guilty of criminal trespass.42 It is not lawful to hunt in or over privately owned submerged land that is above the mean high tide line of the Gulf of Mexico and its bays and estuaries.43

Conclusion

It is often difficult to determine whether a given body of water is public water, and if so, where the boundary lies between it and the adjacent private property. These issues are sometimes argued by landowners and outdoorsmen, and the potential for violence is very real. Hopefully, this will give you some of the basic concepts to begin analyzing these questions and helps you guide your local law officers and settle constituent confrontations. Next, bone up on the real estate laws of 19th century Spain and pick up some advanced land surveying techniques, and you will be on your way to becoming an expert.

Endnotes

1. Welder v. State, 196 S.W. 868 at 873 (Tex. Civ. App. - Austin 1917, writ ref'd)

2. Nat. Res. Code Sec. 21.001

3. Motl v. Boyd, 286 S.W. 458 (Tex. 1926)

4. Manry v. Robinson, 56 S.W.2d 438 (Tex. 1932)

5. Motl v. Boyd, 286 S.W. 458 at 467 (Tex. 1926)

6. Diversion Lake Club v. Heath, 86 S.W.2d 441 (Tex. 1935). For a thorough discussion of the history and development of the gradient boundary and the method of applying it on the ground, see "The Gradient Boundary - The Line Between Texas and Oklahoma Along the Red River" by Arthur A. Stiles, 30 Tex. Law Rev. 305 (1952).

7. Diversion Lake Club v. Heath, 86 S.W.2d 441 (Tex. 1935); Hix v. Robertson, 211 S.W.2d 423 (Tex.App. - Waco 2006)

8. Taylor Fishing Club v. Hammett, 88 S.W.2d 127 (Tex. Civ. App. - Waco 1935, writ dism'd); Reed v. State, 175 S.W.2d 473 (Tex. Civ. App. - Eastland 1943, no writ)

9. Parks and Wild. Code Secs. 61.022 and 66.002

10. Tex. Civ. Prac. and Rem. Code Ch. 75

11. Water Code Sec. 11.021; Parks and Wild. Code Sec. 1.011

12. Taylor Lake Fishing Club v. Hammett, 88 S.W.2d 127 (Tex. Civ. App. - Waco 1935, writ dism'd)

13. Nat. Res. Code Sec. 21.012; State v. Bradford, 50 S.W.2d 1065 (Tex. 1932)

14. Tex. Civ. Stat. Art. 5414a

15. Penal Code Sec. 30.05

16. A.G. Op. S-208 (1956)

17. See Tex. A.G. Op. S-208 (1956) and cases cited therein.

18. Diversion Lake Club v. Heath, 86 S.W.2d 441 (Tex. 1935)

19. Parks and Wild. Code Secs. 90.002 and 90.003

20. Parks and Wild. Code Secs. 82.712, 82.722, 82.732, 82.762, 114.011, 130.013, 134.041, 136.012, 143.023, 202.031, 246.012, 258.011, 272.051, 283.022, 284.001, and 350.001

21. Parks and Wild. Code Sec. 62.0121

22. Parks and Wild. Code Sec. 62.011

23. Parks and Wild. Code Sec. 62.002

24. Parks and Wild. Code Sec. 90.007

25. Tex. Const. Art. XVI, Sec. 59

26. Penal Code Secs. 30.05 and 9.22

27. Port Acres Sportsman's Club v. Mann, 541 S.W.2d 847 (Tex. Civ. App.-Beaumont 1976, writ ref'd n.r.e.); A.G. Op. S-208 (1956)

28. Parks and Wild. Code Sec. 90.008

29. Penal Code Sec. 42.03

30. Parks and Wild. Code Secs. 66.008 and 66.012

31. Diversion Lake Club v. Heath, 86 S.W.2d 441 (Tex. 1935)

32. Penal Code Sec. 42.03; Parks and Wild. Code Sec. 62.0125

33. Water Code Sec. 11.121

34. Nat. Res. Code Sec. 51.3021 and Ch. 52, Subch. C

35. Parks and Wild. Code Ch. 61 and Ch. 86

36. Parks and Wild. Code Sec. 31.092

37. U.S. v. Louisiana, 363 U.S. 1 (1960); Nat. Res. Code Secs. 11.012 and 11.013

38. Employers Mut. Cas. Co. v. Samuels, 407 S.W.2d 839 (Tex. Civ. App. - San Antonio 1966, writ ref'd n.r.e.)

39. Nat. Res. Code Sec. 11.012

40. See A.G. Op. M-1210 (1972)

41. A.G. Letter Op. 97-079 (1997); A.G. Op. DM-169 (1992)

42. A.G. Letter Op. 98-117 (1998)

43. Parks and Wild. Code Sec. 62.002

 


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