Untitled Texas Attorney General Opinion ( 1964 )

THE'ATTOF&NEY GENERAL
OF TEAxAS
Au~-~INII.%%~~A&
'ACi*;"N*:RB‘.ARK
rlT,,Mx~-GlcXP-HAL.
&ber 30,, &a 1:
_,~ ,. ,~
Honorable Joe Reeweber C&Ion ‘No. C-340
County Attorney ,, ~ c
Harrle County Re: .Whether the interferenoe
Houston, Texas with riparlan: rights of access
by oonlstructlon of a highway
bridge with a fender ayatem in
a navigable sIzeam constitutes
a te+klmg of prop,erty within the
mean$ng 0S Article I, Sec. 17,
Dear Mr. Reaweber: Coaetitution of Texaa.~
You have requested an opinion fllom this offiob on the
following matter:
Whether the lnterferenoe with rlparlan rights of
access by conptruction of a highway bridge with a
fender system in a ntivlgable ntrsam uonstltutes a
taking of property within the meaning of Article I,
Sectfon 17, Constitution of ‘Ihxas.
Your opinion request and cubsequent aorrespondence haa
shown that the State Highway Department has constructed a
rolling lift bridge (draw bridge) with’s fender ayatem in
Clear Creek, a navigable stream. ”‘19re Sender systim ccnmiats
of pilings whloh are conneated by heavy timber8 and la entirely
free of the bridge aonatruatlon. Thle~ 6yetem keeps ships In
the dredged part oft the channel, keeping them~%n a straight
passage and keeping them from beaohing or hlttlag the bridge
piers. The diagram you enclosed with your oorre~pondence also
shows that blinking lights are attached IXJ the fender spatem.
The north fender system uhlah doe8 ‘mot toaeh the shoreline,
aeema to be the fender that IS the baai OS this OplnlOn re-
quest, In that it might deny amem! to tlu water oompletely or
aubstantlally,mstr~ct aooees~af tbe .riper%u owner who 0-s
the land next to, the right ,of way of State Highway 146. Ib
thirr case Umfender system war wJwl&y oonrtrwted within the
bed of the stream.
In Btotz v. E&d, 116 Tax. s;, ,peti
,s.w..&a8 (19It6),the
SupremeCourt h ld fiat it *rr) wlWout dUpu9e~that the State
owna the bed 6f’navigtible rtr&&aii%eU IS N&e waters which
flow therein and are to be oomkvoUad &&umd of by the
State for ,thebeet %ntereet of ,Bha . klge Cureton 8tated:
Honorable Joe Resweber, page 2, Opinion No. C-340
II
. . . The waters are in trust for the public:
First, for navigation purposes, which concerns all
the public and is ordinarily regarded as a superior
right; second, the riljarianwaters of the stream
are held in trust by the state for the ~riparian
owners along its margins; . . .I’
,“,
::
pi:
,:,,:’ .-,,<1
:.yI “,, ,.~‘~~
>,,,.,.:
The Supreme iourt ‘in ‘an earlier opinion Se1man.i i.vv,
W o.lfe
,‘~
27 Tex. 68 (x363), held’.thatnav’igablestrea& within the’ “‘
State are public.highwaysand are exclusively subject to the
controlsof the ‘Sttite.,’
‘:.:,;::
>I’:
,‘, , ^;;
‘The,Must i:n-,.~C~c~agoi::R..,E.
:& G. Ry. Co. v. Tarrant Co.
Water Control,,,eto..,,12,3 ,Teki 432, 73 S.W.2d 55 (1934) at page
70 stated:
.~, ,,,.,’
“Dfi7 The authorities also appear to be uniform
.in,
holding’:
that:.&ons@uential damagesi ineLdenE to ;!
navigation improvements must be borne by Vhe party
affected, and not by the government. . . .”
The s’ame Count ,in‘~BxazosRiver Auth.orityv..City of Gra-
@, 163 Tex. 167,, 354 S&W .2d 99 (1961),:held at page’131’:
!..
“The petitioner repeats that th,isIs :a”dase of ‘,
damnum absque injuria. A number of authorities are
cited as supporting!th1.sposition. ,There Is in the
law rela~ting.,to,
waters~a~class ,ofcases which hold.
that,certain.:injuries, to land caused,by artificial
changes in the channelof a stream.i.naid :ofnaviga-
tion.orthe .eonstruqtion of revetment works designed~
to prevent .eroslon bytwater are noncompensable. The
true basis of the holdings ofthe.naviga;ion cases
seems to restin the police power.~ i : .
,_ ,:’ ‘,..:
The UnLted StatesSupreme Court”in Scranton v. Whe,eler ,’
179 U.S. l&l (1900);:~concernimg~ a pier constructed by the
governme,ntin a-,canal,stated:;.
‘~ ‘, -, .,
“If the ripa,rla,n,
owner dannot enjoy access :to
navigability,be,,cause ‘of.the ,improvement:
4f haviga- : :’
tion by the eonatructlbn,,:away..fromthe;.shoreline of
works in a public navigable river or water,:and if
such right of access ceases alone for that reason
to be of value, thereis,.@, within the::mea,ning
:of’
the Cons,tit&ioq,a ta~klngof,pr$vate property ;for
public .use.ibut?:onXv a -,.e,orrse~uentia1:.:,i~.l~rv’
to a’ ,,
Honorable Joe Resweber, page 3, Opinion RQ. C-340
public'--an injury resulting incidentally from the
exercise of a governmental power for the benefit of
the general public, and from which no duty arises
to make or secure compensation to the riparian
owner." (Underlining added.)
2 Nichols on Eminent Domain, (3rd Ed.) on page 251 states:
II. . . The United States or a state ma,yeven con-
struct works in aid of navigation in the bed of a
navigable watercourse which wholly cuts off access
from the riparian land to the water without any
obligation to make compensation arising. . . .
'The reason for the immunity of the public author-
ities from liability to make compensation, when pri-
vate property is invaded or valuable riparian rights
destroyed by the construction of works in aid,;of
navigation, is not based upon the fact that such in-
jury is not severe enough to constitute a taking,
but that it is an exercise of the public easement,
and a use by the public of the public domain. There
are no private rights in navigable watersthat are
not held subject to the public easement or which
conflict with or encroach upon the rights of the
public in respect to navigation."
See also 65 C.J.S. 157, Navigable Waters, Sec. 67~.
Based upon the above authorities, it is our opinion that
the State can construct a highway bridge with a fender system
in a navigable stream on the submerged land and that a landowner
has no such right under the Constitution that would entitle him
to be compensated for any loss of access from his upland to the
body of water in question, resulting from the erection and
maintenance of the fender system by the State of Texas, in order
to improve the navigation of a public naviga,blewaterway.
SUMMARY
The interference with riparian rights of access
by construction of a highway bridge with a fender
system in a navigable stream, which is in aid of
navigation, is not a taking of property within the
meaning of Article I, Sec. 17, Constitution of Texas.
1613
Honorable Joe Resweber, page 4, Opinion No. C-340
Yours very truly,
WAGGONER CARR
Attorney General of Texas
BY
CHARLES R. LINq
Assistant'Attorney General
CRL:da
APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
Arthur Sandlin
Milton Richardson
Bill Osborn
Pat Bailey
APPROVED FOR THE ATTORNEY GENERAL
By: Roger Tyler