Untitled Texas Attorney General Opinion ( 1956 )

Honorable Dawson Bryant
County Attorney
Sayton, Texas
Opinion No. 3-208
Re : Right of member of the general
public to walk, for ffshing
purposes, in a river bed, title
to which ha8 been relinquished
under the Small Bill (Art, %14a,
‘V.C.S. )
Dear Mr. Bryant :
Your letter states the following facta:
“The Salt Fork of the Brazos River in
Kent County is a navigable stream, a8 that
word ia defined In Art. 5302, RCS,al.though
it is non-navlgable in ~fact. The Salt Fork
la not a dry stream but flowa a small stream
of rater during the drteut month6 of the year.
Praotlcally all the original eurvey lines of
the Patent6 and Awards either cros8 or partly
oroBB the bed of such river efid therefore
would oome under the provisions of the ‘Small
Act, i Article 5414a, RCS. There are Several
large ranches in Kent County that are croeaed
by the Salt Fork of the Brazes River. The
ownem of such ranches have their ranches
enclolred with substantial fences and are using
the river bed and the land lying on both sides
thereof for the purposes of raising cattle.’
The owners maintain water gaps across the
river bed at the places that the river entera
and exit& from their particular ranch.”
You ask the following question;
t’Cen the general punblic enter such en-
closed lands and walk down the bed of the
Honorable Dawson Bryant - page 2 (S-208)
river, either on the dry bed or In the
water, for several miles and seine for
mlnnowa and fish In the water-holes lo-
cated In such river bed against the
owner’s wishes?”
You further request our opinion as’ to whether
or not such conduct would violate Article 137'7,Vernon’s
Penal Code,
Under civil law arants made Drlor to the Act
of 1837, the beds of all perennial streams belong to the
State, PcCurdy v, Morgan, 265 S.W.2d 269 (Tex. Clv. App,
1954. error ref.). From your description, the stream
ln~q~eatlon is a.perennial stream. This bwnership of
the bed in the vublic carried with it under the civil
law the right tb u6e the banks ~for such things as hunt-
Oranta made since the 1837 Act are g,overned by
the 30-foot navigability rule, Article 5302, Vernon’s
Civil Statutes, The beds of navigable streams as there
defined, adjoining grants made after 1837, are owned b
the State. flanry v. Robison, 122 Tear. 213, 56 SIWo2d t38,
446 (19x), Grants made since 1840 are governed by the
common law, under which the boundary between public
and rlparlan ownership is fixed at a point In the cut
bank known aa the “gradient boundaryo” Unlike under the
civil law, the pub110 may not as to common law grants go
beyond this line ‘and use the banks for flshlnn. CamDinR.
-2d__Ij41;-.-~~~-~..
etc. niveralon Lake Club V~ Heath, 126 Tenn. 129, 86 S;$.
447 (-Em H the court specifically left
open the question a’s ty?zrbight to use of the banks by
cbmmeroial navigators “in emergenoy, or in other circum-
stances.” Page 447? 4
By 9 tatute s the waters of every Texas stream
7467, V.CoSe) aa well as the fish therein (Art.
are public property, The law la not clear as to
the right to fish In public waters over private landa.
In thepivers’ion Lake Club case, supra, fishermen
launched their boat from a Levi public bridge and steered
their way into a lake, the outer portions of which were
Honorable Dawson Bryant - page 3 (S-208)
over submerged private lands. The Supreme Court said at
page 443:
“The general rule is well established
by the authorities that the right to fish
in a stream, whether belonging to the public
in common or exclusively to the owners of
the land bordering the stream, 15 determined
by the ownership of the bed."
However, at page 446, the court said that the fishermen
could fish over these private lands because, though the
bed was private, the waters were public.
In.Taylor Fishing Club v. Hammett, 88 S.W.2d 127
(Tex.Civ.App.1935, error dism.), ft was held that the bed
6f a non-navigable lake belonged to the riparlan landowneD
and that a neighbor fisherman had no right to cross the
boundary line Into the lake by boat. The court cited the
Diversion Lake Club case for the proposition that owner-
ship of the bed determined the right to fish. For a
similar holding, see Fisher v. Barber, 21 S.W.2d 569 (Tex.
CIv.APP.1929). And It has been held that, despite public
ownership of fish in streams, a person has no right to
cross private lands to get to a fishin spot. Reed v,
State, 175 S.W:2d 473 (Tex,Clv.App. 19 &3); Smith v.
(iodart, 2% S.W. 211 (Tex.Clv.APP. 1927).
In State v. Bradford,121 Tex.515, 50 S.W.2d 1065,
1077 (1932). the court said that the reservation of waters
of at&ams’to the public implies “all things necessary
to the practicable and substantial use of and enjoyment of
the things reserved,” and that a liberal conetructlon of
the reservation In behalf of the public ie required. The
court further said that “nothing short of express and
positive language can suffice to evidence the Intention
to grant exclusive private prlvlleges or rights in that
held for the common use and benefit.” To the same effect
see Qtate v Grubstake Inv. Assoc.,~supraj Anderson vI
&&, 117 TGX, 73, 297 S.W. 219, 223.
Thii Small Bill (Art. 5414a, V.C,S. provides
ior the relinquishment by the State to ripar 1 an owners
of certain, stream beds crossed or partly crossed by orl-
gfnal ,,land’grants and awards. The Act specifically provldea
it shall not “Impair the rights of the general public and
the gtate in the:waterS'of streams. . . .' Attention iS
Honomb~e Mwson Bryant - pap 4 (a-208)
*.
.:
. . also called to ttn fact that the &nell Bill 18 not eppli-
. cable to mllnqulah any nwmber of acres of rti%am bad in
excesu of the number convelad tn the orfainbl CWants,
) ~256 s.w;26 io16, 10261 ‘+4dlr.APP*
.
loo re8erv8m the State ‘0 r L hte to ainsraltI
ravel in tM bedr of navlwble streame.
i
In Jtato v. BradforQ, auprm, at p* 1076, the court
said:
Xt ie quite plain that the Lagis-
latcu**wi~~ Zhe enaatm8nt of the 8mall Bill did
not intend to grant unto the patentee8 or
awerdeen and their ansignses an absolute title
to the land dercribed In their pbtbnts or
award8 under navigable w8 tern ,a The provisiona
of the 5mall Bill recognisc a\1
thore rlght8
to whlah the beds of sta,tutory navlgablc 8txQtsms
or water coumea had been theretofore mserved
under the publla policy and lewe of thl8 State,"
clearly, under the 6cyfe.Ggmm
if the undisputed and “abrol
stream belonged to the rlparian, tihe public woula have no
firhing right8 therein, Hawever, in view of tha sp8clfic
provision in the Small Bill that t~he Acrt shall not wimpair
I
the rlghta of the general publfc and the Stat,e in the
water8 of streemr. . a ,” in vfew of the language in the
1 g-adforg ca8e. eupra, that reservation of tbn watera of
etreame in the publia lmpliee “all thing8 nsoassary to the
practloable and aubrtantlal u8e of and enjoyment of the
things reecrved ,” and in view of the Purther holding in the
ease that a liberal aonrtructlon ot euoh ra@aPv8-
$wP s required, we feel oonat~ained to bold that the
Small Bill left undisturbed 8uch rtghte a8 the public
theretofore had to nelk for fishing purposes in the dry
or 8ubnWged bedr of ltr~mU~ The dmall Bill dose not
contein Duch *expm88 and positive language’ a8 will BUi-
fice to take away euah right8 from the publlo,
The portion of Article 1377 material to our
inquiry Is a8 follow8 0,
.. *It shall be unlawful for any perron to
enkc upon the inolO88d lend of another with-
out aon8ent of the owner, proprietor or agbnt
. .
Honorable Dawson Bryant - page 5 (S-208)
In charge thereof, and therein hunt with
firearms or therein catch or take or attempt
to catch or take any fls'n from any pond,
lake, tank, or stream, or therein camp, or
in any manner depredate upon the same+ By
'Inclosed lands' is meant such lands as are
in use for agriculture or grazing purposes
or for any other purpose, and lncloeed by
any structure for fencing either of wood or
iron or combination thereof, or wood and
wire, or partly by water or stream, canyon,
brush, rock or rocks, bluffs, or island. . . ,'
The above article prescribes a criminal penalty
for a certain type of trespassing. Use of the bed of the
stream would not be a trespass if the person has a right
to use same as an incident to the right to fish. We are
of the opinion that Article 1377 was not intended to
apply to a situation where the entry was otherwise law-
ful, i.e., not a civil trespass.
As we Interpret this Act, it convert3 into a
crime an improper entry on private premlaes, upon "land
of another without consent of the owner," Here the ri-
parlan is not such an "owner", as heretofore pointed out,
of the bed of the stream as would give him the right to
Its exclusive use. Such penal statute, therefore, IS
not applicable, However, a member of the public would
not have the right In going to and from a stream to cross
over private land in which no public rlghta obtained under
the civil or common law.
we answer your quoted question in the afflrma-
tlve and hold that the conduct in question does not vio-
late Article 1377.
SUMMARY
The general public is authorized to
&elk o&nthei:dry'or submerged beds of a
river wtilch Is privately ,owned by virtue
of the Small Bill (Article 5414a, V.C*S.)
. .
Honcrable Dawaon Bryant, page 6 (S-208)
for the purpose of seining end fishing
In water holes In the bed of the river,
This Is true even though the rlver
passes through land fenced in on both
sides of the river, the owner maintaln-
lng water gaps acroaa the river bed
where the river enters and exits from
his land. Such conduct by the public
does not violate ArtiClO 1377, Y.P,C.
yours very truly,
JOHN BEN SHEPPERD
Attorney tinera
APPROVED:
Mary K, Wall
Reviewer
Burnell Waldrep
Re vlewe r
w- V. Ueppert
Reviewer
'L. w, Gray
Special Reviewer
Davis Grant
First Assistant
John Ben Shepperd
Attorney Qeneral
JAS:bt
,’