Untitled Texas Attorney General Opinion ( 1945 )

,’
,'Nonorable'RayWinder
:County~Attorney
C,ookeCounty
Gainesville.Texas
DearSIr: opinion NO. o-6579-
Re: Whether that part of ~:gil;e
Texoma,into which Bl.ckory
Creek flows is "a public
body of surface water (3f
this State','within the
meaning of Article @8b,
Vernon'8 Annotated Penal
'Code, prohibiting pcllu-
tion of public bodies cf
surface'water.
This will acknowledge receipt of your letter dated
May 9, 1945, requesting fan opinion of this department which
reads in part as follows:
,"
Reference is had to Article 698b, Penal Code
of the State of Texas, on the subjeot of pollution
of public bodies of surface water in Texas.
II
. . . .
%ickory Creek is situated in the Walnut Bend
Oil Field area of Cooke County. It ia a small creek:
often dry, but when it ,rains there is sometimes con-
siderable water flowing through it. This creek flows
into Texoma Lake and I understand this Lake is owned
by the Federal Government. There is no stream or
other body of water flowing into Hickory Creek, but
as aforesaid, Hickory Creek flows into said La'ke
Texoma.
"In view of thendefinition of 'public body of
surface water of this State', set forth In Sec. 3 c;f
aaid~Act, and the fact that Hickory Creek is
not subject to overflow from or into a stream,
which Is the property of the State of Texas
or any subdivision thereof, and due to the
fa~ctthat said Hickory Creek overflows into
- ..
Honorable Ray Winder, page 2 (0-6579)
Lake Texoma, which is understood to be the
property of the United States and not the'
property of the State of Texas or any subdlvi-
sion thereof, your opinion Is desired as to
whether pollution of Hickory Creek is an
offense under said law.
"In this connection your attention Is in-
vited to Article ,4444,Revised Civil Statutes
of Texas, authorizlnp injunction against per-
sons, corporations, etc., to prevent further
polluting of public waters.
"It la the opinion of the writer that by
reason of the peculiar wording of Sec. 3, Arti-
cle 698b, Penal Code, no offense is committed
by reason of the pollution of Hickory Creek in
Cooke County, and that the only remedy available
for such pollution in this particular case is by
injunction under the provisions of Article 4444,
Revised Civil Statutes, which the case of Goldsmith
& Powell vs. State, 159 S.W. (2) 534, error refused,
holds may be granted without a prior conviction
under the Criminal Statute.
II
. . . *II
Article 698b, Vernon's Annotated Penal Code, reads
in part as follows:
II
. . . .
"'Sec. 2. 'Pollute' is hereby defined to be
the throwing, discharging, or otherwise permitting
to reach or to be introduced into any public body
of surface water of this State any substance,
material or thing In such 'quantitythat the said
water is thereby rendered unfit for one or more
of the beneficial uses for which such water was
fit or suitable prior to the introduction of
such substance, material or thing, or is thereby
rendered harmful to public health, game birds,
or game animals, fish or other edible aquatic
animals, or endangers any wharf, or endangers or
hinders the operation of any boat, or renders in-
sanitary or unclean any bathing beach.
Honorable Ray Winder, page 3 (0-6579)
“Sec. 3. The term 'public body of surface
water of this State' shall Include all surface
creeks, rivers, streams, bayous, lagoons, lake?
and bodies of surface wrtersthat are fed by a
stream or.are subject to overflow from or into
a stream which are the property of the State of
Texas or any subdivision thereof, and all por-
tions of the Gulf of Mexico within the gulfward
boundary of the State of Texas and all inland
waters of the State of Texas in which the tide
ebbs and flows . . . .'
We usually accept the facts stated in an opinion
request as the basis of our opinion. However, as a consti-
tutional officer, the Attorney General, like the Courts, is
bound to take notice of the territorial extent of the juris-
diction exercised by the government whose laws he administers.
Accordingly, we must inquire into your statement that Lake
Texoma "is owned by the Federal Government". Since the United
States is a sovereign, the extent of the territorial jurisdic-
tion of Texas is involved in the question.
We accept your statement "that Hickory Creek is not
subject to overflow from or into a stream, which is the prop-
erty of the State of Texas or any subdivision thereof." Sec-
tion 3 of Arbicle 698b provides, however, that "The term
'public body of surface water of this State' shall include all
... lakes ...that are fed by a stream or are subject to over-
flow from ...a stream which are the property of the State of
Texas .....'I This statute does not provide that the "lakes"
be "the property of the State of Texas" but merely that the
stream which flows into the lake be "the property of the State
of Texas." However, if Texas has no jurisdiction over that
part of Lake Texoma into which Hickory Creek i'lowsand if that
part of the Lake is,exclusivelg within the jurisdiction of the
United States, the:$ower of Texas to denominate such a lake
a "public ,body of surface water of this State" might well be
questioned. Your opinion request, therefore, raises two
questions: first, whether or not Kickory Creek, as a stream, is
"the property of the State of Texas" and second,whether or not
that part of Lake Texoma into which Hickory Creek flows is a
public body of surface water of this State."
In passing on the first question, it is not necessary
to determine who owns the bed of Hickory Creek. If that
stream has an average widt=f 30 feet from its mouth up to any
given point, such portion of the bed of the stream is the
property of the State of Texas. Article 5302, V. A. C. S.
34 Texas Jurisprudence 86. The State's ownership of the bed
of statutory navigable streams which are crossed by the lines
Honorable Ray winder, page 4 (O-6579)
of the original survey, was relinquished by Article 5414a
V. A. C. S. to the extent necessary to make up the acreage
called for in the original grant or patent. State vs. Brad-
ford, 121 Tex. 515, 50 S. W. (26) 1065; Heard vs. Town of
Refugio, 129 Tex. 349, 103 9. W. (2d) 728. But regardless of
who owns the bed of Hickory Creek, we are of the opinion that
the waters of the creek are the property of the State.
Article 7467, V. A. C. S. provides In part:
"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 ofevery river or natural
stream, canyon, ravine, depression or watershed, wlthin
the State of Texas, are hereby declared to be the prop-
erty of the State, and the right to the use thereof may
be acquired by appropriation in the manner and for the
uses and purposes hereinafter provided, and may be taken
or divertea fromits natural channel for any of the pur-
poses expressed in this chapter. . . .'
In construing this statute, the Supreme Court in
Turner vs. Big Lake Oil Co., 128 Tex. 155, 96 S. W. (2d)
221, at page 228 said:
"The contention here is that this article,
particularly the italicized words, makes the
water from rainfall while on the watershed, or
in ravines and draws, and while it is still
regarded in law and fact as surface water, and
before it has reached a riparlan or public
stream. public waters, the pollution of which
is prohibited by positive enactment.
"The statute is capable of this construction
if it alone were to be looked to for its meaning.
It must he interpreted, however, in the light of
the Constitution and of the common law and Mexican
Civil law under which lands have been granted %n
this State. Miller v. Letzerich, 121 Tex. 248,
49 S. W. (2d) 404, 85 A.L.R. 451.
'bnder both the common law and the Mexican
civil law, the owners of the soil on whichrains
may fall and the surface waters gather are the
proprie'torsof the water so 1.ongas it remains On
their land, and prior to it? passage into a natural
water course to which riparian rights may attach.
Farnham on Water Rights, vol. 3 .!883, and cases
Honorable Ray Winder, page 5 (O-6579)
cited in the note; Miller v. Letzrich, 121 Tex. 248, 254 256,
49 S. W. (2d) 404, 85 A.L.R. 451; Hall's Mexican Law (1865)
p. 402, 8 1372.
.
"No citation of authority is necessary to demonstrate
that the right of a laridownerto the rainwater which falls on his
land is a property right which vested In him when the grant was
made. Being a property right, the Legislature is without power
to take it from him or to declare it public property and subject
by appropriation or otherwise to the use of another. This Is
so regardless of the question as to whether the grant was made by
Texas or Mexico. Miller v. Letzerich, 121 Tex. 248, 49 5. W.
(2d) 404, 85 A. L. R. 451. . a”
You have not given us many facts as to Hickory Creek but
from the facts that you give us we believe that under Texas decisions
it is clearly "a natural water course to which riparian rights
mav attach." 44 Tex. Jur. 14. 17. Miller vs. Letzerich. 121 Tex.
~?&, 49 S. W. (26)~404, 85 AiL.R'.451; Mot1 v. Boyd, llj Tex. 82,
286 S.W. 458. Hoefs,V. Short, 114 Texi.501, 273 S.W. 785. 40
A. L. R. 833;*International Gieat Horthern &. &. vs. Reagan, 121
Tex.'233, 49 S. W.,(2d) 414. In Hoefs vs. Short, suprattthe
Supreme Court held that Barilla Creek In Reeves County is a stream
to which lrrigable rights attach." The Court in that case said:
$1. . . .
"These authorities and others which follow show that,
while the rule as ordinarily expressed is that a water course
must have a well-defined channel, bed, and banks, yet there
may be instances where these are slight, imperceptible, or
absent, and still a water course exist.
"All authorites agree that a current of water Is
necessary, yet the flow of water need not be continuous, and
the stream may be dry for long perj~ods9f time. Authorities
. 1 K nney on Irrigation B 307; Angel1 on Water Courses
4 4, 27 Ruling Case Law, pp 1063, 1066, 1067.
::t"t;aid.)
"Mr. Kinney, in the text cited (section 307), says:
'Those who are acquainted with the streams and water
courses of the arid Roclq Mountain region of this country,
draining as they do to steep, mountainous areas, with their
swift currents running over gravelly and rocky bottoms, know
that often in the dry summer months many of them are entirely
drg, at least upon the surface. All of them, nevertheless,
have well-defined beds, channels, banks, and currents of water,
at least the greater portion of the year, and are In every
regpect water courses to which water rights may
Honorable Ray Winder, page 6 (O-6579)
attach. But it would be plainly impracticable in
this western part of the countr::to require that,
in order to constitute a water course upon which
rights may attach, there must be a continuous, un-
interrupted, and perennial flow of water during
the entire year, and from year to year. Hence the
requirement of the law is that In order to consti-
tute a water course the stream need not flow all of
the time.'
"The general rule is that ravines, swales,
sloughs, swamps and marshes are not water courses,
and yet they are sometimfe.
"Again, it is sometimes said that, in order
to constitute a water course, there must be some-
thing more than mere surface drainage over the
entire face of a tract of land, occasioned by
unusual freshets or other extraordinary causer.
The authorities say that this is true in its
strict sense, but that surface water may collect
from such a large drainage area and be so con-
tinuous in its flow as to constitute s water
course. 1 Kinney on Irrigation, 3 306, 312, 314,
315, 317; 27 Ruling Case zaw, p. 1063. . . .'
It it a fact question as to whether Hickory Creek is
a "natural stream" within the meaning of Article 7467 and this
can be determined as a matter of law by proof of the extent of
the water shed it serves, the character of its bed and banks,
the length -nd width of the stream and the volume and frequency
of its flow. The court? will take judicial knowledge of as
many of these facts of the natural features of the State as it
can obtain from reliable hourcez but it is well to make such
facts readily accessible by proving them in the trial. Hoers
vs. Short, aupra, International Great Northern R. Co. vs.
Reagan, eupra.
In Goldsmith & Powell, et al, vs. State, 159 S. W.
(2d) 534, cited in your opinion request, the court said:
"The waters of all natural streams of this
State and of all fish and other aquatic life con-
tained in fresh water rivers, creeks, streams and
lakes, or sloughs subject to overflow from rivers
or other streams within the borders of this State,
are declared to be the property of the State; and
the Game, Fish and Oyster Commissioner has juris-
diction over and control of such rivers and
aquatic life. Arts. 4026 and 7467 R.C.S. The owner-
ship is in trust for the people (Hoefe v. Short, 114
Honorable Ray Winder, page 7 (O-6579)
i.:
Tex. 501, 273 S.W. 785, 40 A.L.R. 833); and pollu-
tion of streams and water cour3e3 Is condemned by
both the civil statute@. Art. 4444 and Vernon'e
Annotated Penal Code Prta. 697, 698, and Art.
The Constitution of Texae Art. 16
@zEz: Vernon'3 Ann. St deaLgnater(ki:rlvers
and
rtrenm3 a3 natural re3Zrce3, declare3 that such
belong to the State, and expressly invests the
Legislature with the preservation and coneervation
of 3uch resources . . ."
We, therefore, conclude that the water3 of Rlckorg
Creek are "property of the State of Texas" m the meaning '
of Section 3 of Article 698a, V. A. P. C.
The second question Involved in your inquiry is
whether or not that part of Lake Texoma into which Hickory
Creek flow3 is a "public body of surface water of this State."
We 3re concerned here with the question of the territorial
limLt3 of the State ?nd if any part of Lake Texoma is subject
to the political jurisdiction of Texas, whether or not that
part of the lake 13 navigable in fact.
In Oklahoma vs. Texas, 258 u. s. 574, 42 sup. ct.
406, 66 L. Ed. 771, the Supreme Court held that no part of
Red River in Oklahoma is navigable in fact and a3 a ncn-navlga-
ble 3tream the ownership of the bed remained in the UnFted State3
qnd did not pa33 to the State of Oklahoma upon the admlssion
of thatState into the union, on November 16, 1907. In other
opinion3 In the 3ame ca3e the Supreme Court fixed the boundary
cf Texa3 a3 the foot of the Texas Bluff3 on the South bank of
Red River or on and along the cut bank of the river on the
south side "at the mean level of the water when it waahea the
bank without overflowing it." 252 U.S. 372, 40 Sup. Ct. 353,
64 L. Ed. 619, 260 U.S. 606, 43 Sup. Ct. 221, 67 L. Ed. 426.
The North boundary of Texa~awa3 fixed and marked pureuant to
the aeveral decision3 rendered in Oklahoma v3. Texas and such
boundary ia the present boundary of Texas. Texas atill ha3
jurizdiction over that part of Lake Texoma within it3 pre3ent
boundaries, unlese it ha3 loat it3 jurisdiction by a deed of
c?aaion to the United States.
When the Federal Government constructed the dam at
Denison, the water3 of Red River which were impounded by the
dam covered the line which had been marked a3 the boundary of
Texaz . When the water3 of Lake Texoma reach the spillw3y, (an
elevation of 640 feet) they will inundate 41,000 acre3 of land
in Texas, Hickory Creek 1.nCooke County flow3 into this part
of the Lake. Our inquiry here Is whether thl.3part of Lake
Texoma i.3 part of the State of Texas and subject to its pollti-
Honorable Rag Winder, page 8 (o-6579)
cal jurisdiction.
The case of Curry va. State, 12 9. W. (2d) 796 is
declcive of thle question no far aa your inquiry la concerned.
In that case, the appellant wa3 convicted of the offense of
unlawfully seining within certain prohibited water3 in Nueces
County. It was shown that the offense wa3 committed within
the United State3 reservation at Port Aranaa3, Texas. "This
land on the date of the alleged offense wa3 shown to be a United
State3 Military reservation, in use a3 such and being in the
actual custody and control of the War Department of the United
States Government." In a well reasoned opinion the Court of
Criminal Appeal3 affirmed the conviction and held that Texas had
nearerlost jurisdiction over the land 3Ftuated in the reservir-
tlon. The Court pointed out that "there is neither constitu-
tional nor statutory inhibition again3t ownership of land by
the United State3 government Fn Texas" but it held that the
only mean3 by which the United State3 government could acquire
constitutional jurisdiction over the land 30 acquired, to the
exclusion of Texas jurisdiction, wa.sby procuring a deed of
cession from the Governor of Texas, pursuant to Article 5247
V.A .c.s. The court in that case took judicial notice of the
fact that no deed or ceasion had been made to the land included
in the United State3 re3ervation at Port Aranaaa.
We have examined the record3 of the office of the
Secretary of State and fFnd no deed of cession to the land in
Texas which ie presently covered by the water3 of Lake Texoma.
That part of the Lake i3 therefore at111 subject to the jurla-
diction of the State of Texa3. Fort Leavenworth R. Co. vc. bwe,
114 U.S. 525. 5 Sup. Ct. 995, 29 L. Ed. 264, Surplus Trading
Company vs. Cook, 309 U.S. 104, 60 s. ct. 436, 84 L. Ed. 603.
There 3till remain3 the question of whether or not that
part of Lake Texoma which ia subject to the political jurirdic-
tlon of Texas 13 "a public body of surface water". In Texas,
the question of whether a lake is a public or private body of
water is determined by whether or not it ia navigable in fact.
Welder v3. State, 196 S.W. 868, error refused; Taglor~Fish-
ing Club vs. Hammett, 88 5. W. (2d) 127, error diamizsed.
This is the rule at common law and the rule with reference to
public waters of the United States. United State3 v3. Halt
State Bank, 270 u. S. 49, 46 sup. Ct. 197, 70 I,.Ed. 465;
yr;in ;J~ Jordan, 140 0. 9. 371, 11 5. ct. 808, 838; 35
. . . From the data available to us it appear3 that the
reservoir of Lake Texoma ia the 3ixth large3t In the Unlted
State3 and V& the lake is full it will have Inundated 26,000
acre3 in Texas9 69,000 acre3 in Oklahoma. This total3 ap-
proximately 140 square miles. This ia based on elevation at
617 feet which i3 the normal pool. At elevation of 640 feet
Honorable Ray Winder, page 9, (O-6579)
(spillway crest), reservoir will inundate 41,000 acres in
Texas and 105,000 acres in Oklahoma for approximately 220
square milea. It appears that Lake Taxoar,is a navigable lake
in fact and In the authorities aJove cited. Welder
v3. State, aupra, nited States v3. Holt State Bank, supra.
We assume that the Federal Government has purchased
from the various owners thereof all of the land presently cov-
ered by that part of Lake Texoma which is situated in Texas.
The fact of ownership of this land In a proprietary capacity
does not, under State law, destroy the public character of the
water which overlays the land. Diversion Lake Club vs. Heath,
126 Tex. 129, S 6 S. W. (2d) 441. In that ca3e the fact3 were
that a dam was constructed across the Medina River causing the
waters of the river to form Diversion Lake which covered the
land3 owned by the Diversion Lake Club. The Club contended that
it was a private and not a public lake and that the public had
no right to fish in it. In holding that the watera of the lake
were public waters, the Supreme Court said:
"Plaintiff in error insists that, even if defend-
ant3 in error should be accorded the right to fish in
the water3 of the lake above what waz the bed of the
river, they would in no event he entitled to fish in
that part of the water above 30 much of the bed of the
1a':ea3 is owned by plaintiff in error. This position
Is untenable, because the water of the lake, notwith-
standing the fact that most of ik3 bed is privately
owned, 13 still public water. It is a part of the flood
.”
water of Medina river which the irrigation company ha3
the right to impound and divert for irrigation. The
permit acquired by the irrigatFon company carried with
it the incidental right to cotztruct and maintain the
dam and the lake. It gave no title to the water, but
nnly the right to divert and use 30 much of the water
appropriated a3 might be necessarily required when
beneficially used for the purposr for which it wa3
appropriated. R. 5. 1925, arts. 7467, 7468, 7473, 7476,
7492, 7515 and 7543; Mot1 v. Boyd, 116 Tex. 82, 125,
126, 286 S. w. 458. It gave no title to the fish in
the water of the lake, no exclusive right to take
the flab from the lake, and no right to interfere
with the public Ln their use of the river and its
water3 for navigation, fishing, and other lawful
purposes further than interference necessarily re-
sulted from the construction and maintenance of the
dams and lake3 in zuch manner a3 reasonably
to accompli3h the purpose of the appropriation.
Honorable Ray Winder, page 10 (O-6579)
"When the Irrigation company, plaintiff in
error's predecessor in title, constructed the
dam across the rLver, it caused by its voluntary
act the flood watera of the river, public waters,
to spread over the land which it had acquired,
submerping and in effect destroying a portion of
the river bed, and gFving to the public waters a
new bed. This artificial change tn 'ha river and
its bed did not affect the public nature of the
waters and did not take away the right of the
public to uze them for fishing. Dcuglaa v.
Bergland, 216 Mich. 380, 185 N.W. 819, 20 A.L.R.
197; Mendota Club v. Anderson, 101 Wia. 479, 78
N.W. 185; Pewaukee v. Savoy, 103 Wia. 271, 79 N.W.
436, 50 L.R.A. 836, 74 Am. St. Rep. 859; 27 R.C.L.
p. 1205, S 122. . . ."
There Fs no question here of any conflict between
State and Federal regulations with reference to the use of the
waters of Lake Texoma. We hold only that until a deed of cession
is made by the Governor of Texas to the United States ceding the
land in Texas covered by the waters of Lake Texoma, that such
waters constFtute a "public body of ourface water of this State."
We are, therefore, of the opinion that the pollution
of Hickory Creek Fe an offense under Article 698a, Vernon's
Ann. Penal Code.
APPROVED JUN 4, 1945 Yours very truly,
/i/ Grover Sellers ATTORNEY GENERAL OF TEXAS
ATTORNEY GENERAL OF TEXAS
APPROVED By /s/ Fagan Dickson
OPINION Fagan Dickson
COMMITmEE Asaiatant
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