Untitled Texas Attorney General Opinion ( 1939 )

.hlr.D. W. Porter
Chief Engineer
Department ,of Agriculture
Austin, Texas
Opinion No. O-156
Re: What Constitutes a Navigable
Dear Mr. Porter: State Owned Stream in Texas.
This acknowledges receipt of and is in reply to
your letter of January 16, 1939, in which you req.~est an
opinion on the extent of open waters on the Guadalupe
River in Kerr County, and an opinion as to what the min-
imum length of such areas must be in order for the same
to constitute a State owned stream.
In your letter you state that the cut banks of
the stream in question are from 50 to.100 feet apart and
that there are a number of areas in the stream containing
holes of water 50 to 100 feet in width and from one-fourth
to one mile in length, but that in many portions of the
stream the holes of water are only 10 to 15 feet wide and
in some instances narrow enough to step across.
By Statute, Article 5302, R.C.S., the State of
Texas defines a navigable stream as follows:
"All streams so far as they retain an average
width of 30 feet, from the mouth up, shall be con-
sidered navigable streams within the meaning hereof."
In writing this opinion we assume that the
average width of the bed of the stream in question, from
the mouth up, is at least 30 feet. The term "Bed of a
Stream" has been defined by the Texas courts as follows:
The bed of a stream is that portion of its
soil which is alternately covered and left bare as
there ma7 be an Increase or diminution in the supply
of water, and,whiah is adequate to contain it at its
average and mean state during sn entire year, without
reference to the extra freshets of the winter or
spring of the extreme drouths of the summer or autumn."
Mr. D. W. Porter, February 6, 1939, page 2, O-156
Mot1 v. Boyd, 286 S.W. 458.
If the bed of the stream to wilS.chyou refer re-
tains an average widthfrom the mouth up of at least 30
feet, then such stream is a navigable stream, and the title
thereto is owned by the State of Texas whether or not such
stream is navigable in fact end whether or not the flow of
waters in such stream in ordinary seasons is less than 30
feet. State vs. Bradford, 56 S.W. (2) 1065.
The fact that the stream in question does not
have a continuous current of water is immaterial, provided,
however, that the stream be such that rain, springs, or
other sources of water supply will, at recurring intervals,
produce a flow of water, and provided that such conditions
recur with some degree of regularity so that they establish
and maintain a running stream for considerable periods of
time though such periods are intermittent and brief. Hoers
vs. ihort, 273 S.W. 785.
It has been held, withrespect to the North Fork
of the Red River in Texas, that such stream is a navigable,
state owned stream, notwithstanding the fact that there is
no permanent flowing water on the surface of the bed of such
stream, and although such stream had no springs or sources
of water other than rain fall, such rain fall coming but
occasionally, and although the water in such stream ran in
a current for only one to ten hours after every substantial
rain, and no more frequently than four or five times a year,
the water thereafter standing in holes from 10 to 20 days,
where it is also shown that the distance from cut bank to
cut bank, from the mouth up, was at least 30 feet. State
vs. Bradford, 56 S.M. (2) 1065; Heard vs. Town of Rem,
103 S.W. (2) 728.
In the light of the statute and decisions quoted
from above we answer your inquiry as follows:
If the Guadalupe River in Kerr County retains an
average width from cut bank to cut bank, from the mouth up,
of at least 30 feet, and if suoh river has a permanent but
not necessarily continuous source of water supply, which
water when flowing is retained in a well defined channel,
then such river, insofar as it retains such characteristics,
is a navigable, state owned stream.
You, of course, will understand that before we
can ?ender >(A:,
a definite, unconditional opinion upon
whether or not the Guadalupe River in Kerr County is or is
not a navigable, state owned stream, it will be necessary
for you to furnish us with specific facts and figures with
reference to the average width of the bed of such stream,
Mr. D. W. Porter, February 6, 1939, Page 3,~ O-156
the frequency with which it contains flowing waters, the
source of its water supply, the aondition of its channel,
and suoh other data which is relevant to the determination
of the character of the area in question. If this opinion
is not suffioient for your purposes we shall be glad to
amplify it upon receiving from you the specific facts and
figures referred to.
Yours very truly
ATTORNEY GENERAL OF TEXAS
s/ Robert E. Kepke
BY
Robert E. Kepke
Assistalh
REK:LM-ag
APPROVED:
S/ Gerald C. Mann
ATTORNEY GENERAL OF TEXAS