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 Ten. 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


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