                       The Attorney       General of Texas
                                   November 14, 1977
JOHN L. HILL
Attorney General


                   Honorable Henry Burkett              Opinion No. H-1090
                   Executive Director
                   Texas Parks and Wildlife             Re:    Lease of waters by
                     Department                         city   to private individ-
                   Austin, Texas 70744                  uals   for shrimp maricul-
                                                        ture   purposes.
                   Dear Mr. Burkett:

                        Your office has requested our opinion concerning
                   several general questions involving the jurisdiction of
                   the Parks and Wildlife Department regarding fish in waters
                   over privately owned beds and the legality of a grant of
                   exclusive rights of fishery. Additionally, you asked
                   specifically whether the City of Port Arthur may lease a
                   spoil disposal site to a private individual with exclusive
                   rights of fishery. We are unable to answer the general
                   questions since jurisdiction and property rights neces-
                   sarily depend upon the facts of each case and the type
                   of jurisdiction asserted.  However, the authorities which
                   bear upon these questions are discussed with reference
                   to the specific question concerning Port Arthur.

                        The property in question was sold to the city pur-
                   suant to Acts 1967, 60th Leg., ch. 206, at 452, which
                   provides in part:

                               Section 1. The City of Port Arthur,
                             being in dire need of an area for com-
                             mercial, recreational and industrial
                             development, and in order to provide a
                             spoil area to the Corps of Engineers for
                             re-working and cleaning out the Intra-
                             coastal Canal in the Sabine Lake area,
                             is hereby authorized to purchase the
                             following described lands . . . .

                               Section 2. . . . the Commissioner of
                             the General Land Office is hereby autho-
                             rized to convey to the City of Port Arthur
                             the following described lands with all oil,




                                              P. 4476
Honorable Henry Burkett   - Page 2 (H-1090)



          gas, and other minerals reserved to the
          state, along with the leasing rights as
          presently set out by current law . . . .

See Lakefront Trust, Inc. v. City of Port Arthur, 505 S.W.2d
606  (Tex:Civ. APP. -- Beaumont 1974, writ ref'd n.r.e.) (in-
volves land conveyed to the City of Port Arthur pursuant to
this statute). The subject property has been used by the
Corps of Engineers for a spoil disposal site: the Corps has
constructed a levee which separates the area from the waters
of Sabine Lake. We have been informed that the only connec-
tion with the lake waters is a drain pipe which is usually
clogged and is opened only when the Corps is dumping spoil
into the area, approximately once every three years. Thus it
appears that the waters in the spoil disposal area, while
formerly constituting a portion of Sabine Lake, are at present
generally not subject to the ebb and flow of the tide.

     It is generally held that a conveyance by the State of
the bed under navigable or public water does not, absent a
clear expression to the contrary, convey the waters or exclu-
sive riahts of fisherv: rather, the arantee takes the bed
subject-to the piscatory rights of the public. Heard v. Town
of Refuqio, 103 S.W.2d 728 (Tex. 1937); North American Dredging
co. ". Jennings, 184 S.W. 287 (Tex. Civ. App. -- Galveston 1916,
no writ).  See Carter v. Hawaii, 200 U.S. 255 (1906); Diversion
Lake Club v. Heath, 86 S.W.2d 441 (Tex. 1935); H. Farnham, The
Law of Waters and Water Riqhts 9 401 (1904). Furthermore, sec-
tion 5.021(a) of the Water-Code provides in part:

          The water of the ordinary flow, underflow,
          and the tides of every . . . lake, and of
          every bay or arm of the Gulf of Mexico . . .
          is the property of the state.

See also City of Galveston v. Mann, 143 S.W.2d 1028 (Tex. 1940).
Consequently, if the water in the spoil disposal area was navi-
gable or public at the time of the conveyance to the city, the
state retained ownership thereof, and thus of the fish therein.
Stephenson v. Wood, 34 S.W.2d 246 (Tex. 1931); Parks and Wild-
life Code § 1.011(c).

     However, in Diversion Lake Club v. Heath, supra, the court
noted that:

          The general rule is well established . . .
          that the right to fish in a stream, whether
          belonging to the public in common or ex-
          clusively to the owners of the land bordering




                          P. 4477
  .    ,




Honorable Henry Burkett   - Page 3   (H-1090)



           the stream, is determined by the ownership
           of the bed.

86 S.W.2d at 443. In that case the court apparently refused to
follow this rule with regard to navigable or public waters,
but see Fisher v. Barber, 21 S.W.2d 569 (Tex. Civ. App. --
Beaumont 1929, no writ), but it appears applicable to non-
navigable waters.  See, -,     Reed-v. State, 175 S.W.2d 473
(Tex. Civ. App. -- Eastland 19               Taylor Fishinq
Club v. Hammett, 88 S.W.2d 127 (Tex. Civ. App. -- Waco 1935,
writ dism'd); Fin & Feather Club v. Thomas, 138 S.W. 150 (Tex.
Civ. App. -- Dalas 1911) rev'd on other grounds, 171 S.W. 698
(Tex. 1914). See Henrietta Countr y Club v. Jacobs, 269 S.W.
137 (Tex. Civ.Tp.   -- Ft. Worth 1924, no writ): Arkansas Game
& Fish Comm'n v. Storthz, 29 S.W.2d 294 (Ark. 193m.    Thus if
the waters of the diswosal area were neither naviaable nor
within the ambit of section 5.021 of the Water Code, the sale
of the bed to the city carried with it the rights of fishery
in the waters over the bed.

     We have been informed that the levee which separates the
disposal area from Sabine Lake was constructed in 1968 and 1969,
subsequent to the issuance of the patent upon such lands by
the State. Thus at the time title to the bed was transferred,
the waters over the bed were subject to the ebb and flow of
the tide and were owned by the State. The question therefore
becomes one of the effect of the subsequent separation of the
waters from Sabine Lake.

     It is generally held that the ownership of lands formerly
submersed under naviqable waters and caused to become dry by
artificial means remains in the State. Lorino v. Crawford
Packing Co., 175 S.W.2d 410 (Tex. 1943); Lakefront Trust, Inc.
v. City of Port Arthur, 505 S.W.2d 606 (Tex. Civ. App. --
Beaumont 1974, writ ref'd n.r.e.). However, this rule of law
is not directly applicable to your question since the city holds
title to the submerged lands to begin with. We have discovered
no direct authority upon the question of the effect upon title
to State waters of a severance thereof by artificial means.

     In our understanding the depth of the water in the disposal
area averages 2 to 2-l/2 feet. You state that the area will "be
filled with spoil to an elevation of 12 feet in about 50 years."
Thus we are dealing with a body of water which will have de-
creasing utility to the public as it is eventually converted
to dry land. There is no question that the city will own the
land when it is no longer submerged. The legislative act which
authorized the sale specifically reserved only the mineral rights
to the land. Acts 1967, 60th Leg., ch. 206, § 2, at 452. The




                              P. 4478
                                                     ,    ,




Honorable Henry Burkett   - Page 4     (H-1090)



beds were conveyed for "commercial, recreational and industria
development, and in order to provide a spoil area to the Corps
of Engineers. . . ." Acts 1967, 60th Leg., ch. 206, 5 1, at
452. Thus the Legislature expressly authorized the severance
of a reasonable area from Sabine Lake for use as a spoil dis-
posal site and thereby acknowledged that the waters in such an
area would eventually disappear.   See Reed v. State, supra
 (holdinq that a nonnavisable lake upon lands of the State
which have been dedicated to aaricultural nurwoses was no
longer a part of the public. domain). See Senerally
                                              L      City of
Newport Beach v. Faqer, 102 P.2d 438 (Cal. Ct. App. 1940).
Accordingly, while the matter is not free of doubt due to the
lack of direct authority, in our opinion the City of Port
Arthur, under these somewhat unique circumstances, probably
obtained title to the waters in the disposal area upon the
severance thereof from the waters of Sabine Lake.

      The final issue is whether and under what circumstances
may the city lease these waters in light of their past use by
the public for fishing. It is generally held that land dedi-
cated to public use as a park may not be leased in such a
manner as to impair that use. Zachry v. City of San Antonio,
305 S.W.2d 558 (Tex. 1957); see City of Port Arthur v. Young,
37 S.W.2d 385 (Tex. Civ. App. -- Beaumont 1931, writ ref'd).
However, no person has a vested property riqht'in fish owned
bv the State: the oublic's riahts mav be restricted in the
interest of conservation.   @c&en v.&DDepu&,     209 S.W.2d 588
 (Tex. 1948); see Stephenson v. Wood, 34 S .W.2d 246 (Tex. 1931).
In Henrietta Country Club v. Jacobs, supra, the court held that
a municipality had no duty to provide public fishinq grounds
and could therefore lease-a reservoir to a private club. The
club was granted exclusive rights to the use of the reservoir
in return for its obligation to protect the purity of the water
for use as the municipal water supply. The court noted that
the actions of the lessee had in fact resulted in a cleaner
reservoir.   In the absence of authority bearing upon these
unique circumstances, we are unable to predict with certainty
whether the courts would require a public benefit as an
incident to any lease of the waters: however, it is likely
that such a benefit would be a factor in the examination of
the legality of a specific lease. See Reed v. State, supra;
Henrietta Country Club v. Jacobs, supra. Considering the
decreasing public utility of these waters, a court could well
decide that the controlled production of aquatic life would be
a proper use of these waters, especially if the public is
benefited thereby. In this respect we note that it has been
suggested that a lessee could release a significant amount of
fish life into the public waters.




                             p. 4479
Honorable Henry Burkett     - Page 5   (H-1090)



     In light of the legislative authorization for commercial
uses of the land transferred to Port Arthur, in our opinion
the city, for adequate consideration, may lease the waters
in the spoil disposal site to a private person for the con-
trolled production of aquatic life.

     Your office has also questioned the effect of the ingress
and egress of'publicly owned marine life to the area. We are
aware of no statute which claims  fish in private waters to be
the property of the State regardless of their origin. See
Parks & Wildlife Code S 1.011. The case law indicates that
the title to fish and the right of fishery depends upon the
character of the waters rather than the origin of the fish.
Diversion Lake Club v. Heath, supra; Taylor Fishing Club v.
133~~;t~i~;~a;   Fin & Feather Club v. Thomas, supra. In
  Y           g Club v. Hammett the court noted that "large
quantities of fish habitually pass from the [public] river
to the lake,," 88 S.W.Zd at 128, but held that the owner of the
bed of the nonnavigable lake held the exclusive right of
fishery. Thus the import of the ingress and' egress of marine
life is dependent upon the manner thereof and the possible
effect upon the ownership of the waters. An open connection
between Sabine Lake and the waters of the disposal area may
subject such waters to the claim of the State under section
5.021 of the Water Code, for the disposal area may thereby
become subject to the ebb and flow of the tide. Such a result
would be consistent with the authorities which hold that pri-
vate ownership of land is lost when the land becomes occupied
by public waters. Lakefront Trust, Inc. v. City of Port Arthur,
supra, and authorities cited therein. Thus the opening of a
connection between Sabine Lake and the disposal area may void
a lease due to the city's loss of title to the waters. With
this observation, in our opinion the ingress of public marine
life would not in itself affect the legality of a lease of the
disposal area.

                          SUMMARY

          Under the circumstances discussed above,
          for adequate consideration the City of
          Port Arthur may lease a spoil disposal
          site for production of marine life.

                                    ry truly yours,

                              Q?y-tsY7&
                                ti0~W L. HILL
                                 Attorney General of Texas




                             P. 4480
    Honorable Henry Burkett     - Page 6   (H-1090)



    APPROVED:



---&L-y
     DAVID M. KENDALL, First Assigtant




    c. ROBERT HEATH, Chairman
    Opinioa Committee

     jst




                                 P. 4481
