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                            TEXE   LITE-ORNEY   GENERAL
                                       OF TEXAS
                                    AUS-~IN.   -lkXAS         78711




                                               July 24,       1973



             Honorable   Ogden Bass                           Opinion No. H-    68
             District Attorney      .
             Brazoria  County                                 Re:     Whether it is a trepass
             Angleton,  Texas 77515                                    for a boat, floating in
                                                                      tidal water, to occupy
                                                                      a position over private,
             Dear    Mr.   Bass:                                      submerged property.

                    You have requested our opinion as to whether or not occupants of
             a boat are trepassing   on private property if, when the boat is floating
             in tidal water it occupies a position over and above private property
             which is submerged    by the tidal water.

                   You have furnished us with a sketch of the proposed project from
             which we gather that the intercoastal    waterway is generally to the north-
             west of the property in question.    At some time in the past a drainage
             cut has been made along the southwest boundary of the property in ques-
             tion.  As this drainage cut approaches    the intercoastal waterway it widens
             so that, while it is 20 feet in width at the southeast end of the property,
             at or near the proposed boat ramp, the cut is 47 feet wide and is 62 feet
             wide as it enters the intercoastal   waterway.

                   Apparently   at low tide the entire 47 foot width and/or the 62 foot
             width are above water, but with the rise of the tide it becomes    submerged.
             Of the 47 foot width and the 62 foot width a large portions is owned by pri-
             vate owners.

                   You have not furnished us any facts concerning the basis under which
             the surface of these owners is submerged.     We are not asked and do not
             answer what their rights are in their property which is under the tidal water
             or what uses they may make of it.

                   The ramp which is to be constructed is entirely on state highway
             department property and does not project onto or over the private property.




                                                p.      293
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Honorable   Ogden Bass,       page 2   (H-68)

 However,     boats will be able to use       the ramp only when the private
 property   is submerged.

        Section    5.021(a)   of the Water    Code,   Vernon’s   Texas   Civil Statutes,
 provides:

                     “The water of the ordinary flow, underflow,
              and tides of every flowing river, natural stream,
              and lake, and of every bay or arm of the Gulf of
              Mexico,   and the storm water, flood water, and
              rain water of every river,     natural stream, canyon,
              ravine, depression,    and watershed in the state is
              the property   of the state. ”

       It is our opinion, therefore,     that the water covering the privately
 owned but submerged land is state water and that the public has a right
 to use the water for navigation,    fishing and other lawful purposes.   Diver-
 sion Lake Club v. Heath, 86 S. W. 2d 441 (Tex. 1935); State v. Lain, 349
 S. W. 2d 579 (Tex. 1961). And see Attorney General Opinion M-1210 (1972).

        As these authorities hold, however,    the right to enjoy the water does
 not give the public the right to trespass  on the property itself to gain access
 to the water.

         However,   in answer to your question,  we would state that when a
 boat is floating in tidal water, even though it occupies a position over and
 above private property which is submerged by said tidal water, the occu-
 pants of the boat are not~trepassing    on the private property.  This is par-
 ticularly  true if the flooding results from voluntary acts of its owner.

                                             SUMMARY

                         Where private property is submerged as
                  a result of the construction    of a lake, a water-
                  way, etc.,   in the absence of some special pro-
                  vision affecting title to the private property it
                  remains such and is subject tothe rules against
                  trespass.    Persons   using tidal waters above such
                  private property,    however,   do not commit a
                  trespass even though above the submerged prop-




                                         p.     294
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             Honorable   Ogden Bass,   page 3     (H-68)




                          erty, so long as they do not actually use private
                          property as means of access to the water.


                                                   Yours     very   truly,




             APPROVED:




             DAVID M. KENDALL,         Chairman
             Opinion Committee




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