                                           1   ‘




                  -E   A~TORNEY            GENERAL
                           OF TEXAS
                          Ausm     II. -

   WLL    WILSON
A-rroRNEY    GENERAL


                       February 27, 1961

 Honorable Jerry Sadler          Opinion No. WW-1002
 Commlssloner
 General Land Office             Re:   Whether a channel and dock
 Austin, Texas                         corporation has the authority
                                       to dredge a channel across a
                                       State owned portion of Mustang
                                       Island, which channel Is to
                                       be used primarily for recre-
 Dear Mr. Sadler:                      atlonal purposes.

            The Channel and Dock Development Corporation, of Corpus
  Christl, proposes to cut a channel across a State owned portion
  of Mustang Island, as shown by plat and sketch furnished your
  office. Your letter states that the company has Informed you
  that the channel will be used primarily for recreational purposes
  and that the approval of your office has been requested for the
  dredging of such channel. You request our opinion as to "whether
  such channel and dock corporation has the authority to cross
  State owned land with anneasement which Is to be used primarily
  for recreation purposes.
            Corporations of this type are authorized by Chapter 13
  of Title 32 of the Revised Civil Statutes dealing with rlvate
  corporations, which chapter consists of Articles 1478-l&82,
  Inclusive. Generally speaking, the laws dealing with private
  corporations were repealed and superseded by the Texas Business
  Corporation Act of 1955. See Article 9.16 of said Act. However,
  Article 9.15B states that:
                 I,
                  . . . any special limitations, obligations,
            llabilltles, and powers, applicable to a partlc-
            ular kind of corporation for which special pro-
            vision is made by the laws of this state. . .
            shall continue to be applicable to any such
            corporation, and this act Is not intended to
            repeal and does not repeal the statutory
            provisions providing for these special limi-
            tations{,obligations, liabilities, and
            powers.
            The following "Comment of the Bar Committee" published
  In Vernon's Annotations to Article 9.16 of the Business Corporation
                                                                    .   .




Honorable Jerry Sadler, page 2 (WW-1002)
                                                  '.


Act with reference to Chapter 13,   dealing with channel and dock
companies Is noted:

                "All of the provisions of this chapter
           will continue to apply to corporations to
           which they relate.
We conclude that the powers granted to channel and dock corpora-
tions by Article 1478 et seq. have not been repealed. Article
1478 provides:

                "This chapter Includes corporations
           created for the purpose of constructing,
           owning and operating deep water channels
           from the waters of the Gulf of Mexico along
           and across any of the bays on the coast of
           this State to the mainland, for the purposes
           of navigation and transportation, and for
           the construction, owning and operating of
           docks on the coast of this State for the
           protection and accomodatlon of ships,
           boats and all kinds of vessels for navi-
                       their cargoes. . . ,II(Emphasis
           w       and
          We have examined the charter of the above mentioned
company on file with the Secretary of State and find that same
adopts the above statute In its purpose clause practically
word for word.
          Article 1479, Subdivision 3, authorizes such a corpo-
ration to construct a channel across bay waters:
               "
                      and so far Into the main land as
          may be'necessary to reach a place for its
          docks that will afford security from cyclones,
          storms, swells or tidal waves, with such
          depth as may suit its convenience and the
          wants of navigation, not less than five feet,
          and a width of not less than forty feet."
          The Supreme Court has interpreted this language as
authorizing the channel to be dredged "so far into the main
land as the corporation may deem necessary." Crary v. Port
Arthur Channel and Dock Company, 92 Tex. 275, 47 S.W. 967, 971
-(x598).

           Subdivision 6 of said Article 1479 states in part:
              than sovrn hundred Sect In width on each
              Bide of lto ohannol, , , .” (Emphasie added)
           It apporrs to be well settled that the authority of
suoh a oorporrtlon   to oonstruot ohannels and dooks la granted
by thr statute0     rforooald   and by the oompany’s oorporate            charter.




              In the OWrY oam,     auprb,     the court   said that     Artiole
1479:
                           provides that appellee should have
              the poiei in olearing   its right of way, to take
              WAY lands for its ohannel within the boundariee
              of- any bay , . . and to take any part of an
              island belonging to the State that may be
              requlelte  and neoeesary.   . . .
The charter     powers of the oompany were upheld in this             case.
            The only provleion     in the “channel and dock” chapter of
the statutes that defines the pur ose for which a channel may be
constructed     is found In Article   1fl78, Hrhereln reference Is made
to “oorporations      created for the purpose of constructing     . . .
deep water channels . .                   urpoaes of navigation  as
transportation.      . . .”              added)
             It has been held that boating        or sailing    for    pleasure
oonstltutes     “navigation”.
Railroad   Commlselon, 201 W
V.  Metcalf,   52 Mnn. 181,
              65 C.J.S.   91, Navigable     Waters,   Sec.. 22, states:
Honorable Jerry Sadler, page 4 (WW-1002)


               "The public right of navigation entitles
          the public generally to the reasonable use of
          navigable waters for all legitimate nurnoses
          of travel or transportation; either ?or~bislness
          or for pleasure, in any kind of water craft
          whether large or small, the use of which Is'
          consistent with the enjoyment by others of the
          right possessed In common." (Rnphasls added)
          To the same effect see Silver Springs Paradise Company
v. Ray, 50 Fed.2d 356 (5th Clr. l%l), cert.den., 284 U S b49
In that case.the court said at oage -__
                                    359 that the oDeration of '
the glass-bottom excursion boats at the famous resort at Silver
Springs, Florida, was an exercise of "the right of navigation".
          Further, there can be no doubt that the transporting
by boat, for example,of one or more passengers and their supplies
for a week-end fishing trip, constitutes 'transportation" just
as much as the carrying of freight.
          Section 4261 of the Federal.Internal Revenue Code
levies a tax on the transportation of persons by water and
otherwise. Section 4263(c)  provides:
               "The tax Imposed by Section 4261 shall
          not apply to amounts paid for transportation
          by boat for the purpose of fishing from such
          boats," (Emphasis added)

          In construing the said tax statute on transportation,
the court In United States v. Twentieth Century Fox Film Corpol
ration, 235 Fed.2d m       t den, 352 U.S. 917, stated th t the
facthat   a trip was "&~%ar"   , that is, one returning t: the
original starting point without stopping at another point, would
not prevent-it from being "transportation". Nor will the short-
ness of distance traveled nrevent a trio from resulting In
ntransportatlonn. Magnolia Warehouse and Storage Company v.
Davis and Blackwell, 108 Tex. 422, 195 S.W. la, lt)b (1917).
          In Iangford v. Rogers(,278 Mich. 310, 270 N.W. 692,
the court staled that the word transported" Included a person
riding on a toboggan hitched to a bobsled attached to a car.

          The United States Supreme Court has stated that trans-
portation in Its "ordinary sense" comprehends:
               w
                 . . . any real carrying about or from
          one place to another. It is not essential
          that the carrying be for hire, or by one for
          another; nor that It be Incidental to a
                .                          ,   .
            9




Honorable Jerry Sadler, page 5~ @W-1002)


          transfer of the possession or title. If
          one carries In his own conveyance for his
          own purposes It is transportation no less
          than when a public carrier at the.Instance
          of a consignor carries and delivers to a
          consignee for a stipulated charge." Cunard
          Steamship Company v. Mellon, 262 U.S.-
          122.
          In West End Dock v. State, 173 S.W. 285 (Clv.App. 1915)'
the court In construing the articles under consideration said at
page 288:
               "While channels and docks may be con-
          structed for private gain, when the legls-
          lature deals with that subject Its motive
          should be (and In this instance no doubt was)
          the promotion of the public good. . . ."
           It has long been recognized that the public good is
served by the use of State owned coastal areas. not only for
commercial purposes (Iorlno v. Crawford Packing Company: 149
Tex. 51, 175 S.W.2d 410, 1943)' but for recreation as well.
Galveston City Surf Bathing Company v. Heldenhelmer, 63 Tex.
559 bonflrminn the right of any citizen to erect a bath house
on-the State owned seashore); bIncans v. Keeran, 192 S.W. 603,
604 (Clv.App. 1917) (stating that "hunting, camping and fishing
are reasonable uses of the navigable waters and shore line");
Article 607oc-1,  V.C.S. (dedicating the seashore of Brazorla
County as a ubllc park); Article 5415d, V.C.S. (the 'open
beaches" ActP.
          It follows from what has been said that we are of the
opinion that your question should be answered in the affirmative.
                            SUMMARY
               A channel and dock corporation has the
          authority to dredge a channel across a State
          owned portion of Mustang Island, even though
          such channel is to be used primarily for
          recreational purposes.
                                   Yours very truly,
                                   WILL WILSON
                                   Attorney General of Texas



JAS:ljb                               v Assistant
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Honorable Jerry Sadler, page 6 (WW-1002)


APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
Leon Pesek
w. Ray scruggs
Bob Eric Shannon
Marietta Payne
REVIEWED FOR THE ATTORNEY GENERAL
By: Morgan Nesbltt
