                            Oc,:ober29, 1986




    Honorable Curtis R. Wilkin3on         Opinion No. JM-572
    Lamb County Attorney
    County Courthouse, Room 103           Re:   Whether a lake in a munici-
    Littlefield, Texas 79339              pal park is public water under the
                                          jurisdiction of the Texas Depart-
                                          ment of Parks and Wildlife for
                                          purposes of the Water Safety Act

    Dear Mr. Wilkinson:

          You inquire whether a Blake in a certain municipal park is public
    'water within the meaning of the Water Safety Act and subject to the
     jurisdiction of the Texm     Department of Parks and Wildlife for
     purposes of the Water Safety Act.

          A home rule city has leased for recreational puxposes a reservoir
     and adjacent shoreline on private ranch land outside the limits of the
     city. We are advised that the reservoir is approximately 1200 surface
     acres and is fed by.underground springs and rainfall and that citizens
     of the area have used the lake extensively for swimming, skiing,
     fishing, and camping for many years. By ordinance, the city has
     declared the reservoir ani.adjacent shoreline a municipal park for as
     long as the ordinance and long term lease remain in effect. The city
     also adopted the provisions of the Texas Parks and Wildlife Code as an
     ordinance to govern the behavior in and use of the municipal park.

          Statutory and case law determine whether specific bodies of water
     are the property of the slate. Statutory law now codified as section
     11.021(a) of the Water Code provides that
                    -
               [t]he water of t!leordinary flow, underflow, and
               tides of every :il.owingriver, natural stream, and
               lake, and of evsery bay or arm of the Gulf of
               Mexico, and the storm water, floodwater, and rain-
               water of every river, natural stream, canyon,
               ravine, depressi.on,and watershed in the state is
               the property of the state.

     The statute has been interpreted by the courts in light of the
     constitution and the law under which lands were granted. Water from
     springs and surface water Erom rainfall covering private land is not
P




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Honorable Curtis R. Wilkinson - Page 2 (m-572)




always state water within the meaning of section 11.021(a). See
Turner v. Big Lake Oil Co., 96 S.W.2d 221, 228 (Tex. 1936) (rainwater
on private land);                  527 S.W.2d 754, 759 (Tex. Civ. App.
- San Antonio 1974,                n.r.e.) (ownership of water from
springs). See also Diversion Lake Club v. Heath, 86 S.W.2d 441, 446
(Tex. 1935) (water diverte(Tfrom navigable stream); Reed v. State, 175
S.W.2d 473 (Tex. Civ. App. - Eastland 1943, no writ) (surface water in
non-navigable lake); Taylor ,Fishing Club v. Hasauett, 88 S.W.2d, 127,
130 (Tex. Civ. App. - Waco 1935, writ dism'd) (water from springs,
rainfall, and floodwaters in non-navigable inland lake); Attorney
General Opinions H-805 (1976); H-68 (1973); M-1210 (1972); O-6579
(1945).

      The question of whether specific water is state water under
 section 11.021(a) of the Rater Code usually involves facts that this
 office cannot determine in the opinion process, such as the source and
 location of the water. However, the real issue before us is whether
 the reservoir is public water for purposes of the Water Safety Act and
 not whether it is the property of the state. In our opinion, the lake
-on private land that is lt!asedto the city for recreational purposes
 and used as a public munic:.palpark is public water within the meaning
 of the Water Safety Act, and the Parks and Wildlife Department may
 enforce the act.

     The provisions of the Water Safety Act "apply to all public water
in this state and to all watercraft navigated or moving on the public
water." Privately owned water is not subject to the provisions of the
Water Safety Act. Parks 6 Wild. Code §31.004. Section 31.003 of the
Parks and Wildlife Code provides that

           [l]n this Chapter [the Water Safety Act]:

              .   .   .   I




             (5) 'Water oj! this state' means any public
          water within the territorial limits of this state.

The Water Safety Act does not define "any public water" within the
territorial limits of this state. The legislature, however, did state
the policy of the act. Se:tion 31.002 provides:

             It is the duty of this state to promote
          recreational water safety for persons and property
          in and connected with the use of all recreational
          water facilities in the state, to promote safety
          in the operatior-and equipment of facilities, and
          to promote uniformity of laws relating to waZZ
          safety. (Emphases added).




                              p. 2550
        Honorable Curtis R. Wilkinmn   - Page 3   (JM-572)
    .

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             We do not construe the charter powers of the city but assume,
        without deciding, that the city is authorized by its charter to
        acquire property for use as a city park. A city is authorized by
        state statute to acquire and operate property for recreational
        purposes, including land outside the city limits. See V.T.C.S. art.
        6081e (cities may acquire lyr gift, devise, purchasezr    condemnation
        land for oublic uarks wit:l:Lnor without limits of the citv): art.
        6081f (cities may acquire land for park purposes and ope&;e and
        maintain parks). See also V.T.C.S. arts. 1015c-1; 1176; City of
        College Station v. Turtle R%k Corp., 680 S.W.2d 802, 807 (Tex. 1984);
        Attorney General Opinions Tt-889, M-804 (1971). A city's power to
        acquire property for municip.alpurposes implies the power to lease it.
        See Attorney General Opinion Nos. MW-535
        -                                        (1982); O-6911 (1945).

              A lease of real property is a sale of the right to use and occupy
         the property for a certain period of time and is a transfer of a right
        of ownership and an interest in the property. See State National Bank
        of El Paso v. United States, 509 F.2d y32.835         (5th Cir. 1975);
        Citizens Bank and Trust CoTv. Wy-Tex Livestock Co., 611 S.W.2d 168,
        ‘171 (Tex. Civ. App. - Amariilo 1981, writ ref'd n.r.e.); L. A. Durrett
        h Company v. Iley, 434 S.W.Zd 367, 371 (Tex. Civ. App. - Dallas 1968,
        writ ref'd n.r.e.). In Evans v. Ropte, 96 S.W.2d 973 (T&x. 1936). the
        court, quoting from a dis&sion      by Emory Washburn in his book on
        Servitudes and Easements, points out that a right to take,water from a
        spring or well is a grant of own.srshipand constitutes an interest in
        real estate.

             The Texas Supreme Court has stated that a municipal park is a
        place where the public gene.rally.maygo for various kinds of recrea-
        iion and amusement. --
                             L&S    v. City if-Fort Worth, 89 S.W.2d 975, 978
        (Tex. 1936). See also ICi!y;v. Sheppard, 157 S.W.2d 682, 685 (Tex.
        Cl". ADO. - Austin 1941. writ ref'd w.o.m.) (oublic oark is ulace
        which public at large may-resort to for recreation). Land acquired by
        a city for use as a public park is acquired for a public use.

             It is our opinion tha,t the fact that the city owns a leasehold
        interest in the lake which is used as a public municipal park ana'"a
        recreational water facility in the state" makes the lake public water
        for purposes of the Water Safety Act. We conclude ,that, during the
        duration of the lease to ~1e city and the city's use of the lake as a
        municipal park, the lake is not privately owned water within the
        meaning of the Water Safety Act. Hence, it is not excluded from the
        provisions of the act.

                                       SUMMARY

                     A lake on private land that is leased to a city
                  for recreational purposes and used as a public
                  municipal park illpublic water within the meaning




                                        p. 2551
Honorable Curtis R. Wilkinson - Page 4     (JM-572)




          of the Water Safety Act, and the Parks             and
          Wildlife Department may enforce the act.




                                        J-b
                                         Very truly yours,
                                                .



                                         JIM     MATTOX
                                         Attorney General of Texas

JACK HIGHTOWER
First Assistant Attorney General

MARY KELLER
Executive Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee        ,

'Prepared by Nancy Sutton
Assistant Attorney General




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