IicnorableII. Lee O'Daniel
Governor of The State of Tsxao
Austin, Texas

Dear Governor O'Daaiel:              Opinion No. O-2627
                                     Rer Grant of easement by State
                                         to United States Govsnrment
                                         in land underlying navigable
                                         waters.

         You have requested the opinion of this deportment upon the ques-
tion of whether or not the State of Texas can legally grant to the United
Stats8 Government an easement in certain land situated in Oso Bay, a navi-
gable ?my lacpted ia Nusces County, Texas. The easement is desired by the
United States Government to provide a spoil arba neaessary for and incident
to the construction and maintenance of a channel te end a turning basis at
Encinal Peninsula on which peninsula a United States naval aviation base
is now being constructed.

          It is settled that the sale of an easement ia land is a sale of
land.   Settegast v, Foley Bras. Dry Goods Co., 114 Tex. 452, 270 S.W. 214.

          Section 4 of Article 7 of the Constitution of Texas provides:

"The lands herein set apart to the Public Free School Fund shall be sold
under such regulations, at such times, and on such terms as may be pre-
scribed by law; and the Legislature shall not have power to grant any re-
lief to purchasers thereof. The Comptroller shall invest the proceeds of
such sales,and of those heretofore made, as may be directed by the Board
of Education herein provided for, in the bonds of the United States, the
State of Texas, or cowties in said State, or in such other securities,
and under such restrictions as may be presoribsd by law: and the Stats
shall be responsible for all investments."

         In order to determine the applicability of the above cited con-
stitutional restrictions which litiitand regulate the sale of land set
apart to the Public Free School Fund, it is neaessary, first, to determine
whether or not lands lying under navigable waters (such as the area in
question) are included withinthe lands which have been dedicated and sat
apart by the Constitution and by statute to the Publio Free Sohool %nd.

         In State v. Bradford, 121 Tex. 515, 50 S.K. (2d) 1065, it was
held that the beds of navigable rivers ia Texas were not included within
the land set apart pnd dedioated to the Public Free School Fund. That
decision was largely based upon the reasoning that lands underlying
                                                ‘-\
               .-   -                                 I   -   .-


Hon. W. Lee O'Daniel, page 2 (O-2627)



navigable waters in Texas are held in trust bythe State for the free
use and enjoyment of the public generally, and that specific and defi-
nite language is required to grant such areas either to an individual
or to a specific fund. A similar rule was expressed bythe SuRr&ae
Burt in Landry v. Robinson, 110 Tex. 295, 219 S.W. 619. In view of the
above cited decisions of the Supreme Court of this State, together with
many others of similar import, we are oempelled to hold that lands under-
lying navigable waters of this state have not been dedicated to the Public
Free School Fund and that the provisions of Section 4 cf Article 7 of the
Constitution are, therefore, not applioable to land underlying the navi-
gable waters of Oso Bay.

         We have also examined Section 34 of Article 16 of the Texas Con-
stitutionwhich provides:

"The Legislature shall pass laws authorizing the Governor to lease, or
sell to the Government of the United States, a sufficient quantity of the
public domain of the State necessary for the erection of forts, barracks,
arsenals, and military stationa, or camps, and for other needful military
purposes; and the action of the Governor thcreim shall be subject to the
approval of the Legislature."

         In conformity with the decisions and the reasoning in the above
cited cases, we are also compelled to hold that Section 34 of Article 16
does not apply to lands underlying a navigable bay since no specifio or
definite language is found in Section 34, Article 16, providing for the
inclusion of such areas.

         We have found no other provision of the Constitution, which within
reason, could be held to restrict or limit the power of the Legislature to
authorize the sale of the easement ef the land in cuestion. It has, in
fact, been held by the Supreme Court of Texas that land underlying navigable
waters can be legally granted by the Legislature. City of Galveston v.
Menard, 23 Tex. 349.

         The sole remaining question is whether or not the Legislature has
authorized the sale of the land in question to the United States Government.

         Articles 5242 and 5245 of the Revised Civil Statutes, 1925, provide
as followsr

"Article 5242. The United States Government, through its proper agent, may
purchase, ao biro, hold, own, occupy and possess such lands withim the lim-
its of this 8tats as it dsemr expedient and may seek to eccupy and hold l e
sites en which to erect and maintain light houses, dock yards, custom houser,
post offices and all other needful public buildings, and for the purpose of
erecting and constructing leeks and dams, for the straightening of streams
by making cutoffs, building levees, or for the erection of any other struot
tures or improvements that may become necessary in developing or improving
the waterways, rivers and harbors of Texas and the consent of the Legielature
is hereby expressly given to any suoh purchase or acquisition made in aoeerd-
anoe with the provisions of this law."
Hon. N. Lee O'Daniel, page 3 (O-2627)



“Article 5245.  l&en this State may bs the owner of any land desiredby
the United State8 for any purpose apeoified in this title, the Governor
may sell such land to the United States, and upon payment of the purohare
money therefor into the Treasury, the Land Cemminaioner, upon the oiler of
the Governor, shall issue a patent to the United States for such land in
like manner a8 other patents are issued."

         The quoted statutes, in our opinion, funish the requisite stat-
utory authority to enable the Governor te sell the land in queetfon en be-
half of the %ate.   It is apparent frem the language of Artiole 5242 that
the Legiolature definitely had in mind and plainly intended to include
within the lands whioh it authorized the Governor to sell, in Article 5245,
those lands underlying the navigable waters of thin State, This ir clear
fremthe nor ding of Article 5245 which expressly mentions and makes pro-
vision for the purchase of land by the United States Government te be used
in the erection of "dock yards," "looke and dams" and the "straightening
of streams by making cutoffs, building levees, nnd for the.ereotion of any
other structures or improvements that may become neoersary in developing
or improving the wateranyr, rivers and harbcurs of Texas . . ."

         It io also our opinion that the Lsgielaturs in enaoting the abow
cited etatutes intended and contemplated that the Governor, in selling the
land on behalf of the State,ahould sell the same for its real value to be
determined by the Governor. Artiole 5245 further provides that upon sale
of the land bythe Governor and upon payment of the purohase money therefor
into the Treasury, a patent shall issue tc the United States for such land
in like manner as other patents are iseued.

         In view of the opinion herein expressed that you are authorized
to sell an easement in the land in question, it is possible that anwers to
additional questiono propounded in your letter will beoeme unneceaaary.
Ebwever, in the event you are unable tm agree with the authorized agent
of the Federal Government upon the purchase price for the easement, we
call your attention to the fact that Articles 5243 and 5244 expressly au-
thorize and provide for the institution of condemnation proceedings for
the aoqu%sition of such land.

         It has been expressly held in B number of decisions that statutes
providing for condemnation proceeding8 are applioable to State onmed lands.
Texas Central Ry. Co. v. Bownan, 96 Tex. 417, 79 S.17.295. Imperial
Irrigation Cc. v. Jayne, 104 Tex. 395, 157~S.W. 751. Kohl v. United States,
91 U.S. 367, 23 L. Ed. 449.
              *c   1.




Bon. N. Lee OfDaniel, page 4 (O-2627)




         The conclusions herein expressed are ti accord with prior
rulings of this department as shown by Conference Opinion No. 2815,
dated September 23, 1930, recorded in the Opinions ofthe Attorney
General, Vol. 64, p. 15. A cdpy of that opinion, which '110 expressly
approve, is hereto attached.

         We trust 'that the foregoing fully answers your inquiries.

                                         Yours very truly


                                   A'ITORNEYGENERBLOFTEXAS

                                   By /s/Robert E. Kepke


                                           Robert E. I[Bpke
                                                 Assistant



REKrBT:egw

APPROVED NOV 23, 1940
/s/ GEULD C. MANN
ATTORNEY GEXERAL OFTEXAS                          APPROVED
                                              Opinion Committee
                                                  ByBYPB
                                                  Chairman
