                THE'ATTOF&NEY                       GENERAL

                               OF     TEAxAS

                               Au~-~INII.%%~~A&
'ACi*;"N*:RB‘.ARK
rlT,,Mx~-GlcXP-HAL.
                               &ber         30,, &a        1:
                                                   _,~ ,. ,~
   Honorable   Joe Reeweber                 C&Ion       ‘No. C-340
   County Attorney                     ,,      ~    c
   Harrle County                        Re: .Whether the interferenoe
   Houston, Texas                       with riparlan: rights of access
                                        by oonlstructlon of a highway
                                        bridge with a fender ayatem in
                                        a navigable sIzeam constitutes
                                        a te+klmg of prop,erty within the
                                        mean$ng 0S Article    I, Sec. 17,
   Dear Mr. Reaweber:                   Coaetitution    of Texaa.~
          You have requested     an opinion        fllom this   offiob   on the
   following   matter:
              Whether the lnterferenoe    with rlparlan rights of
         access by conptruction    of a highway bridge with a
         fender system in a ntivlgable ntrsam uonstltutes     a
         taking of property within the meaning of Article       I,
         Sectfon 17, Constitution    of ‘Ihxas.
          Your opinion request and cubsequent aorrespondence haa
   shown that the State Highway Department has constructed       a
   rolling   lift   bridge (draw bridge) with’s fender ayatem in
   Clear Creek, a navigable stream. ”‘19re Sender systim ccnmiats
   of pilings     whloh are conneated by heavy timber8 and la entirely
   free of the bridge aonatruatlon.      Thle~ 6yetem keeps ships In
   the dredged part oft the channel, keeping them~%n a straight
   passage and keeping them from beaohing or hlttlag      the bridge
   piers.    The diagram you enclosed with your oorre~pondence also
   shows that blinking lights are attached IXJ the fender spatem.
   The north fender system uhlah doe8 ‘mot toaeh the shoreline,
   aeema to be the fender that IS the baai       OS this OplnlOn re-
   quest, In that it might deny amem! to tlu water oompletely or
   aubstantlally,mstr~ct        aooees~af      tbe .riper%u      owner who 0-s
   the land next to, the right ,of way of State Highway 146.   Ib
   thirr case Umfender   system war wJwl&y oonrtrwted   within the
   bed of the stream.
         In Btotz v. E&d,      116 Tax. s;, ,peti
                                                ,s.w..&a8 (19It6),the
   SupremeCourt h ld fiat        it *rr) wlWout dUpu9e~that the State
   owna the bed 6f’navigtible rtr&&aii%eU                   IS N&e waters which
   flow therein and are to be oomkvoUad                     &&umd    of by the
   State for ,thebeet %ntereet of ,Bha                     . klge   Cureton 8tated:
Honorable Joe Resweber, page 2, Opinion No. C-340


     II
      . .  .  The waters are in trust for the public:
     First, for navigation purposes, which concerns all
     the public and is ordinarily regarded as a superior
     right; second, the riljarianwaters of the stream
     are held in trust by the state for the ~riparian
     owners along its margins; . . .I’
                             ,“,
                              ::
                               pi:
                                ,:,,:’       .-,,<1
                                                :.yI   “,, ,.~‘~~
                                                                >,,,.,.:
     The Supreme iourt ‘in ‘an earlier opinion Se1man.i   i.vv,
                                                             W o.lfe
                                                                   ,‘~
27 Tex. 68 (x363),   held’.thatnav’igablestrea& within the’ “‘
State are public.highwaysand are exclusively subject to the
controlsof the ‘Sttite.,’
                        ‘:.:,;::
                               >I’:
                   ,‘, , ^;;
    ‘The,Must i:n-,.~C~c~agoi::R..,E.
                                    :& G. Ry. Co. v. Tarrant Co.
Water Control,,,eto..,,12,3 ,Teki 432, 73 S.W.2d 55 (1934) at page
70 stated:
                                                      .~,   ,,,.,’




        “Dfi7 The authorities also appear to be uniform
     .in,
        holding’:
                that:.&ons@uential damagesi ineLdenE to ;!
     navigation improvements must be borne by Vhe party
     affected, and not by the government. . . .”
     The s’ame Count ,in‘~BxazosRiver Auth.orityv..City of Gra-
@,    163 Tex. 167,, 354 S&W .2d 99 (1961),:held at page’131’:
                                     !..
         “The petitioner repeats that th,isIs :a”dase of ‘,
     damnum absque injuria. A number of authorities are
      cited as supporting!th1.sposition. ,There Is in the
      law rela~ting.,to,
                       waters~a~class ,ofcases which hold.
      that,certain.:injuries, to land caused,by artificial
      changes in the channelof a stream.i.naid :ofnaviga-
      tion.orthe .eonstruqtion of revetment works designed~
     to prevent .eroslon bytwater are noncompensable. The
     true basis of the holdings ofthe.naviga;ion cases
      seems to restin the police power.~ i : .
                                      ,_    ,:’ ‘,..:
     The UnLted StatesSupreme Court”in Scranton v. Whe,eler ,’
179 U.S. l&l (1900);:~concernimg~  a pier constructed by the
governme,ntin a-,canal,stated:;.
                                       <y>‘~ ‘,      -, .,
         “If the ripa,rla,n,
                           owner dannot enjoy access :to
     navigability,be,,cause ‘of.the ,improvement:
                                                4f haviga- : :’
      tion by the eonatructlbn,,:away..fromthe;.shoreline of
     works in a public navigable river or water,:and if
      such right of access ceases alone for that reason
      to be of value, thereis,.@,     within the::mea,ning
                                                         :of’
     the Cons,tit&ioq,a ta~klngof,pr$vate property ;for
     public .use.ibut?:onXv a -,.e,orrse~uentia1:.:,i~.l~rv’
                                                    to a’    ,,
Honorable Joe Resweber, page 3, Opinion RQ. C-340


     public'--an injury resulting incidentally from the
     exercise of a governmental power for the benefit of
     the general public, and from which no duty arises
     to make or secure compensation to the riparian
     owner." (Underlining added.)
     2 Nichols on Eminent Domain, (3rd Ed.) on page 251 states:
     II. . . The United States or a state ma,yeven con-
     struct works in aid of navigation in the bed of a
     navigable watercourse which wholly cuts off access
     from the riparian land to the water without any
     obligation to make compensation arising. . . .
        'The reason for the immunity of the public author-
     ities from liability to make compensation, when pri-
     vate property is invaded or valuable riparian rights
     destroyed by the construction of works in aid,;of
     navigation, is not based upon the fact that such in-
     jury is not severe enough to constitute a taking,
     but that it is an exercise of the public easement,
     and a use by the public of the public domain. There
     are no private rights in navigable watersthat are
     not held subject to the public easement or which
     conflict with or encroach upon the rights of the
     public in respect to navigation."
     See also 65 C.J.S. 157, Navigable Waters, Sec. 67~.
     Based upon the above authorities, it is our opinion that
the State can construct a highway bridge with a fender system
in a navigable stream on the submerged land and that a landowner
has no such right under the Constitution that would entitle him
to be compensated for any loss of access from his upland to the
body of water in question, resulting from the erection and
maintenance of the fender system by the State of Texas, in order
to improve the navigation of a public naviga,blewaterway.
                           SUMMARY
          The interference with riparian rights of access
     by construction of a highway bridge with a fender
     system in a navigable stream, which is in aid of
     navigation, is not a taking of property within the
     meaning of Article I, Sec. 17, Constitution of Texas.




                            1613
Honorable Joe Resweber, page 4, Opinion No. C-340


                              Yours very truly,
                             WAGGONER CARR
                             Attorney General of Texas



                              BY
                                    CHARLES R. LINq
                                    Assistant'Attorney General
CRL:da
APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
Arthur Sandlin
Milton Richardson
Bill Osborn
Pat Bailey
APPROVED FOR THE ATTORNEY GENERAL
By: Roger Tyler
