Honorable Sam Lee
District Attorney
Brazorla County
Angleton, Texas      opinfon ~0, ~~4.76
                     Re:, Does the Retrieve State
                          Farm, a unit of the Texas
                          P&son System, have the
                          authorfty to run a fence
                          across Buffalo Camp Bayou
                          at a point entirely wPthfn
                          the prison owned property?

Dear Sir:
          In your letter dated,May 24, 195T9 requesting
our opinion, you ask the following question and stated
fn part the followfng facts8
         "The questfon fas Does the Retrieve
      StateFarm, a unit of the Texas Prison
     System, have the autharfty to run a fence
     aerosa Buffalo Camp Bayou at a point en-
     tirely wfthfn the pPfson owned property?
          "The prfson system owns the land on
      both sides of the Buffalo Camp Bayou. Buffa-
      lot Camp Bayou empties %nto the Bravos Rfver
      and from its mouth to the pofnt of the fence
      fs more than 30 feet fn wfdth.
          "Iieitherthe S.F. Austin nor the Jared E.
      Qroce Original Grants make any mentfon of
      nuffalo Camp Bayou, and, therefore,do not
      except Buffalo Camp Bayou from the orfgfnal
      grants. The deed from the owners whb con-
      veyed the property, now known as Retrieve
      State Farm, to the State of Texas on the
      1st day of February, 1918, does not mention
                                                        ..   ,.




Honorable sam Lee, page 2 (~~-176)




     Buffalo Camp Bayou nor except it from
     that conveyance.
         "Therefore,the State did not reserve
     any record title to Buffalo Camp Bayou.
     However, the Congress of the Republic of
     Texas, In 1837, enacted a statute stating
     in part as follows: *All streams so far
     as they retain an average width of 30 feet
     from the mouth up shall be considerednavi-
     gable streams wFthin the meaning hereof
     and they shall not be crossed by the lines
     of any survey.'
         "This statute is carried forward as
     Article 5302 of the Revised Civil Statutes
     of Texas."
          Navigable streams within this state are beyond
question the highways of the State and subject to the ex-
cluslve control of the Legislatureand may either be
wholly or partially obstructedif In the Legislature's
judgment the public Interest will be promoted by so
doing. Felman v. Wolfe, 27 Tex. 68 (1863). We have been
unable to find any legislativeenactment which vould au-
thorize the Texas Prison System to obstruct a navigable
stream.
          As cited In the statement of facts contained
in your letter, Article 5302, V.C.S., defines a navigable
stream within this State as a stream with an average
width from the mouth up of thirty feet. Assuming for
the purposes of this opinion, that the bed of Buffalo
Camp Bayou has been relinquishedb the Legislature
under the authority of Article 541%a, V.C.S., popularly
known as the "Small Act', the right to the water within
the stream was not affected. This statute contains the
following provlsiona:
               "Provided that nothing In this act
          contained shall lmpzti.~ the rights of the
          general public and the State in the
          waters of streams or the rights of ri-
          parian or appropriationowners In the
          waters of such streams.'
Honorable Sam Lee, page 3 ,(~~-176)



          ThereroPe, i% fs our opllnLonthat the "Small.
Act* dfd not prsvlde Legislativeauthorfty for the ownera
of beds of 'navigablestreams'to obs%Fuct the aame noE to
exclude:the general public therefrom;
          In Tyler v. Goneales' 189 S.W.id 519 :(,C$&.lbpeals,
1945, vrlt rep.) th       t heid that a landowner (the land
vas assumed by tie c&?to     come under the 'Small Aot")
could run a fence to the mltdd2eof a e%ream and then run the
fence down the thread of such ~%~eam. In this case the court
said, afte~ stattng there ~a5 no evidence to show the fence
constituteda n@aanoe, "We take 1% therefore that appellees
are not contemplrrtingthe ~~~st~~~%~~~ob"a fence whfch would
pass to the east of %he ths?eadof the a%peammi The attempted
constructionacross the bed of the atkeam would raise the
further and addftional ~~~a~~~~s,w~~~~are n,o%dfseuased fn
this opinton.".                                   I

          It fs ouF ap?$r(1908
                            ,that%be restkfctfvereservation
fn the "Small Act" rese%v%ng the'rQh%a of the genepal public
to the waters of the streams of %h%erState did not change
the exfsting law relati,ngto the obstraotionof navigable
streams0 In addftion, the use of streams fop transportation
has long been coaezide~edone of the prfmaq rights of the
general public to the waters of thXs State and fs protected
by Article ~83~ Penal code, wh%& ppovP,desa fine of not
less than Fifty non more than Five Hundred Dollars for who-
ever shall obs%ruot any s%~eam %n %his State whfch fs navi-
gable ,fnfact.
          9h&sefcpre,~regatilesah9fwhether the Texas Prlaon
System owns the bed of the stP@am mde~  the provfsfotisof
the "Small Act", we conelude that there is no authoretg
by which the Prison S;rretem
                           may m%%ntaia a fence across
such stream and exclude the gemem public from the use
              of such streams fo~navigation,:ffshing or
of the r.Tat.epa
any other legal use. The Supreme Court held fn Dfversion
Lake Club v. Heath, 126 Tax. 129, 86 S.W.2d ai lr
that where a dam across a mavigab9e stream flooded land,
privately owned, the p~Sva%e owgaekconld not deny the ~~.
publfc the right to ftsh L&Ithe water over his land al-
though the publ%e had no sight to use the banks.
          On the other hand, alracethe general publfc
would be entitled only to the u8e and edJoymea% of the
vaters wfthfn the stream aaadnot the dry bed thereof, we
are of the onfnfon that the Texas Prison System could
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                                                            -
                                                                c..   ^




Herrorable
         Sam Lee, page 4    (~1176)




maintain a fenoe acrema the dry bed of a stream navigable
in law though not navigable 18 fact, eo long as such a
fence did not aoastltutea nuSsance ana did not lnterrtere
wSth any legal right the public might have in and to said
stPeams. Tyler v. Qoazalea, supra.




              The Bettieve State Farm has no
        authority to run a fence acroee Buf'ralo
        Camp Bayou at a point entlrelg within
        the prison ewned property, if such a
        fence would claptirethe general publle
        fpom the uee and enjoyment of the waters
        contained therein. Such a fence could
        be maintained durimg the time there was
        no water la the bed of the stream 80 long
        a8 suah a fenoe did not create a nuisanre.
                                Yours very truly,
                                UILL WILSOIV
                                Attorney General of Texas




APPBOVED:
OPIFJIOEl
       COMMITTEE
H. Grady Chandler, Chairman
Larry Jcner
Milton Riahardson
Joe G. Rollins
REVIEWED FOR TRE ATTORNEY
GEl‘iERALBYt
       Geo. P. Blackburn
