Honorable James A. Morris     Opinion No. C- 370
District Attorney
Orange County Courthouse      Re:     Whether a navigable bayou
Orange, Texas                         located wholly in Orange
                                      County, Texas, is subject
                                      to the provisions of the
                                      River and Harbor Act of
                                      Congress, and also whether
                                      the construction across
                                      said bayou of a fixed span
                                      bridge with a vertical
                                      clearance of 35 feet is
                                      taking of property for
                                      which the State or County
                                      would be liable to an up-
                                      stream landowner whose
                                      ships require a minimum
                                      vertical clearance of 55
Dear Mr~.Morris:                      feet.
     You have requested an opinion from this office on the
following matters:
          Whether a navigable bayou located wholly in
     Orange County, Texas, is subject to the provisions
     of the River and Harbor Act of Congress, and also
     whether the construction across said bayou of a
     fixed span bridge with a vertical clearance of 35
     feet is taking of property for which the State or
     County would be liable to an upstream landowner
     whose ships require a minimum vertical clearance
     of 55 feet.
     Your opinion request shows that the State Highway Depart-
ment has proposed to replace a turn style bridge across Cow
Bayouwith a fixed span bridge with vertical clearance for
shipping of at least 35 feet. It is the further understanding
of this writer that the State Highway Department is in the
process of getting this proposed bridge approved by the Corps
of Engineers. Your correspondence also shows that there is
under construction a shipyard upstream from said proposed
bridge, and that the landowner's ships require a vertical
clearance of 55 feet in order to pass unobstructed from said
shipyard to the Gulf of Mexico.

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Hon. James A. Morris, page 2, Opinion No. C- 370


     In answer to your question concerning whether the provi-
sions of the River and Harbor Act of Congress aunlies to Cow
Bayou, a navigable stream, the United Stztes Supreme Court in
Gilman v. Philadelphia, 70 U.S. 96 (1866) held that the commerce
clause of the Federal Constitution furnishes the justification
for the superior control of navigable streams by the Federal
Government.
     Now turning our attention to the question whether the
State of Texas or Orange County would be liable for damages
due to the construction of the nroposed fixed span bridge, when
and if approved by the Corps of-Engineers, the United States
Supreme Court in Gilman v, Philadelp!nia, supra, in upholding a
decision in which a PlaiLntiff sought to enjoin the construction
of a bridge without a draw, stated:
          "It must not be forgotten that bridges, which
     are connecting parts of turnpikes, streets, and rail-
     roads, are means of commercial transportation, as
     well as navigable waters, and that commerce which
     passes over a bridge may be much greater than would
     ever be transported on the water it obstructs."
     The same court in a later opinion, Miller v. Mayor of New
York, log U.S. 971 (1883), a suit to restrain the erection of
a bridge between the cities of New York and Brooklyn because
vessels engaged in foreign commerce would have to strike part
of their masts due to the vertical clearance and thus increase
their towage fee, held:
          "Every public improvement, whilst adding to the
     convenience of the people at large, affects, more
     or less injuriously, the interest of some . . .
     Every railway in a new country interferes with the
     .b\nsiness
              of stage coaches and sideway taverns; and
     it would not be more absurd for their owners to
     complain of and object to its construction than for
     parties on the banks of the East River to complain
     and object to the improvements which connects the
     two great cities on the harbor of New York."
     The Court in United States v. 412,715 Acres of Land, Contra
Costa County, California, 53 F.Supp. 143 (N.D. Calif. 1943) at
page 148 stated:
          I,
                 In controlling, improving, and regulat-
     ing, the'navigability of waters the Government tradi-
     tionally acts for the benefit of the navigating public.


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Hon. James A. Morris, page 3, Opinion No. C- 370


     Unquestionably, it may deepen channels, widen
     streams, erect lighthouses, build bridges,
     construct dams, and make similar improvements
     without compensating the owners of land subject
     to the navigation servitude. All these things
     are clearly in aid of the 'greatest public
     utility' . . .ll (Rnphasis added.)
     The Supreme Judicial Court of Maine in Frost v. Washington
County Ry. Co., 51 A. 806 (MaineSup.Ct. 1901'),a case concerning
the closing of a channel to navigation bv the construction of a
railroad trestle 3/4 mile from the plaintiffls property in which
plaintiff claimed he had a cause of action against the railroad
company for injury to his property and business, held:
          "This claim cannot be sustained. The only
     right of the plaintiff interferred with by the
     defendant company was his right of navigation by
     water in and out of the cove through the channel.
     This right of the plaintiff, however, was not his
     private property nor even his private right. It
     could not be bought, sold, leased, or inherited.
     He did not earn it, create it, or acquire it. He
     did not own it as against the sovereign. The right
     was the right of the public, the title and control
     being in the sovereign in trust for the public and
     for the benefit of the general public, and not for
     any particular individual. The plaintiff only
     shared in the public right. He had no right against
     the public. The sovereign had the absolute control
     of it, and could regul+%e.,enlarge, limit, or even
     destroy it, as it might deem best for the whole
     public; and this without making or providing for
     any compensation to such individuals as might be
     inconvenienced or damaged thereby . . . If, in the
     judgment of the sovereign, a railroad across a
     navigable channel of water, and completely obstruct-
     ing its navigation, is of more benefit to the public
     than the navigation of the channel, it has the
     unrestricted power to thus close the channel to
     navigation, without making compensation to those who
     had been wont to use it. Every individual making
     use of a merely public privilege must bear in mind
     that he may be lawfully deprived of that privilege
     whenever the sovereign deems it necessary for the
     public good, and he must order his business accord-
     ingly.


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Hon. James A. Morris, page 4, Opinion No. C-370


     II
            We regret that the plaintiff has been
     d&gid   by this new railroad being lawfully built
     across the channel he was wont to use, but he is
     only one of many thousands who are being inaivid-
     ually damaged every day by the frequent lawful
     changes in the means and methods of manufacture
     and commerce, and yet cannot be said to be wronged
     by illegal acts."
     The Texas Supreme Court in Chicago, R.I.&G. Ry. Co. v.
Tarrant Co. Water Control &-Imp. Dist., 123 Tex. 432, 73 S.W.2d
55 (1934) at page 67 stated:
           "'Any proper exercise of the powers of govern-
     ment, which does not directly encroach upon the
     property of an individual, or distrub him in its
     possession or enjoyment, will not entitle him to
     compensation, or give him a right of action.
     ("Incidental damages to property resulting from
     governmental activities, or laws passed in the pro-
     motion of the public welfare, are not considered a
     taking of the property for which compensation must be
     made.") If, for instance, the State, under its power
     to provide and regulate the public highways, should
     authorize the construction of a bridge across a
     navigable river, it is quite possible that all pro-
     prietary interest in land upon the river might be
     injuriously affected; but such injury could no more
     give a valid claim against the State for damages,
     than could any change in the general laws of the State,
     which, while keeping in view the general good, might
     injuriously affect particular interests. . . .'I
      (Emphasis added.)
     Based upon the above authorities, it is, therefore, our
opinion that the Federal Government has a superior control of
navigable streams. It is also our further opinion that the
State, after approval by the Corps of Engineers, may construct
a highway bridge over a navigable stream and an upstream land-
owner, even if his access to the Gulf of Mexico is obstructed,
has no such right under the Constitution that he should be com-
pensated for any loss of access from his upstream property to
the Gulf of Mexico resulting from the construction of a highway
bridge. This opinion does not discuss whether the new bridge
would be sn aid to navigation. See Opinion No. C-340.




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    Hon. James A. Morris, page 5, Opinion No. C-370


                                   SUMMARY
                 The Federal Government has superior control
            of navigable streams.
                 The obstruction of access rights of an up-
            stream landowner to the Gulf of Mexico by con-
            struction of a highway bridge is not a taking of
            property under the Constitution of Texas because
            the loss of access is only an incidental damage
            and noncompensable.
                                        Yours very truly,
                                        WAGGONER CARR
                                        Attorney General of Texas




                                        Assistant Attorney General
        CRL:ca
        APPROVED:
        OPINION COMMITTEE:
        W. V. Geppert, Chairman
        Bill Osborn
        Grady Chandler
        W. 0. Shultz
        Arthur Sandlin
        APPROVED FOR THE ATTORNEY GENERAL
        BY: Stanton Stone




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