/l   (b
                                             OFFICE       OF

                               THE ATTORNEY GENERAL
                                           AUSTXN.    TEXAS
          Gerald C.      t&M

          !2&w~~ Y GENERAL




               Hon. Basoom Giles, Commissioner
               General Land Office
               Austin, Texas

               Dear Sir:                  Opinion No. O-5635
                                          Re: Should the State of Texas
                                                take a separate parcel of
                                                the river bed, or an un-
                                                divided Interest  therein,
                                                in the exoess of surveys
                                                crossing navigable streams,
                                                which have been validated
                                                by the %mall Land Billn?
                              In your letter of September 24, 1943, you-give   us
               certain     facts,  which may be summarized as follows:
                          You have been requested to patent two tracts of
               school land, which were surveyed across navigable streams.
               Awards were made more than ten years prior to the effective
               date of the “Small Land Bill”,      Acts of the 41st Legislature,
               1929, page 29g, Chapter 138, oodified      as Article  54&s,
               V. A. C. 5,   lhere is  excess   in  each survey,  but neither
               survey contains sufficient    acreage exclusive    of a portion
               of the river bed, therefore,    the awardees are entitled      to
               enough of the river bed to make up their awarded acreage.
                         Since the awardees are to get a portion of the
               river bed, you request our opinion upon the following:
               Should the State of Texas take a separate parcel of the
               river bed, or an undivided  interest therein?
Hon. Bascom Giles,    page 2


          You are respectively   advised that the State   of
Texas should take a separate parcel of the river bed,     ana
not an undivided interest   in the whole thereof.
            The Wnall Land Bill’l, supra, validated   all
patents to ana awards of lands lying across or partly aoross
water oourses or navigable streams and all patents and awards
cov$ring   and including the beds or abandoned beds of water
oourses or navigable streams or parts thereof,     which patents
or awards have been issued and outstanding for a period of ten
years from the date thereof and have not been o8ncelled      or
forfeited.
            No excess acreage is recognized   under this law.
State v. Bradford,    50 S. W. (26) 1055.   If the patent or
award is otherwise within the terms and provisions      of the
9mall Land Bill”,     but contains a number of acres of land in
excess of the amount of laud conveyed to the patentee or
awardee, the.question    arises as to how such excess is to be
apportioned.
            In the case of Heard, et al. v. Town of Refugio,
103 S, W. (2d) 728, involving   four leagues granted by Coahuila
and Texas to the Town of Refuaio.    and construing the eSmal1
Land Bill”,   supra, the court sali:
            ”         It is apparent that the act gave
     the Toin’o;   iefugio  title to ,that portion of the
     bed of Mission river within the bounds of the four
     leagues granted to the town, unless the tract granted,
     including   the river bed area, contains more than
     four leagues of land.       The seoond seotion of the aot
     oontafns a provision     that it shall not *relinquish  or
     quit-claim   any number of acres of land in excess,of
     the number of acres of land conveyed to said patentees
     or awardees in the original      patents granted by the
     State.’
           n. . . 0

           “The record oontains no evidence as to the
     number of acres within the boundaries of the four
     leagues of land surveyed for the Town of Refugio
Hon. Basoom Giles,   page 3


     In 1834, and the cause will be remanded to the
     distriot   oourt for asoertalnment of that faot.
     If it is found that the tract surveyed for the
     town in 1834 oontains,     including the river    bed,
     no more than four leagues of land, judgment will
     be rendered ln ravor of the defendant in error
     (whether the State of Texas beoomes or does not
     become a party to the suit) for the title        and
     possession    of the part of the land described
     in its petition    whioh Is a portion of the bed
     of the Mission river.      If the said traot surveyed
     for the Town of Refugio is found to contain,         ia-
     eluding the bed of the river, more than four
     leagues of land, judgment will be rendered dis-
     missing the cause, unless the State of Texas be-
     comes a party to the suit.       If the State of Texas
     becomes a party to the suit,       and it is round that
     the said tract surveyed for the town oontains,
     exclusive    of the river bed, as much as four
     leagues of land, judgment will be rendered in
     favor of the state ror the title       and possession
     of the river bed.      If the State of Texas becomes
     a party to the suit and it is found that the said
     tract surveyed for the town oontains,       exclusive
     of the river bed, less than four leagues of land,
     Judgment will be rendered. under nrober pleadim
     Eartitionina    the entire river bed within the said’       i
     tract surveyed    for the town in 1834 between the
     State of Texas and the Town of Refwio        in suoh
     manner
     number of acres of river bed area suffioient          t
                                    . The method of f i
                                    lver bed and the adjoining
     lands is stated in Mot1 v. Boyd, 1.16 Tex. 82, 109,
     286 5. W. 458, and in Diversion Lake Club v. Heath,
     126 Tex, 129, 141, 86 5. W. (2d) 441.”         (Emphasis
     added 1
           We believe   that when the oourt said, *partitioning
the entire ,river bed , , . between the State of Texas and the
Town of Refugio’,    it intended that the river bed should be
separate& and divided into parcels,    and that eabh should be
don.   Basoom Oiler,   page 4


vestetl with title     to a separate and specifio    part    thereof,
with the exclusive      right of possession  thereto.
            Trusting    that the above fully    answers your question,
we are
                                               Yours   very ‘truly

                                         ATPORNEY GENERAL OF !l!EXAS



                                          BY     (signed)
                                                 Those B. Duasn, Jr
TBD:fo: Jm                                                 Assistant
O.K. C.C.R.

APPROVEDNOV. 8, 1943
(signed)   Grover Sellers
FIRST ASSISTANT
ATTORNEY GENERAL
               i.




                                                           APPROVED
                                                       Opinion Committee
                                                           BY BWB
                                                           Chairman
