Hon. W. G. Woods,     Jr.           Opinion No. S-107
County Attorney
Liberty County                      Re:    Fishing rfghts of
Liberty, Texas                             the public in and
                                           along navigable rivers
                                          'bordered by Mexican
Dear Mr. Woods:                            land grants.
             Your request for an opinioi    of this   office       con-
tains    the following  specific questions:
              "1:  What Is the boundary line between
        state and rlparlan   ownership along the Trinity
        River where it is navlgable In fact as well as
        navigable  in flaw as defined in R.C.S. Art. 5302,
        and the land on each side of said river was
        granted during 1835 by the Supreme Government
        of Coahuila and Texas, such grants extending
        their boundaries   to the margin of said river?
              "2; What right,  if any, does the publi,c
        have to use the Trinity River and its bed and
        banks an-and   bars in the~area described  in
        the facts set out, to wit, where the river iies
        between two Mexican grants made In 1835?
              “3 : According to the facts above men-
        tioned, are those persons who reached the
        Trinity River by way of the dedicated right
        of way on either side of said river end then
        walk up and down the banks, the sand bars and
        in the bed of said river staying within the
        cut hanks and vegetation  lines,  trespassing
        within the purview of T.P.C. 13771
                                                               -
             ‘14: Can the ripar'lan owner legally   ex-
        tend his fences down into the river water,
        place posted signs on said fences,    and pre-
        vent the public crossing   such fences,  or other-
        wise obstruct  their travel up z:nd down the hed
        and bank of said river?
.   *




        Eon. W. G. Woods,    Jr.,   page 2 (S-107)


                    "5s Can the riparlan    who owns land on the
             north and south side of the dedicated right of
             way of State Highway T-105 on the east side of
             the Trinity River legally     tie his fences ofi the
             right-of-way    lint across such right-of-way       line
             into or to abut the state bridge which crosses
             the river In such a manner as to obstruct          the
             right-of-way    down to the river,   place slgne
             reading ‘Posted,     Private Property,   1po Hunting     -
             Fishing,‘.   and prevent the public from using
             the right of way?”
                    The extent and effect  of land grants made in
        Texas nrlor to the adontion of the common law must be
        determined-according   tb the rules of clvll   law. Miller
        v. Leteerich,   121 Tex. 248, 49 S.W.2d 404 (1932); State
                                                             --
        V.  Grubstake Inr. Ass’n, 117 Tex. 53 297 S.W.2d 202
        Tlg27).  Allen  v. West Lumber Co., 244 S.W. 499 (Tex.
        Comm.A;p.l922).
                   The line of demarcation betweea the stream bed
        and grants bordering the stream was establfahed     by the
        Supreme Court in Mot1 v. Boyd, 116 Tex. 82, 286 S.W. 458
        (19.23)) where the Court “adopted the same method for de-
        fining and marking the line between public and private
        ownership along the banks of a stream navigable accord-
        ing to the definition   of the statute ,$rticle  53Og as
        was used by the Supreme Court of the United States In de-
        fining and marking the boundary line between Texas and
        Oklahoma. ” Dlverslongy       Club v. Heath, 126 Tex. 129,
        86 S.W.2d 441, 44     1    1   In Oklahoma v. Tea,.   260
        U.S. 606,.631 (l&     , the ’Court held
             II. . . that the bank intended by the treaty
             provision   is the water-washed aad relatively
             permanent elevation    or acclivity at the outer
             line o? the river bed which separates the bed
             from the adjacent upland, whether valley or
             hill,   and serves to confine the waters within
             the bed and to preserve the course of the
             river,   and that the boundary intended Is on
             and along the bank at the average or mean level
             attained by the waters In the periods when
             they reach and wash the bank without overflow-,
             ing It.    When we speak of the bed we Include
             all of the area which is kept practically      bare
             of vegetation    by the wash of the waters of the
Hou. W. G. Woods, Jr.,   page 3 (S-107)


     river from year to year la their onward
     course, although parts of it are left dry
     for moathe at a time; aad we exclude the
     lateral   valleys which have the characterls-
     tics of relatively     fast land and usually--
     are covered by upland grasses and vegeta-
     tion, although temporarily      overflowed in
     exceptional    Instances when the river Is at
     flood.”

          Ia Mot1 v. Boyd, su ra, the above d~fiUt;lba
was said to be “consistent -5-i the Mexican OF Spanish
                           wit
law oa the subject .” (286 S.W. at 469.)         __
          The Texas Supreme Court In DivdrBPoii L%kh~Clbb
v. Heath, su ra    agala quoted approvingly from Oklahoma
                                                 -
V. Texaa as-9 fo lows:
           “The line was still    more definitely
     aad practically   deacrlbed in the report
     of the Commlsalonera, which was approved
     by the court,   in the following   language.
      “The boundary line is a gradient of the
     flowing water in the river.      It is located
     midway between the lower level of the flow-
     ing water that just reaches the cut bank
     and the higher level of it that just does
     not overtop the cut bank. I”
Other cases recognizing   and applying thla
State’v.  Bradford,  121 Tex. 515, 50 S.W.2d
Maufrala v. State, 142 Tex. 559, 180
          In &mtsii&rto’ your sacond questlbh;-the Supreme
Court la Diversion Lake Club v. Heath, supra, held that,
            “Because of the state’s    ownership of
     the beds of statutory     navigable   streama and
     of their banks up to the line aa above de-
     fined bradtent     l.in$~, the public may use
     their beds and banks up to such line for
     fishing.     Beyond that line,   unless the rule
     of civil    law la applied,  they have no right
     to go without the conseat of the riparlan
     laadowaer . ” (86 S.W.2d at 447.)
                                                         .   -
Hon. W. 0. Woods, Jr.,   page 4 (S-107)


          The court stated that It was not necessary la
that case  to decide, aad the court did not decide,     ‘whether
the rlghts  of the public to use the banks of streams In
this state  where the;r are bordered by grants made under
Spata$ah.or Mexican sovereignty   are in say respect dlffereat
              hts of the public herein de,termlned.”    (86 S.
               However, the court recognized  the civil   law
to be as follows:
            “With reference    to the civil  law, Fara-
     ham says: ‘By the civil      law the public uai”
     of the banks of a river was part of the law-
     of aatlons,    just as that of the river Itself .I
     Farnham’s Water aad Water Rights,       vol. 1, p.
     662.    One of the lawa of the Partidas-prov’idis:
     ‘And although the banks of rivers are, so far
     as their ownership Is concerned,       the property
     of those whose lands include them, nevertheless,
     every man has a rlght to use them, by mooring
     his vessels    to the trees, by repairing    his
     ships and his sails upon them, ‘amd by larldlng
     hle merchandise there; and fishermen have. the
     rl.ght to deposit their flab and sell them,
     aad dry their nets there, and to use sald banks
     for every other purpose like those which ap-
     pertain to the calling      and the trade by which.
     they live.’      Las Slete Partldati (C .C.B. 19 l),
     part III,   title XXVIII, law VI, p. 821.”        86
     S.W.2d at 447.)
           In State v. Grubstake IPV. Asa’n, 117 T&x: 53; 297
s.w.2d 202, 203 (1927)   the court said- that- the 'owner 'or rl-
parian laad granted by*Coahulla aad Texas in 1835 ‘acquired
title  to the river bank, yet such title  was burdermed with
certain servitudes .” The “servitudes”   are those set forth
In the portion of the Partldas quoted In Diversion    Lake Club
v. Heath, B.
            It is also made clear In Diversion   Lake Club v.
                                      h
Heath, supra, that the persona who reac
%ii&     set forth 1~ your third question are not trespassers
under Article    1377 of the Penal Code.  In that case the
fisherman “entered the waters of Diversion     Lake and. fished
in It by placing their boats Into the water from the low’
bridge on which the public road crosses the river and lake
near the upper end of the lake.’     (86 S.W.2d at 442.) The
court held that under such circumstances     they were not tres-
passers.
Hon. W. G. Woods, Jr.,    page 5 (S-107)


            The fence described      la your iifth  queetioa  is
a trespass   upon the highway right of way and Is in the.
exact position    relative    to the bridge aa the fence con-
demned in Cornellson       v. State, 49 S.W. 384 (Tex.Crim.App.
1899).   That this fence and the fences described         in your
fdurth question cannot be 80 maintained as to prevent
the public from gaining access to the river by means of
the highway right of way or to prevent them from going
up and down the river in boats and fishing         in its waters
ie likewise   settled    by Diversion Lake Club v. Heath, supra.

                            SUMMARY

              The.publlc    may use the bed and bank8 of
      the Trinity River up to the gradient boundary
      for fishing     and may make certain uses of its
      banks above that line if they are held under
      civil-law     grants.    The rlparlaa owners caeaot
      prevent the public from gaining access to the
      river by means of a highway right of way by
      erection     of a fence thereon and cannot prevent
      the public from going up and down the river
      in boats and fiahlng       In Its waters by the
      erection     of fences across the river.
APPROVED:                         Youra very truly,

Burnell Waldrep                   JaNBEN     SHEPPERD
Reviewer                          Attorney   General of Texas
Wlllls  E. Gre&am
Reviewer
Robert S. Trottl                     Mert Staraes
First Aeeistaat
Johr Ben Shepperd
Attorney General
