,’

,'Nonorable'Ray

Winder ney :County~

Attor C,ooke County Gainesville.

Texas

DearSIr: opinionNO. o-6579- Re: Whether that part of ~:gil;e Texoma,into whichBl.ckory Creek flows is "apublic body of surface water (3f this State','

within the meaning ofArticle @8b, Vernon'8Annotated Penal 'Code,prohibitingpcllution of public bodies cf surface'water.

This will acknowledge receipt of your letter dated May 9, 1945, requestingfanopinion of this departmentwhich reads in part as follows:

," Reference is had toArticle 698b, PenalCode of the State of Texas, on the subjeot of pollution of public bodies of surfacewater in Texas.

II

. . . . %ickory Creek is situated in theWalnut Bend Oil Field area of Cooke County. It ia a small creek: often dry, but when it ,rainsthere is sometimes considerablewater flowing through it. This creek flows into Texoma Lake and I understand this Lake is owned by the Federal Government. There is no stream or other body of water flowing intoHickory Creek, but
as aforesaid,Hickory Creek flows into said La'ke Texoma.

"Inview of then

definition of 'publicbody of surface water of this State', set forth In Sec. 3 c;f aaid~Act,and the fact thatHickory Creek is not subject to overflow from or into a stream, which Is the property of the State of Texas
or any subdivision thereof, and due to the fa~ct that saidHickory Creek overflows into- ..

Honorable Ray Winder, page 2 (0-6579)

Lake Texoma, which is understood to be the property of theUnited States and not the' property of the State of Texas or any subdlvision thereof,your opinion Is desired as to whether pollution ofHickory Creek is an offense under said law.

"In this connectionyour attention Is invited to Article ,4444,Revised Civil Statutes of Texas, authorizlnp injunctionagainstpersons, corporations,etc., to prevent further polluting of public waters.

"It la the opinion of the writer that by
reason of the peculiarwording of Sec. 3,Article 698b, PenalCode, no offense is committed by reason of the pollution ofHickory Creek in Cooke County, and that the only remedy available for suchpollution in this particularcase is by injunctionunder the provisions ofArticle 4444, Revised Civil Statutes, which the case of Goldsmith & Powell vs. State, 159 S.W. (2) 534, error refused, holds may be granted without a prior conviction under the Criminal Statute. II II

. . . *

Article 698b,Vernon'sAnnotated Penal Code, reads in part as follows:

II

. . . .
"'Sec.2. 'Pollute'is hereby defined to be the throwing,discharging,or otherwisepermitting to reach or to be introduced into any public body of surface water of this State any substance, material or thing In such 'quantitythat the said water is thereby rendered unfit for one or more of the beneficial uses for which such water was fit or suitableprior to the introductionof such substance,material or thing, or is thereby rendered harmful to public health, game birds,
or game animals, fish or other edible aquatic animals, or endangers any wharf, or endangers or hinders the operation of any boat, or renders insanitary or unclean any bathing beach.Honorable Ray Winder, page 3 (0-6579)

“Sec. 3. The term 'publicbody of surface water of this State' shall Include all surface creeks, rivers, streams,bayous, lagoons, lake? and bodies of surfacewrtersthat are fedby a stream or.are subject to overflow from or into
a stream which are the property of the State of Texas or any subdivisionthereof,and all portions of the Gulf ofMexico within the gulfward boundary of the State of Texas and all inland waters of the State of Texas in which the tide ebbs and flows

. . . .'

We usually accept the facts stated in an opinion request as the basis of our opinion. However, as a constitutional officer, theAttorney General, like the Courts, is bound to take notice of the territorialextent of the jurisdiction exercisedby the governmentwhose lawshe administers. Accordingly, we must inquire intoyour statement that Lake Texoma "is ownedby the Federal Government". Since the United States is a sovereign, the extent of the territorial jurisdiction of Texas is involved in the question.

We accept your statement "thatHickory Creek is not subject to overflow from or into a stream, which is the property of the State of Texas or any subdivision thereof." Section 3 ofArbicle 698b provides,however, that "The term 'publicbody of surfacewater of this State' shall include all

... lakes

...thatare fed by a stream or are subject to overflow from

...astream which are the property of the State of Texas

.....'IThis statute does not provide that the "lakes" be "theproperty of the State of Texas" but merely that the stream which flows into the lake be "theproperty of the State of Texas." However, ifTexas has no jurisdictionover that part of Lake Texoma into whichHickory Creek i'lows and if that part of the Lake is,exclusivelgwithin the jurisdictionof the United States, the:$ower ofTexas to denominate such a lake
a "public ,bodyof surfacewater of this State" might well be questioned. Your opinion request, therefore,raises two questions: first, whether or not Kickory Creek, as a stream, is "theproperty of the State of Texas" and second,whetheror not that part of Lake Texoma into whichHickory Creek flows is a public body of surfacewater of this State."

In passing on the first question, it is not necessary to determine who owns the bed ofHickory Creek. If that streamhas an average widt=f 30 feet from its mouth up to any given point, such portion of the bed of the stream is the property of the State of Texas. 34 Texas Jurisprudence 86. Article 5302,V. A. C. S. The State's ownership of the bed of statutorynavigable streamswhich are crossedby the linesHonorableRay winder, page 4 (O-6579)

of the original survey,was relinquishedby Article 5414a V. A. C. S. to the extent necessary to make up the acreage called for in the original grant or patent. State vs.Bradford, 121 Tex. 515, 50 S. W. (26) 1065; Heard vs. Town of Refugio, 129 Tex. 349, 103 9. W. (2d) 728. But regardless of who owns the bed ofHickory Creek, we are of the opinion that the waters of the creek are the property of the State.

Article 7467,V. A. C. S. provides In part:

"The waters of the ordinary flow and underflow and tides of every flowingriver or natural stream, of all lakes,bays or arms of the Gulf ofMexico, and the storm, flood or rain waters ofevery river or natural stream, canyon, ravine, depressionor watershed,wlthin the State of Texas, are hereby declared to be the property of the State, and the right to the use thereofmay be acquiredby appropriation in the manner and for the
uses and purposeshereinafterprovided, and may be taken
or divertea fromits natural channel for any of the purposes expressed in this chapter.

. . .'

In construing this statute, the Supreme Court in Turner vs. Big Lake Oil Co., 128 Tex. 155, 96 S. W. (2d) 221, at page 228 said:

"The contentionhere is that this article, particularly the italicizedwords,makes the water from rainfallwhile on the watershed, or in ravines and draws, and while it is still regarded in law and fact as surfacewater, and before it has reached a riparlan or public stream.public waters, the pollution of which is prohibitedby positive enactment.

"The statute is capable of this construction if it alone were to be looked to for itsmeaning. It must he interpreted,however, in the light of the Constitution and of the common law andMexican Civil law under which landshave been granted %n this State. Miller v. Letzerich, 121Tex. 248, 49 S. W. (2d) 404, 85 A.L.R. 451.

'bnderboth the common law and the Mexican civil law, the owners of the soil on which rains may fall and the surfacewaters gather are the proprie'tors

of the water so 1.ong as it remains On their land, and prior to it? passage into a natural water course to which riparian rights may attach. Farnham onWater Rights, vol. 3 .!883, and casesHonorable Ray Winder, page 5 (O-6579)

cited in 49 S. W. the note;Miller v.

(2d)404, 85 A.L.R. Letzrich, 121Tex. 248, 451; Hall's Mexican Law 254 256, (1865) p. 402, 8 1372.

"No citation of authority is necessary to demonstrate . that the right of a laridowner to the rainwater which falls onhis land is a property right which vested In him when the grant was made. Being a property right, the Legislature is without power to take it fromhim or to declare it public property and subject by appropriation or otherwise to the use of another. This Is
so regardless of the question as to whether the grant was made by Texas orMexico. Miller v. Letzerich, 121Tex. 248, 49 5.W. (2d) 404, 85 A. L. R. 451.

. a”

You have not given us many facts as toHickory Creek but from the facts thatyou give us we believe that underTexas decisions it is clearly "anatural water course to which riparian rights
mav attach." 44 Tex. Jur. 14. 17. Miller vs. Letzerich. 121Tex. ~?&, 49 S. W. (26)~ 404, 85 AiL.R'.451; Mot1 v. Boyd, lljTex. 286 S. W. 458. Hoefs,V. Short, 114 Texi.501, 273 S. W. 785. 40 82,

A. L. R. 833;*InternationalGieat Horthern &. &. vs. Reagan, 121 Tex.'233, 49 S. W.,(2d) 414. In Hoefs vs. Short, suprattthe Supreme Court held thatBarilla Creek In Reeves County is a stream to which lrrigable rights attach." The Court in that case said:

$1

. . . . "These authoritiesand otherswhich follow show that, while the rule as ordinarily expressed is that a water course must have a well-defined channel,bed, and banks,yet there may be instanceswhere these are slight, imperceptible,or absent, and still a water course exist.

"All authorites agree that a current of water Is necessary,yet the flow of water need not be continuous,and the streammay be dry for long perj~ods9f time. Authorities

. 1 K nney ::t"t;aid.)

4 on Irrigation B 307; Angel1 onWater Courses 4, 27 Ruling Case Law, pp 1063, 1066, 1067.

"Mr. Kinney, in the text cited (section 307), says:

'Thosewho are acquaintedwith the streamsand water
courses of the arid Roclq Mountain region of this country, draining as they do to steep,mountainous areas, with their swift currents running over gravellyand rocky bottoms, know that often in the dry summermonths many of them are entirely drg, at leastupon the surface. All of them, nevertheless, have well-definedbeds, channels,banks, and currentsof water, at least the greater portion of theyear, and are In every regpectwater courses to which water rightsmayHonorable Ray Winder, page 6 (O-6579)

attach. But it would be plainly impracticablein this western part of the countr:: to require that, in order to constitutea water course upon which rights may attach, theremust be a continuous,uninterrupted,and perennial flow of water during the entire year, and from year to year. Hence the requirement of the law is that In order to constitute a water course the stream need not flow all of the time.'

"Thegeneral rule is that ravines, swales, sloughs, swamps and marshes are not water courses, and yet they are somet imfe. "Again, it is sometimes said that, in order to constitutea water course, there must be somethingmore than mere surface drainage over the entire face of a tract of land, occasionedby unusual freshets or other extraordinary causer. The authorities say that this is true in its strict sense,but that surfacewatermay collect from such a large drainage area and be so continuous in its flow as to constitutes water
course. 1Kinney on Irrigation, 3 306, 312, 314, 315, 317; 27 Ruling Case zaw, p. 1063.

. . .'

It it a fact question as to whetherHickory Creek is
a "natural stream"within the meaning ofArticle 7467 and this
can be determinedas a matter of lawby proof of the extent of the water shed it serves, the character of its bed and banks, the length -nd width of the streamand the volume and frequency of its flow. The court? will take judicialknowledge of as many of these facts of the natural features of the State as it
can obtain from reliable hourcez but it is well to make such facts readily accessibleby proving them in the trial. Hoers
vs. Short, aupra, InternationalGreatNorthern R. Co. vs. Reagan, eupra.

In Goldsmith& Powell, et al, vs. State, 159 S. W. (2d) 534, cited in your opinion request, the court said:

"Thewaters of all natural streams of this State and of all fish and other aquatic life contained in fresh water rivers,creeks, streamsand lakes, or sloughs subject to overflow from rivers
or other streamswithin the borders of this State,
are declared to be the property of the State; and the Game, Fish and Oyster Commissionerhas jurisdiction over and control of such rivers and aquatic life. Arts. 4026 and 7467 R.C.S. The ownership is in trust for the people (Hoefev. Short, 114Honorable Ray Winder, page 7 (O-6579) i.:

Tex. 501, 273 S.W. 785, 40A.L.R. 833); and pollution of streams and water cour3e3 Is condemnedby both the civil statute@. Art. 4444 andVernon'e Annotated PenalCode Prta. 697, 698, andArt.

The Constitution of Texae Art. 16 @zEz:Vernon'3 Ann. St deaLgnater(ki:rlvers and rtrenm3 a3 naturalre3Zrce3, declare3 that such belong to the State, and expressly invests the Legislature with the preservationand coneervation of 3uch resources

. . ."

We, therefore, conclude that the water3 of Rlckorg Creek are "propertyof the State of Texas" m the meaning ' of Section 3 ofArticle 698a, V. A. P. C.

The secondquestion Involved in your inquiry is whether or not that part of Lake Texoma into whichHickory Creek flow3 is a "publicbody of surfacewater of this State." We 3re concernedhere with the question of the territorial

limLt3 of the State ?nd if any part of Lake Texoma is subject to the political jurisdictionof Texas, whether or not that part of the lake 13 navigable in fact.

In Oklahoma vs. Texas, 258 u. s. 574, 42 sup. ct. 406, 66 L. Ed. 771, the SupremeCourt held that no part of Red River in Oklahoma is navigable in fact and a3 a ncn-navlgable 3tream the ownership of the bed remained in theUnFted State3 qnd did not pa33 to the State of Oklahoma upon the admlssion of thatState into the union, onNovember 16, 1907. In other opinion3 In the 3ame ca3e the SupremeCourt fixed the boundary cf Texa3 a3 the foot of the TexasBluff3 on the South bank of Red River or on and along the cut bank of the river on the south side "at the mean level of the water when it waahea the bank without overflowing it." 252 U. S. 372, 40 Sup. Ct. 353, 64 L. Ed. 619, 260 U. S. 606, 43 Sup. Ct. 221, 67 L. Ed. 426. The North boundary of Texa~a wa3 fixed and marked pureuant to the aeveral decision3rendered in Oklahoma v3. Texas and such boundary ia the presentboundary of Texas. Texas atillha3 jurizdictionover that part of Lake Texoma within it3 pre3ent boundaries,unlese it ha3 loat it3 jurisdictionby a deed of c?aaion to theUnited States.

When the Federal Government constructed the dam at Denison, the water3 of Red River which were impoundedby the dam covered the line which had been marked a3 the boundary of Texaz

. When the water3 of Lake Texoma reach the spillw3y, (an elevation of 640 feet) they will inundate 41,000 acre3 of land in Texas, Hickory Creek 1.n Cooke County flow3 into this part of theLake. Our inquiryhere Is whether thl.3 part of Lake Texoma i.3 part of the State of Texas and subject to its pollti-Honorable Rag Winder, page 8 (o-6579)

cal jurisdiction.

The case of Curry va. State, 12 9. W. (2d) 796 is declcive of thle question no far aa your inquiry la concerned. In that case, the appellantwa3 convicted of the offense of unlawfully seiningwithin certainprohibitedwater3 in Nueces County. It was shown that the offense wa3 committedwithin theUnited State3 reservationat PortAranaa3, Texas. "This land on the date of the alleged offense wa3 shown to be a United State3 Military reservation, in use a3 such and being in the actual custody and control of the War Department of theUnited States Government." In a well reasoned opinion theCourt of CriminalAppeal3 affirmed the convictionand held that Texashad
nearerlost jurisdictionover the land 3Ftuated in the reservirtlon. The Court pointed out that "thereis neither constitutional nor statutory inhibitionagain3t ownership of landby theUnited State3 government Fn Texas" but it held that the only mean3 by which the United State3 governmentcould acquire constitutional jurisdictionover the land 30 acquired, to the exclusion of Texas jurisdiction,wa.s by procuring a deed of cession from the Governor ofTexas, pursuant to Article 5247 V.A.c.s. The court in that case took judicialnotice of the fact that no deed or ceasionhad been made to the land included in theUnited State3 re3ervationat PortAranaaa.

We have examined the record3 of the office of the Secretary of State and fFnd no deed of cession to the land in Texas which ie presently coveredby the water3 of Lake Texoma. That part of the Lake i3 therefore at111 subject to the jurladiction of the State of Texa3. Fort LeavenworthR. Co. vc.bwe, 114U. S. 525. 5 Sup. Ct. 995, 29 L. Ed. 264, Surplus Trading Company vs. Cook, 309 U. S. 104, 60 s. ct. 436, 84 L. Ed. 603.

There 3tillremain3 the question of whether or not that part of Lake Texoma which ia subject to the political jurirdictlon of Texas 13 "apublicbody of surfacewater". In Texas, the question of whether a lake is a public or privatebody of water is determinedby whether or not it ia navigable in fact. Welder v3. State, 196 S. W. 868, error refused;Taglor~Fishing Club vs. Hammett, 88 5. W. (2d) 127, error diamizsed. This is the rule at common law and the rulewith reference to public waters of theUnited States. United State3 v3.Halt State Bank, 270 u. S. 49, 46 sup. Ct. 197, 70 I,. Ed. 465; yr;in ;J~ Jordan, 140 0. 9. 371, 11 5. ct. 808, 838; 35

. . . From the data available to us it appear3 that the reservoir of Lake Texoma ia the 3ixth large3t In theUnlted State3 and V& the lake is full it will have Inundated 26,000 acre3 in Texas969,000 acre3 in Oklahoma. This total3 approximately 140 squaremiles. This ia based on elevation at 617 feetwhich i3 the normalpool. At elevation of 640 feetHonorable Ray Winder, page 9, (O-6579)

.” (spillwaycrest), reservoir will inundate 41,000 acres **in** Texas and 105,000acres in Oklahoma for approximately 220 squaremilea. It appears that Lake Taxoar,is a navigable lake in fact and In the authoritiesaJove cited. Welder v3. State, aupra, nited States v3.Holt StateBank, supra.

We assume that the Federal Governmenthas purchased from the various owners thereof all of the landpresently covered by that part of Lake Texoma which is situated in Texas. The fact of ownership of this land In a proprietary capacity does not, under State law, destroy the public character of the water which overlays the land. DiversionLake Club vs. Heath, 126Tex. 129, S 6 S. W. (2d)441. In that ca3e the fact3were that a dam was constructedacross theMedina River causing the waters of the river to formDiversionLake which covered the land3 owned by the Diversion Lake Club. The Club contended that it was a private and not a public lake and that the publichad
no right to fish in it. In holding that the watera of the lake
were public waters, the Supreme Court said:

"Plaintiffin error insists that, even if defendant3 in error shouldbe accorded the right to fish in the water3 of the lake above what waz the bed of the river, theywould in no event he entitled to fish in that part of the water above 30 much of the bed of the 1a':e a3 is ownedby plaintiff in error. This position

Is untenable,because the water of the lake, notwithstanding the fact that most of ik3 bed is privately owned, 13 stillpublic water. It is a part of the flood water ofMedina river which the irrigation companyha3 the right to impound and divert for irrigation. The permit acquiredby the irrigatFoncompany carried with it the incidentalright to cotztructand maintain the dam and the lake. It gave no title to the water, but nnly the right to divert and use 30 much of the water appropriateda3 might be necessarilyrequired when beneficiallyused for the purposr for which it wa3 appropriated. R. 5. 1925, arts. 7467, 7468, 7473, 7476, 7492, 7515 and 7543;Mot1 v.Boyd, 116Tex. 82, 125, 126, 286 S. w. 458. It gave no title to the fish in the water of the lake, no exclusiveright to take the flab from the lake, and no right to interfere with the public Ln their use of the river and its water3 for navigation, fishing,and other lawful purposes further than interferencenecessarilyresulted from the constructionand maintenance of the dams and lake3 in zuch manner a3 reasonably to accompli3h the purpose of the appropriation.HonorableRay Winder, page 10 (O-6579)

"Whenthe Irrigationcompany, plaintiff in error'spredecessor in title, constructedthe dam across the rLver, it causedby its voluntary act the flood wateraof the river,public waters, to spread over the land which it had acquired, submerpingand in effect destroyinga portion of the river bed, and gFving to the public waters a new bed. This artificial change tn 'ha river and its bed did not affect the public nature of the waters and did not take away the right of the public to uze them for fishing. Dcuglaa v. Bergland, 216 Mich. 380, 185N.W. 819, 20 A.L.R. 197;Mendota Club v.Anderson, 101Wia. 479, 78 N. W. 185; Pewaukeev. Savoy, 103Wia. 271, 79 N.W. 436, 50 L.R.A. 836, 74Am. St. Rep. 859; 27 R.C.L. p. 1205, S 122.

. . ."

There Fs no questionhere of any conflictbetween State and Federal regulationswith reference to the use of the waters of Lake Texoma. We hold only that until a deed of cession is made by the Governor of Texas to theUnited States ceding the land in Texas coveredby the waters of Lake Texoma, that such waters constFtutea "publicbody of ourfacewater of this State."

We are, therefore, of the opinion that the pollution ofHickory Creek Fe an offense underArticle 698a,Vernon's Ann. PenalCode.

APPROVED JUN 4, 1945 Yours very truly,
/i/ Grover Sellers ATTORNEY GENERAL OF TEXAS

ATTORNEY GENERAL OF TEXAS

APPROVED OPINION COMMITmEE g.&!$~ By /s/Fagan Dickson Fagan Dickson Asaiatant

FD:rt-dhs