Honorable Wm. J.~Tucker

Game, Fish & Oyster Commission Austin, Texas
Dear Sir: OpinionNo. O-5915 Re: Validity of sale by Commissioner of the General land Office of 5420acres of land in Calhoun County,Texas, known as Green Lake, and jurisdictionofGame, Fish & Oyster Commission in relation thereto. Reference ismade to your request to thisDepartment for an opinionrelative to the validity of the saleby the Commissioner of the General Land Office of 5420 acres of land in Calhoun County,Texas, known as Green Lake, end the extent of the jurisdictionof the Game, Fish & Oyster Commission over this property.

From the Informationfurnishedus by the Commissioner of the General Land Office,as reflected by the records of his office, it is shown that Green Lakewas awarded to Elmer Yates on July 13, 1918, by reason of his application of the same date. The application to purchase and the award of July 13, 1918, were based on the application to the county Surveyor of Calhoun County for a survey,and the resulting survey of July 1, 2, 3 and 4, 1913, of 5420 acres known as Survey No. 1, Elmer Yates. The field notes and application for surveywere filed in the land office on July 23, 1913. Records in the land office show this property to be In the name of Mary Louise K. Bryan et the present time. Itwas leased for oil and gas to the Magnolia Petroleum Company onAugust 2, 1943.

When the request for this opinionwas received in this office, Itwas brought to the attention of the parties lnterested in the propertyby virtue of the 1918award. We later attended a conferencewhere the different questions involved were discussed. Mr. Tom Fletcher of the firm ofVinson, Elkins, Weems & Francis and Mr. R. T. Wilkinson, Jr. of the Magnolias Petroleum Companywere kind enough to submit a brief In support of their reasonswhy this sale ofGreen Lake should not be disturbed, and why the State could not now successfullyettack the sale.Hon. Wm. J. Tucker - page 2 o-5915

We have given this brief very careful study,and have considered Itwhile writing this opinion. While ourdiscussion of some of the pointsraised will be brief,we have nevertheless given them serious consideration.

Briefly, the followingpointswere raised in this brief, and all ere relevant to your opinionrequest:
' 1.. The statutesreferred to in the cage' of Welder v. State, 196 3. W. 868, did not prohibit the Commlssloner of the General Lend Office from sellingGreen Lake,

2. If the salewas prohibited in that Green Lakewas reserved from sale, then the salewas valldeted,by the subsequent enactment of the "SmallBill" (Art.5414e,V.A.C.S.)

3. That subsection 4 ofArticle 5329,V.A.C.S.when applied to this salewould be a bar to recovery in the event of suitby the State.

Generally and in connectionwith all the questions presented,we review the case of Welder v. State, supra,as we constder that case authority on most of the issues involved here.

In that cese the owners of the surveysbordering on Green Lake contended their boundary lines extended to the center of the lake. The State in order to determlne the ownership of the lake brought suit in trespass to try title against tha adverse claimants. Upon e trial inTravis County, judgment wes rendered in favor of the State. Upon appeal the findings of fact filedby the trial courtwere adopted by the Court of CivilAppeals. That part of the findings of fact consideredrelevant here are set out below:

11 '1 Green Lake, the subject of controversy in thls'case, is en inland freshwater lake, situated in Calhoun County, Tex., about 24 miles from Guadalupe river, and is situated in the valley of the Guadalupe river, the eastern portion of said lake bordering upon the foothillswhich mark the beginnlng of the upland. The lake isshallowat the margln, gradually becoming deeper for a distance of a few hundred feetwhere it ettatns itsmaximum depth, the remainder of the bottom of the lake being parctlcally level end the water being of en average depth et the ordinarywater stage of about 4 feet. On occasions of any~conslderebleoverflow of the Guadalupe river (which occurnot infrequently) the lake is filled by the floodwaters of the ., ,

Han: Wm. J. Tucker - page 3 o-5915

river, and this Is the main source of the renewal of itswaters. During times of large overflows the whole valley of the river to the foothills, including the lake and all of the surroundingcountry, is submerged. The lake contains, approximately6,000 acres of lend, end is about 13 miles in circumference.'
"'II. Green Lake has been used end isvaluable principallyas a watering place of stockbelonging to the owners of the surrounding lands. However, fish in considerablequantities have been taken from itand sold, and boats have been operatedupon It for the purpose of taking fish; and the lake is of some value as a fishingpreserve.'" This additional findIngwas made at the request of the eppellee:

I! Green-Lake I find that in Its ordinary condition

having a depth of 4 feet over the greeter part of thi lake, is susceptible of use for fishing,pleasure and commercialboats, providing the boats are of light draft." The appellate court in affirming the judgment of the trial court used the following language:

"Under the Law es it now exists in this State, Green Lake cannot be sold (R. 3. 3980) but is under the jurisdictionof the Game, Fish & Oyster Commissioner. (Art. 4021b)." WhFle it is true the appellate court said: "The issue in this case is notwhether the State could grant title to the land in the bed of a natural,permanent, freshwater lake, but has itdone so to Green Lake?" Nevertheless the findings of fact filed by the trial court and adopted by the appellate courtwere based on controverted issues materiel to the decision. It wes determined that Green Lake was e natural, permanent, freshwater lake, end because of this fact, and the finding of the appellate court that itwas e navigablebody ofwater, the Court of CivilAppeals held that the cells in the respective surveys indicatedan intentionto exclude the lake.

We consider es material the holding quoted above, that under the law then In existenceGreen Lake could not be sold. At least, itwas a judicial interpretationof the existing statutesby en appellate courtwhose decision on questions of boundarywes final. Article 1591,R. 3. 1911.Hon. Wm. J. Tucker - page 4 0-5915

It iswell settled that the Sovereign has the power to grant or convey the beds of publicwaters. It fs equallywell settled that the Sovereignmay reserve suchproperty from sale and dedicate its US8 to all Of the people. When there has been such a reservationby the Sovereign Itmay not be disregarded by its agents, and en attempted saleby the Land Commissioner under such circumstances,andwithout express-au-' thorlxatldn, is void. Roberts v.'T8rr811;101 Tex. 577, 110 3. W. 733; DeMerrit v. Roblson, 102 Tex. 358, 116 3. W. 796.

~Thequestlon then is,dld the statutesreferred to In theWelder opinion reserve Green Lake from sale?

In 1905, the 29th Legislature enacted Chapter 90, a portion ofwhich was codifLed intheRevised Statutes of 1911, as Article 3980. It is es follows:

"All the public rivers, bayous, lagoons, lakes, bays and Inlets in this State

. . . shall be, continue and remain the property of the State of Texas, except so far as their use shell be permittedby the laws of this State. 30 far es this use shallrelate to the fish and oyster industry,the State Game, Fish & Oyster Commissioner shall have jurisdictionand control thereof according to the authorityVested Inhim by the fish and oyster laws of this State. (Acts of 1905, p. 129)."
It is our opinfon that thisArticle expressed a definite policyw‘Lthrespect to reserving lakes from sale. In 1911 the 32nd Legislature enacted Chapter 68, using more definite language Ln this respect. Section 2 of Chapter 68 is as follows:

'Sec.2. Such of the freshwater lakes wlthin this State as may not be embraced in any survey ofprivate land shell not be so:d, but shallremain open to the public;

. . . It LS our opinion that the Acts quoted from above expressly reserved Green Lake from sale. TheseActs were in force and effect on July 13, 1918, when this propertywas awarded to Elmer Yates.

The s8COndpoint raised Iswhether ornot the sale of Green Lake, though Itmay have been made contrary to lawlr was validated by~~thesubsequentenactment of the "SmallBill , Article 5414a.

Sections lmd 2 of Article 5414a are as follows~.

Hon. Wm. J. Tucker - page 5 0-5915

“Sec. 1. All patents to and awards of lends lying across or partly acrosswater courses or navigable streamsand all patents and awards covering or including the beds OP abandoned beds of water courses or navigable streams or parts thereof, which patents or awards have been issuedand outstanding for a period of ten years from the date thereof and have not been cancelled or forfeited, are hereby confirmedand validated.
'Sec.~2. The State of Texas herebyrelinquishes, quitclaims end grants to patentees and S*'fardees

and their assignees all of the lends, ?nd~"mineralstherein contained~, lying ecross, or :mrtlg acrosswater courses or navigable streams, which lands ere included in surveys heretoforemade, and to which lands patents or awards have been issuedand outstanding for e period of ten gears from the date thereof and have not been cancelled or forfeited,

. . .'I
It is to be noted that this Act has reference to II...

....landslying across or pertly acrosswater courses or navigablo streamsend all patents and awards covering or including the beds or abandoned beds ofwater courses or navigable streams or parts thereof.

. e .I'The cases inwhich thisAct has been involvedhave had to do with the effect of the Act on survt?>-s

which crossed or pertly crossedwater courses or nevigoble streams.

II State v. Sradford, 121 Tex. 516, 50 3. W. 2 1065;Reard v. Town ofRefugio, 129 Tex. 349, 103 3. W. 2 728. The Act above referred to uses the termswater COUrS8 and navigable stream but no reference ismade to a lake. It is generallyrecognized by the authorities that the terms water course, navigable stream and lake have separateand distinct legal meanings. This is particularly truewith reference to the legaldistinction between e water course, navigable streamand a lake. A water course or navigable stream are so different in their physical chmacteristics from a lake, that the naming of the one, and omission of the other, in acts relating to the disposition of publ,ic land,will exclude the other. Hoef v. Short, 114 Tex. 501, 273 S.W. 785, 40 A.L.R. 733; Jones v. Lee, 43 N. W. 855;Nee Pee Neuk Club v. Wilson, 96Wis. 290, 71 N. W. 661; Restatement of the Law; Torts 841-843;DeMerrit v. Robison, 102 Tex. 358, 116 3. W. 796. Sec.

The propertyunder discussion here is a natural, permanent, freshwater lake. Itwas held inWelder v. State, supra, that the lines of surveysadjoining the lakedid not.’ .

Hon. Wm. J. Tucker - page 6 o-5915

CPOSS OP partly cross the lake. The Elmer Yates Survey No. onwhich the applicationand award of 1918was based, encom1, passed the lake and did not CPOSS It. If, since these original surveyswere made, the lake throughnatural processes of erosion has extended over the lines of these surveys the new lands thereby covered by the publicwaters of the lake has become State property. State v. Maufrals, Court of CivilAppeals opinion, 175 S. W. (2) 739, Supreme~~~Court opinion handed down on April 4, 1944, Motion for Rehearing overruled April 24, 1944; Manry v. Robison, 122 Tex. 213, 56 s. W. (2) 4,38; Diversion Lake Club v. Heath, 126 Tex. 213, 56 S. W. (2) 441. The "SmallBill" would have no application to this condition since it relates solely to surveywhich crossed water courses or navigable streams at the time the surveys were made, and not to water courses or publicwaters which have since the date of the orlginal survey flowed over or across the lines of surveys. Maufrais v. State, supra.

In our opinion the "Small.Bill"can have no possible application to the facts in this case.

The third point material in this discussion, and also raised in the brief, iswhether or not subsection 4 of Article 5329would be effective to bar recovery by the State in the event of suit.

The relevant part of Article 5329 is as follows:
"No salemadewithout condition of settlement shallbe questioned by the State or any person after oneyear from the date of sale,"
In ourdiscussion under the first point in this opinion, we held that the sale ofGreen Lakewas not authorizedby law and that this propertywas express1.y reserved from sale. Under our construction of theActs referred to herein, and as interpreted in theWelder ease,we think the Supreme Court in the case of Callahanv. Giles, 137 Tex. 571, 576, :55 S.W. (2) 793, states the rule of law thatdetermines the effect of the one year statute es applied to the facts in this instance, In that case the Court held:

"Wedo hold, however, that all sales of public!school land must be authorized by law. As to any ssle of public school land neither authorizedby lew nor made under co'lorof law, the one year statute of limitationsabove cited would not apply." Summarizing the questions discussed herein, it is ourHon. Wm. J. Tucker -page 7 o-5915

opinion that Green Lake at the time of the award in 1918was reserved from sale; that the "SmallBill" Iswholly inapplicable to the facts presented here; that the one year statute of limitationswill not operate to defeat recovery of this property by the State.

We accordinglyadvise you that it is the opinion of -. this department that theAct of the Commissioner of the General Land Office in awardingGreen Lake to Elmer Yates in 1918 is void, and of no force or legal effect.
Yours very truly
ATTORNEY GENERAL OF TEXAS

By s/JackW. Rowland JackW. Rowland Assistant
JWR:bt:wc
APPROVED SEP 21, 1944 s/Grover Sellers ATTORNEY GENERAL OF TEXAS Approved Opinion CommitteeBy s/BWB Chafrman