Honorable Wm. J.~Tucker 

Game, Fish & Oyster Commission 

Austin, Texas 

Dear Sir: Opinion No. O-5915 

Re: Validity of sale by Commissioner of the General land 

Office of 5420 acres of land 

in Calhoun County, Texas, 

known as Green Lake, and jurisdiction of Game, Fish & 

Oyster Commission in relation 

thereto. 

Reference is made to your request to this Department 

for an opinion relative to the validity of the sale by 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 jurisdiction of the Game, Fish & Oyster Commission over 

this property. 

From the Information furnished us by the Commissioner 

of the General Land Office, as reflected by the records of his 

office, it is shown that Green Lake was 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 survey were 

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. It was leased for oil 

and gas to the Magnolia Petroleum Company on August 2, 1943. 

When the request for this opinion was received in this 

office, It was brought to the attention of the parties lnterested in the property by virtue of the 1918 award. We later 

attended a conference where the different questions involved 

were discussed. Mr. Tom Fletcher of the firm of Vinson, Elkins, 

Weems & Francis and Mr. R. T. Wilkinson, Jr. of the Magnolias 

Petroleum Company were kind enough to submit a brief In support of their reasons why this sale of Green Lake should not 

be disturbed, and why the State could not now successfully ettack the sale. 
Hon. Wm. J. Tucker - page 2 o-5915 

We have given this brief very careful study, and have 

considered It while writing this opinion. While our discussion 

of some of the points raised will be brief, we have nevertheless given them serious consideration. 

Briefly, the following points were raised in this brief, 

and all ere relevant to your opinion request: 

' 1.. The statutes referred to in the cage' of Welder v. 

State, 196 3. W. 868, did not prohibit the Commlssloner of the 

General Lend Office from selling Green Lake, 

2. If the sale was prohibited in that Green Lake was 

reserved from sale, then the sale was valldeted,by the subsequent enactment of the "Small Bill" (Art. 5414e, V.A.C.S.) 

3. That subsection 4 of Article 5329, V.A.C.S. when 

applied to this sale would be a bar to recovery in the event 

of suit by the State. 

Generally and in connection with 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 surveys bordering 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 in Travis County, judgment wes rendered in favor of the State. Upon appeal the 

findings of fact filed by the trial court were adopted by the 

Court of Civil Appeals. That part of the findings of fact 

considered relevant here are set out below: 

11 '1 Green Lake, the subject of controversy 

in thls'case, is en inland fresh water 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 foothills which mark the 

beginnlng of the upland. The lake is shallow at the 

margln, gradually becoming deeper for a distance 

of a few hundred feet where it ettatns its maximum 

depth, the remainder of the bottom of the lake 

being parctlcally level end the water being of en 

average depth et the ordinary water stage of about 

4 feet. On occasions of any~consldereble overflow 

of the Guadalupe river ( which occur not infrequently) the lake is filled by the flood waters of the 

. 
, , 

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

river, and this Is the main source of the renewal of 

its waters. During times of large overflows the 

whole valley of the river to the foothills, including 

the lake and all of the surrounding country, is 

submerged. The lake contains, approximately 6,000 

acres of lend, end is about 13 miles in circumference.' 

"'II. Green Lake has been used end is valuable 

principally as a watering place of stock belonging 

to the owners of the surrounding lands. However, 

fish in considerable quantities have been taken from 

it and sold, and boats have been operated upon It 

for the purpose of taking fish; and the lake is of some 

value as a fishing preserve.'" 

This additional findIng was 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 commercial boats, 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 jurisdiction of the Game, Fish 

& Oyster Commissioner. (Art. 4021b)." 

WhFle it is true the appellate court said: "The issue 

in this case is not whether the State could grant title to 

the land in the bed of a natural, permanent, fresh water lake, 

but has it done so to Green Lake?" Nevertheless the findings 

of fact filed by the trial court and adopted by the appellate 

court were based on controverted issues materiel to the decision. 

It wes determined that Green Lake was e natural, permanent, 

fresh water lake, end because of this fact, and the finding of 

the appellate court that it was e navigable body of water, the 

Court of Civil Appeals held that the cells in the respective 

surveys indicated an intention to exclude the lake. 

We consider es material the holding quoted above, that 

under the law then In existence Green Lake could not be sold. 

At least, it was a judicial interpretation of the existing 

statutes by en appellate court whose decision on questions of 

boundary wes final. Article 1591, R. 3. 1911. 
Hon. Wm. J. Tucker - page 4 0 -5915 

It is well settled that the Sovereign has the power to 

grant or convey the beds of public waters. It fs equally well 

settled that the Sovereign may reserve such property from sale 

and dedicate its US8 to all Of the people. When there has 

been such a reservation by the Sovereign It may not be disregarded by its agents, and en attempted sale by the Land Commissioner under such circumstances, and without 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. 

~The questlon then is, dld the statutes referred to In 

the Welder opinion reserve Green Lake from sale? 

In 1905, the 29th Legislature enacted Chapter 90, a 

portion of which was codifLed inthe Revised 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 permitted by the laws of 

this State. 30 far es this use shall relate to the 

fish and oyster industry, the State Game, Fish & Oyster 

Commissioner shall have jurisdiction and control thereof according to the authority Vested In him by the fish 

and oyster laws of this State. (Acts of 1905, p. 129)." 

It is our opinfon that this Article expressed a definite policy w‘Lth respect 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 fresh water lakes 

wlthin this State as may not be embraced in 

any survey of private land shell not be so:d, 

but shall remain open to the public; . . . 

It LS our opinion that the Acts quoted from above expressly reserved Green Lake from sale. These Acts were in 

force and effect on July 13, 1918, when this property was awarded to Elmer Yates. 

The s8COnd point raised Is whether or not the sale of 

Green Lake, though It may have been made contrary to lawlr was 

validated by~~the subsequent enactment of the "Small Bill , 

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 across water courses or 

navigable streams and 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 issued and outstanding for a period of ten years from the date 

thereof and have not been cancelled or forfeited, 

are hereby confirmed and validated. 

'Sec. ~2. The State of Texas hereby relinquishes, quitclaims end grants to patentees and 

S*'fardees and their assignees all of the lends, 

?nd~ "minerals therein contained~, lying ecross, or 

:mrtlg across water courses or navigable streams, 

which lands ere included in surveys heretofore made, 

and to which lands patents or awards have been 

issued and 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... 

. . ..lands lying across or pertly across water courses or navigablo streams end all patents and awards covering or including the beds or abandoned beds of water courses or navigable 

streams or parts thereof. . e .I' The cases in which this Act 

has been involved have had to do with the effect of the Act 

on survt?>-s which crossed or pertly crossed water courses or 

nevigoble streams. 

II 

State v. Sradford, 121 Tex. 516, 50 3. W. 

2 1065; Reard v. Town of Refugio, 129 Tex. 349, 103 3. W. 

2 728. 

The Act above referred to uses the terms water COUrS8 

and navigable stream but no reference is made to a lake. It 

is generally recognized by the authorities that the terms 

water course, navigable stream and lake have separate and distinct legal meanings. This is particularly true with reference 

to the legal distinction between e water course, navigable 

stream and 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, 

96 Wis. 290, 71 N. W. 661; Restatement of the Law; Torts 

841-843; DeMerrit v. Robison, 102 Tex. 358, 116 3. W. 796. 

Sec. 

The property under discussion here is a natural, permanent, fresh water lake. It was held in Welder v. State, 

supra, that the lines of surveys adjoining the lake did not 
.’ . 

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

CPOSS OP partly cross the lake. The Elmer Yates Survey No. 

on which the application and award of 1918 was based, encom1, 

passed the lake and did not CPOSS It. If, since these 

original surveys were made, the lake through natural processes 

of erosion has extended over the lines of these surveys the 

new lands thereby covered by the public waters of the lake has 

become State property. State v. Maufrals, Court of Civil Appeals 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 "Small Bill" would have no application to this 

condition since it relates solely to survey which crossed 

water courses or navigable streams at the time the surveys 

were made, and not to water courses or public waters 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, is whether or not subsection 4 of Article 

5329 would be effective to bar recovery by the State in the 

event of suit. 

The relevant part of Article 5329 is as follows: 

"No sale made without condition of settlement shall be questioned by the State or any 

person after one year from the date of sale," 

In our discussion under the first point in this opinion, 

we held that the sale of Green Lake was not authorized by law 

and that this property was express1.y reserved from sale. Under 

our construction of the Acts referred to herein, and as interpreted in the Welder ease, we think the Supreme Court in the 

case of Callahan v. Giles, 137 Tex. 571, 576, :55 S.W. (2) 793, 

states the rule of law that determines the effect of the one 

year statute es applied to the facts in this instance, In that 

case the Court held: 

"We do hold, however, that all sales of 

public! school land must be authorized by law. 

As to any ssle of public school land neither 

authorized by lew nor made under co'lor of law, 

the one year statute of limitations above cited 

would not apply." 

Summarizing the questions discussed herein, it is our 
Hon. Wm. J. Tucker - page 7 o-5915 

opinion that Green Lake at the time of the award in 1918 was 

reserved from sale; that the "Small Bill" Is wholly inapplicable to the facts presented here; that the one year statute 

of limitations will not operate to defeat recovery of this 

property by the State. 

We accordingly advise you that it is the opinion of -. 

this department that the Act of the Commissioner of the General 

Land Office in awarding Green Lake to Elmer Yates in 1918 is 

void, and of no force or legal effect. 

Yours very truly 

ATTORNEY GENERAL OF TEXAS 

By s/Jack W. Rowland 

Jack W. Rowland 

Assistant 

JWR:bt:wc 

APPROVED SEP 21, 1944 

s/Grover Sellers 

ATTORNEY GENERAL OF TEXAS 

Approved Opinion Committee By s/BWB Chafrman