HonorableJ. R. Singleton

ExecutiveDirector Texss Parks and WildlifeDepartment John H. Reagan Building Austin, Texas 78701 Opinion No. M-465

Dear Mr. Singleton: Re: Requirementsfor Permit to dredge bay materials in Qulf area alleged to be privately owned.
Your request for our opinion sets out the following questions:
1.

2.

3.

4. When a bay bottom Is shown to be privately-owned property, is a permit from the Parka and Wildlife Departmentrequired before bay bottom materials can be taken? If a permit is requiredSor removal of bay bottom materials from privately-owned bay bottoms, Can our Departmentmake a charge for the material removed?
Can the burden of proof as to the private ownership of a bay bottom area be placed upon the owner?
IS the permlttee falls to provide reasonableproof of ownership to the satisfaction of our Department, can the Parks and Wildlife Commissioncharge for the removal of all bay bottommaterial from the entire area for which the permit Is Issued upon a presumptionthat all of the bay bottom area not shown to be the privateproperty of the permittee is State-owned?

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.

You have advised us that you cation for a permit to dredge the have a pending appllbottom or sedimentary GalvestonBay, which

. . -- _ materials from under a portion of applicant contends is privatelyownea suomergeaLana. You further advised us that this problem is one of considerablefuture consequenceIn handlingdredgingpermits.
In view of the future importanceto your department, we shall examine in some detail the nature Of the:; interestand ownershipof'submergedtidal lands.
As a general principle,all parts of the Qulf of Mexico, includingits bays and Inlets,within the State of Texas are the propertyof the State of Texas. The lenal history and vertlnent statutesare clearly set out 135 Tex& 319, 143 s.W.2d

"It is pertinenthere to review briefly the legal history of the State's ownershipof the waters and submergedlands of the oulf of Mexico. On December 19, 1836, It was enacted by the Senate and the House of Representatives of the Republic of Texas that from and after the passage of that Act, the civil and political jurisdiction

of the Republic!

was declared to extend to the followingboundaries,to wit: 'Beginning at the mouth of the Sablne river, and ,running

west along the Gulf of Mexico three leagues from land, to the mouth of the Rio Ctrande, thence up the principal stream of said river to its source, thence due north to the forty-second degree of north latitude,thence along the boundary line as defined in the treatybetween the United States and Spain, to the beginning,' Qamelts Laws of Texas, vol. 1, p. 1193. In the Resolutionof the Congress of the United States pertainingto the Annexationof the Republic of Texas as a State into the Federal Union, of date; March 1, 1845, 5 Stat. 797, it was provided that the Republicretained for the State ‘all the vacant and unappropriated lands lying within Its limits,' subject only to the superiorrights of navigation of the Federal government In the navigablewaters of the State. Article 4026, R.C.S. 1925, which Is a re-enactmentof a prior statute,provides, In ,part,as follows: 'All of the public rivers,

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Hon. J. R. Singleton,page 3 (M-465)

bayous, lagoons, creeks, lakes,bays and inlets in this State, and all that part of the Qulf of Mexico within the jurisdiction of this State, togetherwith their beds and bottoms,and all of the products thereof, shall continueand remain the property of the State of'Texas,except in so far as the State shall permit the use of said waters and bottoms, or permit the taking of the products of such bottoms and waters, * * **I Article 7467, R.C.S. 1925, provides, in part, as follows: 'Thewaters of the ordinary flow and underflowand tides of every flowing river or natural stream, of all lakes, bays or arms of the Gulf of Mexico, and the storm, flood or rain waters of every river or natural stream, canyon, ravine, depressionor watershed,within the State of Texas, are hereby declared to be the property of the State, * * *,I (4) This Court in many importantdeclslons has zealouslyguarded and enforced the rights of this State to the public lands of the State as provided and guaranteedto it in the foregoing resolutionsof the Republic of Texas, the resolutions of the United States Congressappertaining to the annexationof the Republic of Texas, and In the Acts passed by the Legislatureof the State of Texas. And by virtue of Article 5416, R.C.S. 1925, Vernon'sAnn.Civ.St.art. 5416, which is a re-codification

of an older statute, this Court

latest expressionsof th C t on that subject is contained In the caseeofozieState of Texas et al v. Bradford, 121 Tex. 515, 50 S.W.2d 1065, 1069, where, in an opinionwritten by Sharp, J., then a member of the Supreme Court Commission and now a member of this Court, It was said: 'The rule long has been establishedin this state that the state is the owner of the soil underlying

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Hon. J. R. Singleton,page 4 (~-465)

the navigablewaters, such as navigable stresms, as defined by statute, lakes, bays, Inlets,and other areas within tidewaterlimitswithin its borders.'" (Emphasisadded.) The line on shore betweenprivate and state ownership is fixed at the mean higher high tide. Luttes v. State, 159 Tex. 500. 324 S.W.2d 167 (1958). A change in the tide line inlaid causes the private owner to lose-hisland without redress. State v. balli et al, 144 Texas 195, 190 S. W. 2d 71 (1944‘)

and Luttes v. State, supra. Therefore, in order for a private owner of land on the shore line of the Gulf of Mexico, or one of its bays or inlets, to successfullyclaim land under tide waters, he must satisy you of his ownershipfrom the sovereign. Qm Of city supra. We are aware that a certainarea on the east end of, Qalveston Island within the.R. C. Trlmble and William Lindsey survey includes "the flats running to and bordering on the channel". City of Galveston v. Menard 23 Tex. 349 (1859). We understandthis area stoppedat the present 57th Street, whereas the applicant’s tract lies between 65th and 67th Street. In any event the affidavit furnishedyou, and Includedwith your,request, is insufficient. It fails to Includeany surveyplat'.and~ ' proof of title from the sovereign,among other reasons. You are within your right to preslPne that all the beds of a bay up to the line of mean higher high tide belong to the State; and you have jurisdiction over the materials thereinunder Articles 4053 and 4053d,Vernon's Civil Statutes. (196i'), Attorney (feneral

OpinionNos. WW-151, (1957),~-84, and M-368, (1969). The subject of this opinion deals with tidewateror "salt water" islands,reefs, bars, lakes and bays. Article 4051, V.C.S.,makes a distinction between lands within tidewater limits and those under fresh water.

"All the islands,reefs, bars, lakes, and bays within the tidewaterlimits from the most interiorpoint seaward co-extensive with the jurisdiction

of this State, and such of the fresh water islands, lakes, rivers, creeks and bayous within the interiorof this State

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as may not be embraced in any survey of private dt th ith 11 th *er%l %ze, 1 d d f

azd allet~sh%ls~a&d~heU or gravel of whatsoeverkind that may be in or upon any island,reef, or bar, and in or upon the bottoms of any lake, bay, shallowwater, rivers, creeks and bayous and fish hatcher~les and oyster beds, within the jurisdiction and territoryherein defined,are include~d within the provisionsof this chapter,and are hereby placed under the management,con;f;rol and protection of the Commissioner

.... . (Emphasisadded.)
An exclusionwas made for those private lands embraced in any "survey of prLvate land" under or within "fresh water". A.permitwould, therefore,not be required where fresh water is Involvedas distinguished from tidewateror salt water.
In view of the foregoing,we will summarizeour answer:
To ,Question

1, our answer Is "yes". Article 4051, Vernon's Civil Statutes,et seq., requires that you determinewhether or not the proposed operationwill have any injuriouseffect to oysters, oyster beds or fish in those or adjacentwaters.
To Question 2, our answer Is "no".
To Question 3, our answer Is "yes". City of ffalveston v. Mann, supra.
To Question 4, our answer is "yes". All ba bottom is presumed to be State-owned. Articles 4026, 5 16 and % 7467.
SUMMARY

All dredgingof bay bottoms requires a permit from Texas Parks and Wildlife Department. Ownershipof bay bottoms is in the State and burden of proof of

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private ownership Is upon the claimant. Owners of land under freeh water, as distinguished

from tidewater,are not required to apply for a permit, under the exclusionof Article 4051.,

y General of Texas Preparedby Vince Taylor AssistantAttorneyGeneral
APPROVED: OPINION COMMITTEE
Kerns Taylor, Chairman Qeorge Kelton,Vice-Chairman Louis Q. Neumann HoughtonBrownlee James M. Mabry Malcotn Quick
MEADE F. GRIFFIN Staff Legal Assistant
EAWTHORNEPHILLIPS ExecutiveAssistant
NOLA WRITE First Assistant

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