.hlr. D. W. Porter Chief Engineer Department ,ofAgriculture Austin, Texas Opinion No. O-156
Dear Mr. Porter: Re: What Constitutes aNavigable State Owned Stream inTexas.

This acknowledges receipt of and is inreply to your letter of January 16, 1939, inwhich youreq.~estan opinion on the extent of open waters on the Guadalupe River inKerr County, and an opinion as towhat the minimum length of such areas must be in order for the same to constitute a State owned stream.

In your letter you state that the cutbanks of the stream in question are from 50 to.100 feet apart and that there are anumber of areas in the stream containing holes ofwater 50 to 100 feet inwidth and from one-fourth to one mile in length, but that inmany portions of the stream theholes ofwater are only 10 to 15 feet wide and in some instances narrow enough to step across.

By Statute, Article 5302, R.C.S., the State of Texas defines a navigable stream as follows:

"All streams so far as they retain an average width of 30 feet, from themouth up, shall be considered navigable streams within the meaning hereof."
Inwriting this opinion we assume that the average width of thebed of the stream in question, from themouth up, is at least 30 feet. The term "Bed of a Stream" has been defined by theTexas courts as follows:

The bed of a stream is that portion of its soilwhich is alternately covered and left bare as there ma7 be an Increase or diminution in the supply ofwater, and,whiah is adequate to contain it at its average and mean state during sn entire year, without reference to theextra freshets of the winter or spring of the extreme drouths of the summer or autumn."Mr. D. W. Porter, February 6, 1939, page 2, O-156

Mot1 v. Boyd, 286 S.W. 458. If thebed of the stream to wilS.ch you refer retains an average widthfrom themouth up of at least 30 feet, then such stream is anavigable stream, and the title thereto is ownedby the State of Texas whether ornot such stream isnavigable infact end whether ornot the flow of waters in such stream in ordinary seasons is less than 30 feet. State vs. Bradford, 56 S.W. (2) 1065.

The fact that the stream inquestion doesnot have a continuous current of water is immaterial, provided, however, that the stream be such that rain, springs, or other sources ofwater supply will, at recurring intervals, produce a flow ofwater, and provided that such conditions recur with some degree of regularity so that they establish and maintain a running stream for considerable periods of time though such periods are intermittent and brief. Hoers vs. ihort, 273 S.W. 785.

Ithasbeen held, withrespect tothe North Fork of the Red River in Texas, that such stream is anavigable, state owned stream, notwithstanding the fact that there is no permanent flowing water on the surface of the bed of such stream, and although such streamhad no springs or sources ofwater other than rain fall, such rain fall coming but occasionally, and although the water in such stream ran in a current for only one to ten hours after every substantial rain, andno more frequently thanfour or five times a year, thewater thereafter standing inholes from 10 to 20 days, where it isalso shown that the distance from cut bank to cutbank, from the mouth up, was at least 30 feet. State vs. Bradford, 56 S.M. (2) 1065; Heard vs. Town ofRem, 103 S.W. (2) 728.

In the light of the statute and decisions quoted from above we answer your inquiry as follows:

If the Guadalupe River inKerr County retains an average width from cutbank to cutbank, from themouth up, ofat least 30 feet, and if suoh river has apermanent but not necessarily continuous source ofwater supply, which water when flowing isretained inawell defined channel, then such river, insofar as itretains such characteristics, isanavigable, state owned stream.

You, of course, will understand that before we can?ender >(A:,

a definite, unconditional opinion upon whether ornot the Guadalupe River inKerr County is or is not a navigable, state owned stream, itwill benecessary for you to furnish uswith specific facts and figures with reference to the average width of the bed of such stream,Mr. D.W. Porter, February 6, 1939, Page 3,~O-156

the frequency with which it contains flowing waters, the source of its water supply, the aondition of its channel, and suoh other datawhich isrelevant to the determination of the character of the area in question. If this opinion isnot suffioient for your purposes we shall beglad to amplify itupon receiving from you the specific facts and figures referred to.
Yours very truly ATTORNEY GENERAL OF TEXAS s/ Robert E. Kepke
BY Robert E. Kepke

Assistalh

REK:LM-ag APPROVED: S/ Gerald C.Mann ATTORNEY GENERAL OFTEXAS