Iicnorable II.Lee O'Daniel Governor of The State of Tsxao Austin, Texas
Dear Governor O'Daaiel: Opinion No. O-2627 Rer Grant of easement by State to United StatesGovsnrment in land underlyingnavigable waters.
You have requested the opinion of this deportmentupon the question of whether or not the State of Texas can legally grant to the United Stats8 Government an easement in certain land situated in Oso Bay, a navigable ?my lacpted ia Nusces County, Texas. The easement is desiredby the United StatesGovernment to provide a spoil arba neaessary for and incident to the constructionand maintenance of a channel te end a turning basis at Encinal Peninsula on which peninsulaa United States naval aviation base is now being constructed.

It is settled that the sale of an easement ia land is a sale of land. Settegastv, Foley Bras. Dry Goods Co., 114 Tex. 452, 270 S.W. 214.

Section 4 ofArticle 7 of the Constitution of Texas provides: "The lands herein set apart to the Public Free School Fund shallbe sold under such regulations,at such times, and on such terms asmay be prescribed by law; and the Legislature shall not have power to grant any relief to purchasers thereof. The Comptroller shall invest the proceeds of such sales,and of those heretoforemade, as may be directed by the Board of Education herein provided for, in the bonds of the United States, the State of Texas, or cowties in said State, or in such other securities, and under such restrictions as may be presoribsdby law: and the Stats shallbe responsible for all investments."

In order to determinethe applicability of the above cited constitutional restrictionswhich litiit and regulatethe sale of land set apart to the Public Free School Fund, it is neaessary,first, to determine whether or not lands lying under navigablewaters (such as the area in question) are includedwithinthe landswhich have been dedicated and sat apart by the Constitutionand by statute to the Publio Free Sohool %nd.

In Statev. Bradford, 121 Tex. 515, 50 S.K. (2d) 1065, itwas held that the beds of navigable rivers ia Texaswere not includedwithin the land set apart pnd dedioated to the Public Free School Fund. That decision was largely based upon the reasoning that lands underlying‘-\

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Hon. W. Lee O'Daniel,page 2 (O-2627)

navigable waters in Texas are held in trust bythe State for the free use and enjoyment of the public generally, and that specificand definite language is requiredto grant such areas either to an individual or to a specific fund. A similar rule was expressed bythe SuRr&ae Burt in Landry v. Robinson, 110 Tex. 295, 219 S.W. 619. Inview of the above cited decisions ofthe Supreme Court of this State, togetherwith many others of similar import,we are oempelled to hold that lands underlying navigablewaters ofthis state have not been dedicated to the Public Free School Fund and that the provisions of Section 4 cf Article 7 ofthe Constitutionare,therefore, not applioable to land underlying the navigable waters of Oso Bay.

We have also examined Section 34 of Article 16 of the Texas Constitutionwhich provides: "The Legislature shall pass laws authorizing the Governor to lease, or sell to the Government of the United States, a sufficientquantity of the public domain ofthe State necessary for the erection of forts, barracks, arsenals, andmilitary stationa, or camps, and for other needful military purposes; and the action of the Governor thcreim shall be subject to the approval of the Legislature."

In conformitywith the decisions and the reasoning in the above cited cases,we are also compelledto hold that Section 34 ofArticle 16 does not apply to lands underlying a navigable bay since no specifio or definite language is found in Section 34,Article 16, providing for the inclusion of such areas.

We have found no other provision of the Constitution,which within reason, could be held to restrict or limit the power of the Legislature to authorizethe sale of the easement ef the land in cuestion. It has, in fact, been held by the Supreme Court of Texas that land underlyingnavigable waters can be legally granted by the Legislature. City of Galvestonv. Menard, 23 Tex. 349.

The sole remaining question is whether or not the Legislaturehas authorized the sale of the land in question to the United States Government.

Articles 5242 and 5245 of the Revised Civil Statutes, 1925, provide as followsr "Article 5242. The United States Government, through its proper agent,may purchase, ao biro, hold, own, occupy and possess such landswithim the limits of this 8tats as it dsemr expedientand may seek to eccupy and hold le sites en which to erect andmaintain light houses, dock yards, customhouser, post offices and all other needful public buildings, and for the purpose of erectingand constructingleeks and dams, for the straighteningof streams bymaking cutoffs, building levees, or for the erection of any other struot tures or improvementsthat may become necessary indeveloping or improving the waterways, rivers and harbors of Texas and the consent of the Legielature is hereby expressly given to any suoh purchase or acquisitionmade in aoeerdanoewith the provisions of this law."Hon.N. Lee O'Daniel,page 3 (O-2627)

“Article 5245. l&en this Statemay bs the owner of any land desiredby the United State8 for any purpose apeoified in this title,the Governor may sell such land to the United States, and upon payment of the purohare money therefor into the Treasury, the Land Cemminaioner,uponthe oiler of the Governor, shall issue a patent to the United States for such land in likemanner a8 other patents are issued."

The quoted statutes, in our opinion, funish the requisite statutory authority to enable the Governor te sellthe land in queetfon en behalf of the %ate. It is apparent frem the language of Artiole 5242 that the Legiolaturedefinitely had inmind and plainly intendedto include within the landswhioh it authorized the Governor to sell, in Article 5245, those lands underlying the navigablewaters of thin State, This ir clear 

### fremthe nor ding of Article 5245which expresslymentions andmakes provision for the purchase of land bythe United States Government te be used in the erection of "dockyards," "looke and dams" and the "straightening of streams bymaking cutoffs,building levees,nnd for the.ereotion of any other structures or improvements that may become neoersary indeveloping 

### or improvingthe wateranyr, rivers and harbcurs of Texas . . ."

It io also our opinion that the Lsgielaturs in enaoting the abow citedetatutes intendedand contemplatedthat the Governor, in selling the land on behalf of the State,ahouldsell the same for its realvalue to be determined by the Governor. Artiole 5245 further provides that upon sale of the land bythe Governor and upon payment of the purohasemoney therefor into the Treasury, a patent shall issue tc the United States for such land in likemanner as otherpatents are iseued.

Inview of the opinionherein expressedthat you are authorized to sell an easement in the land in question, it is possible that anwers to additional questionopropounded in your letterwill beoeme unneceaaary. Ebwever, in the event you are unable tm agreewith the authorizedagent of the Federal Governmentupon the purchaseprice for the easement,we callyour attention to the fact that Articles 5243 and 5244 expressly authorize andprovide for the institutionof condemnationproceedingsfor the aoqu%sition of such land.

It has been expressly held in B number of decisions that statutes providing for condemnationproceeding8are applioable to State onmed lands. Texas CentralRy. Co.v. Bownan, 96 Tex. 417, 79 S.17.295. Imperial Irrigation Cc.v. Jayne, 104 Tex. 395, 157~S.W. 751. Kohl v. United States, 91 U.S. 367, 23 L. Ed. 449.*c 1.

Bon. N. Lee OfDaniel, page 4 (O-2627)

The conclusionsherein expressedare ti accordwith prior rulings of this departmentas shown by ConferenceOpinionNo. 2815, dated September 23, 1930, recorded **in** the Opinions ofthe Attorney General,Vol. 64, p. 15. A cdpy of that opinion,which '110 expressly approve, is hereto attached.

We trust 'that the foregoing fully answers your inquiries.
Yoursvery truly

A'ITORNEYGENERBLOFTEXAS By /s/Robert E. Kepke

Robert E. I[Bpke

Assistant

REKrBT:egw APPROVED NOV 23, 1940 /s/ GEULD C. MANN ATTORNEY GEXERAL OFTEXAS APPROVED Opinion Committee ByBYPB Chairman