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 States Govsnrment 

in land underlying navigable 

waters. 

You have requested the opinion of this deportment upon 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 desired by the 

United States Government to provide a spoil arba neaessary for and incident 

to the construction and maintenance of a channel te end a turning basis at 

Encinal Peninsula on which peninsula a 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. Settegast v, Foley Bras. Dry Goods Co., 114 Tex. 452, 270 S.W. 214. 

Section 4 of Article 7 of the Constitution of Texas provides: 

"The lands herein set apart to the Public Free School Fund shall be sold 

under such regulations, at such times, and on such terms as may 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 heretofore made, 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 presoribsd by law: and the Stats 

shall be responsible for all investments." 

In order to determine the applicability of the above cited constitutional restrictions which litiit and regulate the sale of land set 

apart to the Public Free School Fund, it is neaessary, first, to determine 

whether or not lands lying under navigable waters (such as the area in 

question) are included withinthe lands which have been dedicated and sat 

apart by the Constitution and by statute to the Publio Free Sohool %nd. 

In State v. Bradford, 121 Tex. 515, 50 S.K. (2d) 1065, it was 

held that the beds of navigable rivers ia Texas were not included within 

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 specific and definite language is required to 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. In view of the 

above cited decisions of the Supreme Court of this State, together with 

many others of similar import, we are oempelled to hold that lands underlying navigable waters of this state have not been dedicated to the Public 

Free School Fund and that the provisions of Section 4 cf Article 7 of the 

Constitution are, 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 sufficient quantity of the 

public domain of the State necessary for the erection of forts, barracks, 

arsenals, and military 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 conformity with the decisions and the reasoning in the above 

cited cases, we are also compelled to hold that Section 34 of Article 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 

authorize the sale of the easement ef the land in cuestion. It has, in 

fact, been held by the Supreme Court of Texas that land underlying navigable 

waters can be legally granted by the Legislature. City of Galveston v. 

Menard, 23 Tex. 349. 

The sole remaining question is whether or not the Legislature has 

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 lands withim the limits of this 8 tats as it dsemr expedient and may seek to eccupy and hold l e 

sites en which to erect and maintain light houses, dock yards, custom houser, 

post offices and all other needful public buildings, and for the purpose of 

erecting and constructing leeks and dams, for the straightening of streams 

by making cutoffs, building levees, or for the erection of any other struot 

tures or improvements that may become necessary in developing or improving 

the waterways, rivers and harbors of Texas and the consent of the Legielature 

is hereby expressly given to any suoh purchase or acquisition made in aoeerdanoe with the provisions of this law." 
Hon. N. Lee O'Daniel, page 3 (O-2627) 

“Article 5245. l&en this State may 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, upon the oiler of 

the Governor, shall issue a patent to the United States for such land in 

like manner a8 other patents are issued." 

The quoted statutes, in our opinion, funish the requisite statutory authority to enable the Governor te sell the land in queetfon en behalf of the %ate. It is apparent frem the language of Artiole 5242 that 

the Legiolature definitely had in mind and plainly intended to include 

within the lands whioh it authorized the Governor to sell, in Article 5245, 

those lands underlying the navigable waters of thin State, This ir clear 

fremthe nor ding of Article 5245 which expressly mentions and makes provision for the purchase of land by the United States Government te be used 

in the erection of "dock yards, " "looke and dams" and the "straightening 

of streams by making cutoffs, building levees, nnd for the.ereotion of any 

other structures or improvements that may become neoersary in developing 

or improving the wateranyr, rivers and harbcurs of Texas . . ." 

It io also our opinion that the Lsgielaturs in enaoting the abow 

cited etatutes intended and contemplated that the Governor, in selling the 

land on behalf of the State,ahould sell the same for its real value to be 

determined by the Governor. Artiole 5245 further provides that upon sale 

of the land bythe Governor and upon payment of the purohase money therefor 

into the Treasury, a patent shall issue tc the United States for such land 

in like manner as other patents are iseued. 

In view of the opinion herein expressed that you are authorized 

to sell an easement in the land in question, it is possible that anwers to 

additional questiono propounded in your letter will beoeme unneceaaary. 

Ebwever, in the event you are unable tm agree with the authorized agent 

of the Federal Government upon the purchase price for the easement, we 

call your attention to the fact that Articles 5243 and 5244 expressly authorize and provide for the institution of condemnation proceedings for 

the aoqu%sition of such land. 

It has been expressly held in B number of decisions that statutes 

providing for condemnation proceeding8 are applioable to State onmed lands. 

Texas Central Ry. 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 conclusions herein expressed are ti accord with prior 

rulings of this department as shown by Conference Opinion No. 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. 

Yours very 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