GENERAL

Honorable Dean Martin CountyAttorney Grayson County Sherman,Texas

Dear Mr. Martin: RE: Authority of Grayson County to accept a deed from the KansasOklahoma and Gulf Railroad Company to a bridge lying between Texas and Oklahoma spanning the Red River about 9 miles east of Denison, Texas and related questions. We have your letter in regards to the abovematter. 6, 1966 OpinionNo. C-703

You have posed the followingquestions for our consideration.

"1
. Would there be any legal objection for Grayson County, Texas, and Bryan County, Oklahoma, to accept a joint deed to the bridge in questionwhich lies across the Red River? 2. If such a deed is permissible and legal, could the CommissionersCourt of Grayson County, Texas, authorize taxmonies to be expended for the operation andmaintenance of thatpart of the bridge which does not lie in Grayson County, Texas?" In passing on thismatter, it is pertinent to mention that the United States Supreme Courtpassed on the question of the OWneFShiD of the bed of the Red River in the case of State ofOklahoma v. State of Texas, 261 U.S. 345 (1923), wherein it was decided that tl- State of Oklahoma owned such part of the bed of the Red Ri& as lies north of themedial line'of the river and "The full title and ownership of so much of the bed of the river as lies south of itsmedial line are in the United States". Here we are concernedwith ownershipandmaintenance of a bridge which is not only outside the territorial limits of the County of Graysonbut also wholly outside the territorial limits of the State of Texas, with the exception of the abutment to the bridge on the Texas side,which lies in Grayson County, Texas. -3390-Honorable Dean Martin,page 2 (C-703)

We assume that the road leading to the bridge, or the road to be built is or will be a County road, and not a State Highway. See Attorney General'sOpinion O-5775 (194&), which we encloseherewith. Section 2, Article 11 of the State Constitutionprovides as follows:

"The constructionof jails, court-housesand bridges, and the establishmentof countypoor houses and farms, and the laying out, construction and repairing of county roads shallbe provided for by general laws." (Emphasisadded.) Pursuant to' the foregoingprovisions of the constitution the following laws touching on the subjectwere passed: 1. Article 718, Vernon's Civil Statutes,providegin part,as follows.

"Afterhaving been authorized as provided in Chapter One of this title, the Commissioners Court of a countymay lawfully Issue the bonds of said county for the followingpurposes:

. . . 4. To purchase and constructbridges for public purposeswithin the county or across a stream that constitutesa boundary line of the
...." (Emphasisadded.) 2. Article 6796, Vernon's Civil Statutes,provides as follows: "Wheneverany stream constituteseither in whole or inpart the boundary line between two or more counties, or when two ormore counties are jointly interested in the constructionof a bridge,whether over a stream or elsewhere, it shallbe lawful for the counties so divided or interested to jointly erect bridges over such stream or over any other stream,upon such equitable terms as the CommissionersCourt of each county interestedmay agree upon." 3. Article 2351,Vernon's Civil Statutes,provides, in part,as follows: -3391-, 1

Honorable Dean Martin, Page 3, (c-703)

"Each commissioners court shall:

. . . 4. Build bridges and keep them in repair. II

. . . In passing on Article 877, Vernon's Civil Statutes, which is the predecessor of Article 718, and which has substantially the same language as Section 4 of Article 718, supra, the Supreme Court in Bell County v. Lightfoot,Atty. Qen., 104 T. 346, 138 S.W. 381 (1911)held:

I,

...That the authority to constructbridges for public purposes, embraces the repair and maintenance of such structures.' This holding is ileo'~supported by Aransas.Countv v. Coleman-Fulton Pasture Co., 108 T. 21b, 191 S.W. 553, 71917). Touching on the point as to constitutionalityof expenditures for bridges crossing streamswholly outside the territorial limits of the state,it iss&tedin 11 C.J.S. 1015, Bridges, Sec. 17, as follows:

"A state has been held authorized to participate in the constructionof interstatebridges as against the contention that the river to be bridged did not form the boundary linewhere the technical boundarywas on the high portion of the bank of such river.
...' mission of Texas v. Vaughn, 288 S.W. Citing El.;~;;~ornxwCiv;App. 192b, error ref.) In the Vaughn case, supra, the court stated: "The contention that Texas cannotpay the costs of any portion of the bridge beyond her territorial limits Is alsowithout merit. Article 3, Section 56, Subd. 6 of the Constitution, authorizes the Legislature to enact local or special laws 'forthe erection of bridges crossing streamswhich form boundaries between this and any other state.' No limltation isplaced upon this grant of power either with reference to the territory over which an Interstatebridgemight be constructedor as -3392-Honorable Dean Martin,page 4,(c-703)

to its cost, In fact, themakers of the fundamental law knew that one end of an interstate bridgemust of necessity rest within another state, that territory of both statesmust be spannedby it, that the occasionmight arise when such a bridge would be of vital necessity, or at least of much greater value to this state than to the other state into which it ooened, and they left all thesematters to the.Legislature without any.restrictionupon its authority to construct the bridge.
... (Emphasisadded.) "In some jurisdictionsby Legislative enactment the costs of bridges crossingboundary streamsbetween counties, or In some instances between cities, are to be borne equallyby the respective counties or cities interested.
... The broader rule was recognizedby the Texas Legislature in Article 6796, where it is provided that adjoining countiesmay contract to build bridges over boundary streams 'uponsuch equitable terms as the commissioners'court of each county interestedmay agree upon.'" The Vaughn case, supra,defines a boundary as follows: "Thecontention that Red River is not within Texas and does not form her boundary is withoutmerit with respect to the subjectmatter of this suit. While the south cut bank does legally and technically form the boundarywith reference to Texas civil and criminal jurisdictionand ownership over the territory, still,with reference to preventing social and commercial intercourse with her sister state, a primary object for her entering the Union, the river forms the barrier separating them. A bridge on eitherbank of the river will not remove the barrier. The structure requiredmust necessarily rest on each high bank of the river, span the entire territorybetween them including the river,with its ends opening Into each of the states, and when this Is done there is of coursebut one structurewith reference tb its use. Therefore, from that viewpoint, not only the banks, but the river and all territory necessary to be spannedby the bridge in order toeffectthe purposes of social and business intercourse between the states, is the true boundare." (Emphasisadded.) -3393-Honorable Dean Martin:page 5; (C-703)

Keiser v. Union County, 156 Pa. 315, 26 A. 1066, (1893), decided by the Supreme Court of Pennsylvania,expresses the view upon this question as follows:

"A stream is equally the boundary line, whether the line Is Itsmiddle thread, or its westernmost ripple. To find the boundary, you must find the stream and then the part of it defined as the line; but, wherever that is, it is the stream, and it is the boundarv onlv beTherefore, it is our opinion that the County of Grayson is legally authorized to accept theproposed deed and the County of Grayson is authorized to expend taxmonies for the operation and maintenance of said bridge. SUMMARY The County of Grayson is legally authorized to accept the proposed deed which will convey a bridge across the Red River, and Grayson County is authorized ?o expend taxmonies for the operation and maintenance of said bridge, Yours very truly, WAGGONER CARR Attorney General of Texas

DAVID LONGORIAU DL/vmo APPROVED: OPINION COMMITTEE Assistant Attorney General

:3394-Honorable Dean Martin, page 6, (c-703)

W. V. Geppert, Chairman Arthur Sandlln John Banks C. Daniel Jon@, Jr. APPROVEDFOR TIiE

ATTORNEY GJINERAL BY: T. B. Wright Enclosure

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