Honorable Dawson Bryant County Attorney Sayton, Texas Opinion No. 3-208

Re: Right of member of the general public to walk, for ffshing purposes, in a river bed, title to which ha8 been relinquished under the Small Bill (Art, %14a,

‘V.C.S. ) Dear Mr. Bryant :

Your letter states the following facta: “The Salt Fork of the Brazos River in Kent County is anavigable stream, a8 that word ia defined In Art. 5302, RCS,al.though it is non-navlgable in ~fact. The Salt Fork la not adry stream but flowa a small stream of rater during the drteut month6 of the year. Praotlcally all the original eurvey lines of the Patent6 and Awards either cros8 or partly oroBB the bed of such river efidtherefore would oomeunder the provisions of the ‘Small Act, iArticle 5414a, RCS. There are Several large ranches in Kent County that are croeaed by the Salt Fork of the Brazes River. The 

### ownem of such ranches have their ranches enclolred with substantial fences and are using the river bed and the land lying onboth sides thereof for the purposes of raising cattle.’ The owners maintain water gaps across the river bed at the places that the river entera and exit& from their particular ranch.” Youask the following question;
t’Centhe general punblic enter such enclosed lands and walk down the bed of theHonorable Dawson Bryant - page 2 (S-208)

river, either on the dry bed or In the water, for several miles and seine for mlnnowa and fish In the water-holes located In such river bed against the owner’s wishes?” Youfurther request our opinion as’to whether or not such conduct would violate Article 137'7, Vernon’s Penal Code,

Under civil law arants made Drlor to 

### the Act of 1837,the beds of all perennial streams belong to the State, PcCurdy v, Morgan, 265 S.W.2d 269 (Tex. Clv. App, 1954.error ref.). From your description, the stream ln~q~eatlon is a.perennial stream. This bwnership of the 

### bed in the vublic carried with it under the civil law the right tb 

### u6ethe banks ~for such things as huntOranta made since the 1837Act are g,overned by the 30-foot navigability rule, Article 5302, Vernon’s Civil Statutes, The beds of navigable streams as there defined, adjoining grants made after 1837,are ownedb the State. flanry v. Robison, 122Tear. 213, 56SIWo2d t 446 (19x), Grants made since 1840are governed by the38,

commonlaw, under which the boundary between public and rlparlan ownership is fixed at apoint In the cut bank knownaa the “gradient boundaryo” Unlike under the civil law, the pub110 maynot as to commonlaw grants go beyond this line ‘anduse the banks for flshlnn. CamDinR. etc. 

## -__ niveralon Lake Club V~Heath, 126Ten. 129, 86S;$. 

## 2dIj41;-.-~~~-~..

447

## (-Em H the court specifically left open the question a’sty?zrbight to use of the banks by cbmmeroial navigators “in emergenoy, or in other circumstances.” Page 447?4

By 9tatute sthe waters of every Texas stream 7467,V.CoSe) aa well as the fish therein (Art. are public property, The law la not clear as to the right to fish In public waters over private landa. In thepivers’ion Lake Club case, supra, fishermen launched their boat from aLevipublic bridge and steered their way 

### into alake, the 

### outer portions of 

### which wereHonorable Dawson Bryant - page 3 (S-208)

over submerged private lands. page 443: The Supreme Court said at

“The general rule is well established by the authorities that the right to fish in a stream, whether belonging to the public in commonor exclusively to the owners of the land bordering the stream, 15 determined by the ownership of the bed." However, at page 446, the court said that the fishermen could fish over these private lands because, though the bed was private, the waters were public.

In.Taylor Fishing Club v. Hammett, 88S.W.2d 127 (Tex.Civ.App.1935, error dism.), ft was held that the bed 6f anon-navigable lake belonged to the riparlan landowneD and that aneighbor fisherman had no right to cross the boundary line Into the lake by boat. The court cited the Diversion Lake Club case for the proposition that ownership of the bed determined the right to fish. For a similar holding, see Fisher v. Barber, 21 S.W.2d 569 (Tex. CIv.APP.1929). And It has been held that, despite public ownership of fish in streams, aperson has no right to cross private lands to get to afishin spot. State, 175S.W:2d 473 (Tex,Clv.App. Smith v. 19& 3); Reed v, (iodart, 2% S.W. 211 (Tex.Clv.APP. 1927).

In State v. Bradford,121 Tex.515, 50S.W.2d 1065, 1077 (1932). the court said that the reservation of waters of at&ams’to the public implies “all things necessary to the practicable and substantial use of and enjoyment of the things reserved,” and that a liberal conetructlon of the reservation In behalf of the public ie required. The court further said that “nothing short of express and positive language can suffice to evidence the Intention to grant exclusive private prlvlleges or rights in that held for the commonuse and benefit.” To the same effect see Qtate v Grubstake Inv. Assoc.,~supraj Anderson vI &&, 117TGX, 73, 297S.W. 219, 223.

Thii Small Bill (Art. 5414a, V.C,S. provides 1 ior the relinquishment by the State to ripar an owners of certain, stream beds crossed or partly crossed by orlgfnal ,,land’grants and awards. The Act specifically provldea it shall not “Impair the rights of the general public and the gtate in the:waterS'of streams.

. . .' Attention iS

### Honomb~e Mwson Bryant - pap 

### 4(a-208)

*.
.:

. .

. also called to ttn fact that the &nell Bill 18not epplicable to mllnqulah any nwmber of acres of rti%am bad in excesu of the number convelad tn the orfainbl CWants,

.

i said: )~256s.w;26 io16, 10261 ‘+4dlr.APP* loo re8erv8m the State ‘0 r

### Lhte 

### toainsraltI ravel in tM bedr of navlwble streame. InJtato v. BradforQ, auprm, at p* 1076, the court

I

1 latcu**wi~~Zheenaatm8nt of the 8mall Bill did 

### Xtie quite 

### plain that the Lagisnot intend to grant unto the patentee8 or 

### awerdeen and

### their ansignses anabsolute title to the land dercribed 

### In their pbtbnts or award8 

### undernavigable w8tern,a Theprovisiona of the 5mall Bill recognisc a\1 thore rlght8 

### towhlah the beds of sta,tutory navlgablc 8txQtsms or water coumea had been theretofore mserved under the publla policy andlewe of thl8 State," clearly, under the if the undisputed and “abrol 6cyfe.Ggmm
stream belonged to the rlparian, tihe public woula have no firhing right8 therein, Hawever, in view of tha sp8clfic provision in the Small Bill that t~heAcrtshall not wimpair the rlghta of the general publfc and the Stat,e in the water8 of streemr.

. a ,” in vfew of the language in the g-adforg ca8e. 

### eupra, that reservation of tbnwatera of etreame in the publia lmpliee “all thing8 nsoassary to the practloable and aubrtantlal u8e of andenjoyment of the things reecrved ,” andin view of the Purther holding in the $wP ease that a liberal aonrtructlon ot euoh ra@aPv8-

s required, we feel oonat~ained to bold that the Small Bill left undisturbed 8uch rtghte a8 the public theretofore had to nelk for fishing purposes in the dry or 8ubnWged bedr of ltr~mU~ The dmall Bill dose not contein Duch *expm88 and positive language’ a8will BUifice to take awayeuah right8 from the publlo,

.. The portion of Article 1377 material to our inquiry Is a8 follow8 0,

*It shall be unlawful for any perron to enkc upon the inolO88d lend of another without aon8ent of the owner, proprietor or agbnt. .

Honorable Dawson Bryant - page 5(S-208)

In charge thereof, and therein hunt with firearms or therein catch or take or attempt to catch or take any fls'n from any pond, lake, tank, or stream, or therein camp, or in any manner depredate upon the same+ By 'Inclosed lands' is meant such lands as are in use for agriculture or grazing purposes or for any other purpose, and lncloeed by any structure for fencing either of wood or iron or combination thereof, or wood and wire, or partly by water or stream, canyon, brush, rock or rocks, bluffs, or island.

. . ,' The above article prescribes a criminal penalty for a certain type of trespassing. Use of the bed of the stream would not be a trespass if the person has aright to use same as an incident to the right to fish. Weare of the opinion that Article 1377was not intended to apply to a situation where the entry was otherwise lawful, i.e., not a civil trespass.

AsweInterpret this Act, it convert3 into a crime an improper entry onprivate premlaes, upon "land of another without consent of the owner," Here the riparlan is not such an "owner", as heretofore pointed out, of the bed of the stream as would give him the right to Its exclusive use. Such penal statute, therefore, IS not applicable, However, amember of the public would not have the right In going to and from a stream to cross over private land in which no public rlghta obtained under the civil or commonlaw.

weanswer your quoted question in the afflrmatlve and hold that the conduct in question does not violate Article 1377.

SUMMARY

The general public is authorized to &elk o&nthei:dry'or submerged bedsof a river wtilch Is privately ,ownedby virtue of the Small Bill (Article 5414a, V.C*S.). .

Honcrable DawaonBryant, page 6 (S-208)

for the purpose of seining end fishing Inwater holes In thebed of the river, This Is trueeven though the rlver passes through land fenced inonboth sides of the river, theownermaintalnlngwater gaps acroaa the river bed where the riverenters and exits from his land. Such conductby thepublic does not violate ArtiClO 1377,Y.P,C. yours very truly, JOHNBENSHEPPERD Attorney tinera

APPROVED: Mary K,Wall Reviewer
Burnell Waldrep Revlewer

w-V.Ueppert Reviewer 'L.w,Gray Special Reviewer Davis Grant First Assistant JohnBen Shepperd Attorney Qeneral JAS:bt

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