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 a navigable stream, a8 that 

word ia defined In Art. 5302, RCS,al.though 

it is non-navlgable in ~fact. The Salt Fork 

la not a dry 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 efid therefore 

would oome under the provisions of the ‘Small 

Act, i Article 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 on both 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.” 

You ask the following question; 

t’Cen the general punblic enter such enclosed lands and walk down the bed of the 
Honorable 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?” 

You further 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 u6e the banks ~for such things as huntOranta made since the 1837 Act 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 owned b 

the State. flanry v. Robison, 122 Tear. 213, 56 SIWo2d t 

446 (19x), Grants made since 1840 are governed by the 

38, 

common law, under which the boundary between public 

and rlparlan ownership is fixed at a point In the cut 

bank known aa the “gradient boundaryo” Unlike under the 

civil law, the pub110 may not as to common law grants go 

beyond this line ‘and use the banks for flshlnn. CamDinR. 

etc. - 2d __ Ij41;-.-~~~-~.. niveralon Lake Club V~ Heath, 126 Ten. 129, 86 S;$. 

447 (-Em H the court specifically left 

open the question a’s ty?zrbight to use of the banks by 

cbmmeroial navigators “in emergenoy, or in other circumstances.” Page 447? 4 

By 9 tatute s the 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 a Levi public bridge and steered 

their way into a lake, the outer portions of which were 
Honorable 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 common or 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, 88 S.W.2d 127 

(Tex.Civ.App.1935, error dism.), ft was held that the bed 

6f a non-navigable lake belonged to the riparlan landowneD 

and that a neighbor 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, a person has no right to 

cross private lands to get to a fishin spot. 

State, 175 S.W:2d 473 (Tex,Clv.App. 19 & 3); Smith v. 

Reed v, 

(iodart, 2% S.W. 211 (Tex.Clv.APP. 1927). 

In State v. Bradford,121 Tex.515, 50 S.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 common use and benefit.” To the same effect 

see Qtate v Grubstake Inv. Assoc.,~supraj Anderson vI 

&&, 117 TGX, 73, 297 S.W. 219, 223. 

Thii Small Bill (Art. 5414a, V.C,S. provides 

ior the relinquishment by the State to ripar 1 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 18 not epplicable to mllnqulah any nwmber of acres of rti%am bad in 

excesu of the number convelad tn the orfainbl CWants, 

. 

i 

said: 

) ~256 s.w;26 io16, 10261 ‘+4dlr.APP* 

loo re8erv8m the State ‘0 r L hte to ainsraltI 

ravel in tM bedr of navlwble streame. 

In Jtato v. BradforQ, auprm, at p* 1076, the court 

I 

1 

latcu**wi~~ Zhe enaatm8nt of the 8mall Bill did 

Xt ie quite plain that the Lagisnot intend to grant unto the patentee8 or 

awerdeen and their ansignses an absolute title 

to the land dercribed In their pbtbnts or 

award8 under navigable w8 tern ,a The provisiona 

of the 5mall Bill recognisc a\1 thore rlght8 

to whlah the beds of sta,tutory navlgablc 8txQtsms 

or water coumea had been theretofore mserved 

under the publla policy and lewe 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~he Acrt shall 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 tbn watera of 

etreame in the publia lmpliee “all thing8 nsoassary to the 

practloable and aubrtantlal u8e of and enjoyment of the 

things reecrved ,” and in 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’ a8 will BUifice to take away euah 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 a right 

to use same as an incident to the right to fish. We are 

of the opinion that Article 1377 was not intended to 

apply to a situation where the entry was otherwise lawful, i.e., not a civil trespass. 

As we Interpret this Act, it convert3 into a 

crime an improper entry on private 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, a member 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 common law. 

we answer 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 beds of a 

river wtilch Is privately ,owned by virtue 

of the Small Bill (Article 5414a, V.C*S.) 
. . 

Honcrable Dawaon Bryant, page 6 (S-208) 

for the purpose of seining end fishing 

In water holes In the bed of the river, 

This Is true even though the rlver 

passes through land fenced in on both 

sides of the river, the owner maintalnlng water gaps acroaa the river bed 

where the river enters and exits from 

his land. Such conduct by the public 

does not violate ArtiClO 1377, Y.P,C. 

yours very truly, 

JOHN BEN SHEPPERD 

Attorney tinera 

APPROVED: 

Mary K, Wall 

Reviewer 

Burnell Waldrep 

Re vlewe r 

w- V. Ueppert 

Reviewer 

'L. w, Gray 

Special Reviewer 

Davis Grant 

First Assistant 

John Ben Shepperd 

Attorney Qeneral 

JAS:bt 

,’