THE'ATTOF&NEY GENERAL 

OF TEAxAS 

Au~-~INII.%%~~A& 

'ACi*;"N*:R B‘.ARK 

rlT,,Mx~- GlcXP-HAL. 

&ber 30,, &a 1: 

_,~ ,. ,~ 

Honorable Joe Reeweber C&Ion ‘No. C-340 

County Attorney ,, ~ c 

Harrle County Re: .Whether the interferenoe 

Houston, Texas with riparlan: rights of access 

by oonlstructlon of a highway 

bridge with a fender ayatem in 

a navigable sIzeam constitutes 

a te+klmg of prop,erty within the 

mean$ng 0S Article I, Sec. 17, 

Dear Mr. Reaweber: Coaetitution of Texaa.~ 

You have requested an opinion fllom this offiob on the 

following matter: 

Whether the lnterferenoe with rlparlan rights of 

access by conptruction of a highway bridge with a 

fender system in a ntivlgable ntrsam uonstltutes a 

taking of property within the meaning of Article I, 

Sectfon 17, Constitution of ‘Ihxas. 

Your opinion request and cubsequent aorrespondence haa 

shown that the State Highway Department has constructed a 

rolling lift bridge (draw bridge) with’s fender ayatem in 

Clear Creek, a navigable stream. ” ‘19re Sender systim ccnmiats 

of pilings whloh are conneated by heavy timber8 and la entirely 

free of the bridge aonatruatlon. Thle~ 6yetem keeps ships In 

the dredged part oft the channel, keeping them~%n a straight 

passage and keeping them from beaohing or hlttlag the bridge 

piers. The diagram you enclosed with your oorre~pondence also 

shows that blinking lights are attached IXJ the fender spatem. 

The north fender system uhlah doe8 ‘mot toaeh the shoreline, 

aeema to be the fender that IS the baai OS this OplnlOn request, In that it might deny amem! to tlu water oompletely or 

aubstantlally,mstr~ct aooees~af tbe .riper%u owner who 0-s 

the land next to, the right ,of way of State Highway 146. Ib 

thirr case Umfender system war wJwl&y oonrtrwted within the 

bed of the stream. 

In Btotz v. E&d, 116 Tax. s;, ,peti ,s.w. .&a8 (19It6), the 

Supreme Court h ld fiat it *rr) wlWout dUpu9e~that the State 

owna the bed 6f’navigtible rtr&&aii%eU IS N&e waters which 

flow therein and are to be oomkvoUad &&umd of by the 

State for ,the beet %ntereet of ,Bha . klge Cureton 8tated: 
Honorable Joe Resweber, page 2, Opinion No. C-340 

II 

. . . The waters are in trust for the public: 

First, for navigation purposes, which concerns all 

the public and is ordinarily regarded as a superior 

right; second, the riljarian waters of the stream 

are held in trust by the state for the ~riparian 

owners along its margins; . . .I’ 

,“, ::pi: ,,:’ .-,,<1 :.y I

The Supreme iourt ‘in ‘an earlier opinion 

“,, ,.~ ‘~~ >,,,.,.: 

Se 1man.i i.vv, W o.lfe ,‘~ 

27 Tex. 68 (x363), held’.that nav’igable strea& within the’ “‘ 

State are public. highwaysand are exclusively subject to the 

controls of the ‘Sttite.,’ ‘: .: ,;:: > I’: 

,‘, , ^ ;; 

‘The, Must i:n-,.~C~c~agoi::R..,E. :& G. Ry. Co. v. Tarrant Co. 

Water Control,,,eto..,, 12,3 ,Teki 432, 73 S.W.2d 55 (1934) at page 

70 stated: 

.~, ,,,.,’ 

“Dfi7 The authorities also appear to be uniform 

.in, holding’: that: .&ons@uential damagesi ineLdenE to ; ! 

navigation improvements must be borne by Vhe party 

affected, and not by the government. . . .” 

The s’ame Count ,in ‘~Bxazos River Auth.ority v.. City of Gra- 

@, 163 Tex. 167,, 354 S&W .2d 99 (1961) ,: held at page’ 131’: 

!.. 

“The petitioner repeats that th,is Is :a”dase of ‘, 

damnum absque injuria. A number of authorities are 

cited as supporting! th1.s position. ,There Is in the 

law rela~ting.,to, waters~ a~ class ,of cases which hold. 

that, certain.:injuries, to land caused, by artificial 

changes in the channelof a stream. i.n aid :of navigation.orthe .eonstruqtion of revetment works designed~ 

to prevent .eroslon bytwater are noncompensable. The 

true basis of the holdings ofthe.naviga;ion cases 

seems to restin the police power.~ i : . 

,_ ,:’ ‘,.. : 

The UnLted StatesSupreme Court” in Scranton v. Whe,e le r ,’ 

179 U.S. l&l (1900);:~concernimg~ a pier constructed by the 

governme,nt in a-,canal, stated:;. 

<y>‘~ ‘, -, ., 

“If the ripa,rla,n, owner dannot enjoy access :to 

navigability, be,,cause ‘of. the ,improvement: 4f haviga- : :’ 

tion by the eonatructlbn,,:away. .from the; .shoreline of 

works in a public navigable river or water,: and if 

such right of access ceases alone for that reason 

to be of value, thereis,.@, within the: :mea,ning :of’ 

the Cons,tit&ioq, a ta~klngof,pr$vate property ;for 

public .use . i but? :onXv a -,.e,orrse~uentia1:.:,i~.l~rv’ to a’ ,, 
Honorable Joe Resweber, page 3, Opinion RQ. C-340 

public'--an injury resulting incidentally from the 

exercise of a governmental power for the benefit of 

the general public, and from which no duty arises 

to make or secure compensation to the riparian 

owner." (Underlining added.) 

2 Nichols on Eminent Domain, (3rd Ed.) on page 251 states: 

II 

. . . The United States or a state ma,y even construct works in aid of navigation in the bed of a 

navigable watercourse which wholly cuts off access 

from the riparian land to the water without any 

obligation to make compensation arising. . . . 

'The reason for the immunity of the public authorities from liability to make compensation, when private property is invaded or valuable riparian rights 

destroyed by the construction of works in aid,;of 

navigation, is not based upon the fact that such injury is not severe enough to constitute a taking, 

but that it is an exercise of the public easement, 

and a use by the public of the public domain. There 

are no private rights in navigable watersthat are 

not held subject to the public easement or which 

conflict with or encroach upon the rights of the 

public in respect to navigation." 

See also 65 C.J.S. 157, Navigable Waters, Sec. 67~. 

Based upon the above authorities, it is our opinion that 

the State can construct a highway bridge with a fender system 

in a navigable stream on the submerged land and that a landowner 

has no such right under the Constitution that would entitle him 

to be compensated for any loss of access from his upland to the 

body of water in question, resulting from the erection and 

maintenance of the fender system by the State of Texas, in order 

to improve the navigation of a public naviga,ble waterway. 

SUMMARY 

The interference with riparian rights of access 

by construction of a highway bridge with a fender 

system in a navigable stream, which is in aid of 

navigation, is not a taking of property within the 

meaning of Article I, Sec. 17, Constitution of Texas. 

1613 
Honorable Joe Resweber, page 4, Opinion No. C-340 

Yours very truly, 

WAGGONER CARR 

Attorney General of Texas 

BY 

CHARLES R. LINq 

Assistant' Attorney General 

CRL:da 

APPROVED: 

OPINION COMMITTEE 

W. V. Geppert, Chairman 

Arthur Sandlin 

Milton Richardson 

Bill Osborn 

Pat Bailey 

APPROVED FOR THE ATTORNEY GENERAL 

By: Roger Tyler