THE'ATTOF&NEY GENERAL OF TEAxAS

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_,~ ,. ,~ 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+klmgof 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. ”‘19reSender 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 IXJthe fender spatem. The north fender system uhlah doe8 ‘mot toaeh the shoreline, aeema to be the fender that IS the baai OSthis 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 

### wayof 

### StateHighway 146. Ib thirr case Umfender system war wJwl&yoonrtrwted within the bed of the stream. In Btotzv. E&d, 

### 116Tax. 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&ewaters 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, OpinionNo. 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‘anearlier opinion “,, ,.~‘~~ >,,,.,.: Se1man.i i.vv, Wo.lfe ,‘~ 27 Tex. 68 (x363), held’.that nav’igablestrea& within the’“‘ State are public.

highwaysand are exclusively subject to the controlsof the ‘Sttite.,’ ‘: .: ,;:: >I’: ,‘, ,^;; ‘The, Must i:n-,.~C~c~agoi::R..,E. :&G. Ry. Co. v. Tarrant Co. Water Control,,,eto..,, 12,3 ,Teki432, 73 S.W.2d 55 (1934)at page 70 stated:

.~, ,,,.,’

“Dfi7 The authorities also appear to be uniform .in, holding’:

that:.&ons@uential damagesiineLdenE to ;! navigation improvementsmust be borne by Vhe party affected, and not by the government.
. . .” The s’ameCount ,in‘~Bxazos River Auth.ority

v..City of Gra- @, 163 Tex. 167,, 354 S&W.2d 99 (1961),: held at page’131’: !.. “The petitioner repeatsthat th,isIs:a”dase of ‘, damnum absque injuria. A number of authorities are cited as supporting! th1.s position. ,ThereIs in the law rela~ting.,to,

waters~a~class ,ofcases which hold. that,certain.:injuries, to land caused,

by artificial changes in the channelof a stream.i.naid :ofnavigation.orthe .eonstruqtionof revetment works designed~ to prevent .eroslonbytwater are noncompensable. The true basis of the holdings ofthe.naviga;ion cases seems to restin the police power.~i :
. ,_ ,:’ ‘,..: The UnLtedStatesSupreme Court”inScranton v. Whe,e ler,’ 179 U.S. l&l (1900);:~concernimg~ a pier constructed by the governme,ntin 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;.shorelineof 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$vateproperty ;for public .use

.i but?:onXva-,.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 governmentalpower for the benefit of the general public, and from which no duty arises to make or secure compensation to the riparian owner." (Underliningadded.)
2 Nichols on Eminent Domain, (3rdEd.) on page 251 states: II

. . . The United States or a statema,yeven 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 ofworks 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 navigablewatersthat are not held subject to the public easement orwhich 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 ofwater 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 interferencewith 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.

1613Honorable 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