/l (b 

OFFICE OF 

THE ATTORNEY GENERAL 

AUSTXN. TEXAS 

Gerald C. t&M 

!2&w~~ Y GENERAL 

Hon. Basoom Giles, Commissioner 

General Land Office 

Austin, Texas 

Dear Sir: Opinion No. O-5635 

Re: Should the State of Texas 

take a separate parcel of 

the river bed, or an undivided Interest therein, 

in the exoess of surveys 

crossing navigable streams, 

which have been validated 

by the %mall Land Billn? 

In your letter of September 24, 1943, you-give us 

certain facts, which may be summarized as follows: 

You have been requested to patent two tracts of 

school land, which were surveyed across navigable streams. 

Awards were made more than ten years prior to the effective 

date of the “Small Land Bill”, Acts of the 41st Legislature, 

1929, page 29g, Chapter 138, oodified as Article 54&s, 

V. A. C. 5, lhere is excess in each survey, but neither 

survey contains sufficient acreage exclusive of a portion 

of the river bed, therefore, the awardees are entitled to 

enough of the river bed to make up their awarded acreage. 

Since the awardees are to get a portion of the 

river bed, you request our opinion upon the following: 

Should the State of Texas take a separate parcel of the 

river bed, or an undivided interest therein? 
Hon. Bascom Giles, page 2 

You are respectively advised that the State of 

Texas should take a separate parcel of the river bed, ana 

not an undivided interest in the whole thereof. 

The Wnall Land Bill’l, supra, validated all 

patents to ana awards of lands lying across or partly aoross 

water oourses or navigable streams and all patents and awards 

cov$ring and including the beds or abandoned beds of water 

oourses or navigable streams or parts thereof, which patents 

or awards have been issued and outstanding for a period of ten 

years from the date thereof and have not been o8ncelled or 

forfeited. 

No excess acreage is recognized under this law. 

State v. Bradford, 50 S. W. (26) 1055. If the patent or 

award is otherwise within the terms and provisions of the 

9mall Land Bill”, but contains a number of acres of land in 

excess of the amount of laud conveyed to the patentee or 

awardee, the.question arises as to how such excess is to be 

apportioned. 

In the case of Heard, et al. v. Town of Refugio, 

103 S, W. (2d) 728, involving four leagues granted by Coahuila 

and Texas to the Town of Refuaio. and construing the eSmal1 

Land Bill”, supra, the court sali: 

” It is apparent that the act gave 

the Toin’o; iefugio title to ,that portion of the 

bed of Mission river within the bounds of the four 

leagues granted to the town, unless the tract granted, 

including the river bed area, contains more than 

four leagues of land. The seoond seotion of the aot 

oontafns a provision that it shall not *relinquish or 

quit-claim any number of acres of land in excess,of 

the number of acres of land conveyed to said patentees 

or awardees in the original patents granted by the 

State.’ 

n 

. . . 0 

“The record oontains no evidence as to the 

number of acres within the boundaries of the four 

leagues of land surveyed for the Town of Refugio 
Hon. Basoom Giles, page 3 

In 1834, and the cause will be remanded to the 

distriot oourt for asoertalnment of that faot. 

If it is found that the tract surveyed for the 

town in 1834 oontains, including the river bed, 

no more than four leagues of land, judgment will 

be rendered ln ravor of the defendant in error 

(whether the State of Texas beoomes or does not 

become a party to the suit) for the title and 

possession of the part of the land described 

in its petition whioh Is a portion of the bed 

of the Mission river. If the said traot surveyed 

for the Town of Refugio is found to contain, iaeluding the bed of the river, more than four 

leagues of land, judgment will be rendered dismissing the cause, unless the State of Texas becomes a party to the suit. If the State of Texas 

becomes a party to the suit, and it is round that 

the said tract surveyed for the town oontains, 

exclusive of the river bed, as much as four 

leagues of land, judgment will be rendered in 

favor of the state ror the title and possession 

of the river bed. If the State of Texas becomes 

a party to the suit and it is found that the said 

tract surveyed for the town oontains, exclusive 

of the river bed, less than four leagues of land, 

Judgment will be rendered. under nrober pleadim 

Eartitionina the entire river bed within the said’ 

tract surveyed for the town in 1834 between the 

i 

State of Texas and the Town of Refwio in suoh 

manner 

number of acres of river bed area suffioient t 

. The method of f i 

lver bed and the adjoining 

lands is stated in Mot1 v. Boyd, 1.16 Tex. 82, 109, 

286 5. W. 458, and in Diversion Lake Club v. Heath, 

126 Tex, 129, 141, 86 5. W. (2d) 441.” (Emphasis 

added 1 

We believe that when the oourt said, *partitioning 

the entire ,river bed , , . between the State of Texas and the 

Town of Refugio’, it intended that the river bed should be 

separate& and divided into parcels, and that eabh should be 
don. Basoom Oiler, page 4 

vestetl with title to a separate and specifio part thereof, 

with the exclusive right of possession thereto. 

Trusting that the above fully answers your question, 

we are 

Yours very ‘truly 

ATPORNEY GENERAL OF !l!EXAS 

TBD:fo: Jm 

O.K. C.C.R. 

APPROVED NOV. 8, 1943 

(signed) Grover Sellers 

FIRST ASSISTANT 

ATTORNEY GENERAL 

i. 

BY (signed) 

Those B. Duasn, Jr 

Assistant 

APPROVED 

Opinion Committee 

BY BWB 

Chairman