/l (b OFFICE OF



# THEATTORNEYGENERAL

AUSTXN. TEXAS Gerald C. t&M !2&w~~YGENERAL

Hon. BasoomGiles, 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 anundivided Interest therein, in the exoess of surveys crossing navigable streams, which have been validated by the %mall LandBilln? In your letter of September 24, 1943, you-give us certain facts, which maybe summarized as follows:

Youhave been requested to patent twotracts of school land, which were surveyed across navigable streams. Awardswere mademore than ten years prior to the effective date of the “Small LandBill”, 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 makeup 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. BascomGiles, page 2

You are respectively advised that the State of Texas should take a separate parcel of the river bed, ana not anundivided interest in the whole thereof.

TheWnall LandBill’l, supra, validated all patents to ana awards of lands lying across or partly aoross water oourses or navigable streams andall patents and awards cov$ring andincluding 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 andhave not been o8ncelled or forfeited. Noexcess acreage is recognized under this law. State v. Bradford, 50S. W. (26) 1055. If the patent or award is otherwise within the terms andprovisions of the 9mall LandBill”, but contains a numberof acres of land in excess of the amountof laud conveyed to the patentee or awardee, the.question arises as to howsuch excess is to be apportioned.In the case of Heard, et al. v. Townof Refugio, 103 S, W. (2d) 728, involving four leagues granted by Coahuila and Texas to the Townof Refuaio. and construing the eSmal1 LandBill”, 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. Theseoond seotion of the aot oontafns a provision that it shall not *relinquish or quit-claim any numberof acres of land in excess,of the numberof acres of land conveyed to said patentees or awardees in the original patents granted by the State.’
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“The record oontains no evidence as to the numberof acres within the boundaries of the four leagues of land surveyed for the Townof RefugioHon. BasoomGiles, 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, nomore 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 Townof 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 muchas four leagues of land, judgmentwill be rendered in favor of the state ror the title andpossession of the river bed. If the State of Texas becomes a party to the suit andit is found that the said tract surveyed for the townoontains, exclusive of the river bed, less than four leagues of land, Judgment will be rendered. under nrober pleadim Eartitionina the entire river bedwithin the said’ tract surveyed for the town in 1834 between the i State of Texas and the Townof Refwio in suoh manner numberof acres of river bed area suffioient t

. Themethod of fi lver bed and the adjoining lands is stated in Mot1v. Boyd, 1.16Tex. 82, 109, 2865. W. 458, and in Diversion Lake Club v. Heath, 126 Tex, 129, 141, 865. W. (2d) 441.” (Emphasis added1 Webelieve that whenthe oourt said, *partitioning the entire ,river bed , , . between the State of Texas andthe Townof Refugio

’, it intended that the river bed should be separate& and divided into parcels, and that eabh should bedon. BasoomOiler, 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, weare Yours very ‘truly ATPORNEYGENERALOF!l!EXAS

TBD:fo: Jm O.K. C.C.R.

APPROVED

NOV.8, 1943 (signed) Grover Sellers FIRSTASSISTANT ATTORNEYGENERAL
i. BY (signed) Those B. Duasn, Jr

Assistant

APPROVED Opinion Committee BY BWB Chairman