Oc,:ober29, 1986

P Honorable Curtis R. Wilkin3on

Lamb CountyAttorney County Courthouse,Room 103 Littlefield,Texas 79339 OpinionNo. JM-572
Re: Whether a lake in a municipal park is publicwater under the jurisdiction of the Texas Department of Parks and Wildlife for purposes of theWater SafetyAct
Dear Mr. Wilkinson:
You inquirewhether aBlakein a certainmunicipal park is public 'water within the meaning of the Water Safety Act and subject to the jurisdiction of the Texm Department of Parks and Wildlife for purposes of theWater SafetyAct.
A home rule cityhas leased for recreationalpuxposes a reservoir and adjacent shorelineon private ranch land outside the limits of the city. We are advised that thereservoir is approximately 1200 surface acres and is fedby.underground springs and rainfalland that citizens of the area have used the lake extensively for swimming, skiing, fishing, and camping for many years. By ordinance, the city has declared the reservoir ani.adjacent shoreline a municipal park for as long as the ordinance and long term lease remain in effect. The city also adopted the provisionsof the Texas Parks andWildlife Code as an ordinance to govern thebehavior in and use of themunicipalpark. Statutoryand case law determinewhether specificbodies of water are the property of the slate. Statutory law now codified as section 11.021(a)of theWater Code provides that

- [t]he water of t!leordinary flow, underflow, and tides of every :il.owing river, natural stream, and lake, and of evserybay or arm of the Gulf of Mexico, and the stormwater, floodwater,and rainwater of every river, natural stream, canyon, ravine, depressi.on, and watershed in the state is the property of the state. The statute has been interpreted by the courts in light of the constitution and the law under which lands were granted. Water from springs and surfacewater Erom rainfall covering private land is not

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always state water within the meaning of section 11.021(a). See Turner v. Big Lake Oil Co., 96 S.W.2d 221, 228 (Tex. 1936) (rainwater on private land);

- San Antonio 527 S.W.2d 754, 759 (Tex.Civ. App.

1974, n.r.e.) (ownership of water from springs). See also Diversion Lake Club v. Heath, 86 S.W.2d 441, 446 (Tex. 1935) (waterdiverte(Tfromnavigable stream);Reed v. State, 175 S.W.2d 473 (Tex.Civ.App. - Eastland 1943,no writ) (surfacewater in non-navigable lake); Taylor ,FishingClub v. Hasauett,88 S.W.2d,127, 130 (Tex. Civ. App. - Waco 1935, writ dism'd) (water from springs, rainfall, and floodwaters in non-navigable inland lake); Attorney General Opinions H-805 (1976); H-68 (1973); M-1210 (1972); O-6579 (1945). The question of whether specific water is state water under section 11.021(a) of the Rater Code usually involves facts that this office cannot determine in the opinionprocess, such as the source and location of the water. However, the real issue before us is whether the reservoir is publicwater for purposes of theWater SafetyAct and not whether it is the property of the state. In our opinion, the lake -on private land that is lt!asedto the city for recreationalpurposes and used as a publicmunic:.pal park is publicwater within themeaning of the Water Safety Act, and the Parks and Wildlife Department may enforce the act. The provisions of theWater SafetyAct "apply to all public water in this state and to all watercraft navigated or moving on the public water." Privately ownedwater is not subject to the provisions of the Water Safety Act. Parks 6 Wild. Code §31.004. Section 31.003 of the Parks andWildlife Code provides that

[l]n this Chapter [theWater SafetyAct]:

. . . I (5) 'Water oj! this state' means any public water within the territorial limits of this state. The Water Safety Act does not define "any public territoriallimits of this state. The legislature, the policy of the act. Se:tion 31.002provides:

It is the duty of this state to recreationalwater safety for persons and water" within the however, did state

promote property in and connectedwith the use of all recreational water facilities in the state, to promote safety in the operatior-and equipment of facilities,and to promote uniformity of laws relating to waZZ safety. (Emphasesadded).

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.
P
We do not construe the charter powers of the city but assume,

without deciding, that the city is authorized by its charter to acquire property for use as a city park. A city is authorized by state statute to acquire and operate property for recreational purposes, including land outside the city limits. See V.T.C.S. art. 6081e (citiesmay acquire lyr gift, devise, purchasezr condemnation land for oublic uarks wit:l:Ln or without limits of the citv): art. 6081f (cities may acquire land for park purposes and ope&;e and maintain parks). See also V.T.C.S. arts. 1015c-1; 1176; City of College Stationv. TurtleR%k Corp., 680 S.W.2d 802, 807 (Tex. 1984); Attorney General Opinions Tt-889,M-804 (1971). A city's power to acquireproperty formunicip.al purposes implies thepower to lease it. See Attorney GeneralOpinionNos. MW-535 (1982);O-6911 (1945). - A lease of real property is a sale of the right to use and occupy theproperty for a certain period of time and is a transferof a right of ownershipand an interest in theproperty. See StateNational Bank of El Paso v. United States, Citizens Bank and Trust CoTv. 509 F.2d y32.835 (5th Cir. 1975); Wy-Tex Livestock Co., 611 S.W.2d 168, ‘171 (Tex.Civ.App. - Amariilo 1981,writ ref'dn.r.e.);L. A. Durrett h Companyv. Iley, 434 S.W.Zd 367, 371 (Tex.Civ. App. - Dallas 1968, writ ref'dn.r.e.). In Evansv. Ropte, 96 S.W.2d 973 (T&x. 1936). the court, quoting from a dis&sion by Emory Washburn in his book on Servitudesand Easements,points out that a right to take,water from a spring or well is a grant of own.srship and constitutes an interest in real estate. The Texas Supreme Court has stated that a municipal park is a place where the public gene.rally.maygo for various kinds of recreaiion and amusement. L&S v. City if-Fort Worth, 89 S.W.2d 975, 978 -- (Tex. 1936). See also ICi!y; v. Sheppard, 157 S.W.2d 682, 685 (Tex. Cl". ADO. - Austin 1941. writ ref'd w.o.m.) (oublic oark is ulace which public at largemay-resort to for recreation). Land acquiredby a city for use as a public park is acquired for a public use. It is our opinion tha,tthe fact that the city owns a leasehold interest in the lake which is used as a public municipal park ana'"a recreationalwater facility in the state"makes the lake public water for purposes of the Water Safety Act. We conclude ,that,during the duration of the lease to ~1e city and the city's use of the lake as a municipal park, the lake is not privately owned water within the meaning of the Water Safety Act. Hence, it is not excluded from the provisions of the act.
SUMMARY

A lake on private land that is leased to a city for recreational purposes and used as a public municipal park illpublic water within the meaning

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of the Water Safety Act, and the Parks and Wildlife Departmentmay enforce the act. Very trulyyours,

. 

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JIM MATTOX Attorney General of Texas JACK HIGHTOWER First AssistantAttorney General
MARY KELLER ExecutiveAssistantAttorneyGeneral
RICK GILPIN Chairman,Opinion Committee 'Preparedby Nancy Sutton AssistantAttorney General ,

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