Honorable Sam Lee

DistrictAttorney Brazorla County Angleton,Texas opinfon~0, ~~4.76
Re:, Does the Retrieve State Farm, a unit of the Texas P&son System,have the authorftyto run a fence across Buffalo Camp Bayou at a point entirelywPthfn the prison owned property?

Dear Sir:

In your letterdated,May 24, 195T9 requesting our opinion,you ask the followingquestion and stated fn part the followfngfacts8

"The questfon fas Does the Retrieve State Farm, a unit of the Texas Prison System,have the autharfty to run a fence aerosa BuffaloCamp Bayou at a point entirely wfthfn the pPfson owned property?
"The prfson system owns the land on both sides of the Buffalo Camp Bayou. Buffalot Camp Bayou empties %nto the Bravos Rfver and from its mouth to the pofnt of the fence fs more than 30 feet fn wfdth. "Iieither

the S.F. Austin nor the Jared E. Qroce OriginalGrants make any mentfon of nuffalo Camp Bayou, and, therefore,do not exceptBuffalo Camp Bayou from the orfgfnal grants. The deed from the ownerswhb conveyed the property,now known as Retrieve State Farm, to the State of Texas on the 1st day of February, 1918, does not mention. . ,.

Honorablesam Lee, page 2 (~~-176)

Buffalo Camp Bayou nor except it from that conveyance. "Therefore,the State did not reserve any record title to Buffalo Camp Bayou. However, the Congress of the Republic of Texas, In 1837, enacted a statute stating in part as follows: *All streams so far as they retainan average width of 30 feet from the mouth up shall be considerednavigable streamswFthin the meaning hereof and they shall not be crossedby the lines of any survey.' "This statute is carried forwardas Article 5302 of the Revised Civil Statutes of Texas." Navigable streamswithin this state are beyond question the highways of the State and subjectto the excluslve control of the Legislatureand may either be wholly or partiallyobstructedif In the Legislature's judgmentthe public Interest will be promotedby so doing. Felman v. Wolfe, 27 Tex. 68 (1863). We have been unable to find any legislativeenactmentwhich vould authorize the Texas Prison System to obstructa navigable stream.

As cited In the statementof facts contained in your letter,Article 5302,V.C.S., defines a navigable streamwithin this State as a streamwith an average width from the mouth up of thirty feet. Assuming for the purposes of this opinion,that the bed of Buffalo Camp Bayou has been relinquished b the Legislature under the authorityof Article 541 a, % known as the "SmallAct', V.C.S., popularly the right to the water within the streamwas not affected. This statute containsthe followingprovlsiona:

"Providedthat nothing In this act containedshall lmpzti.~ the rights of the generalpublic and the State in the waters of streams or the rights of riparian or appropriation owners In the waters of such streams.'HonorableSam Lee, page 3 ,(~~-176)

ThereroPe,i% fs our opllnLon that the "Small. Act* dfd not prsvlde Legislative authorftyfor the ownera of beds of 'navigable streams'toobs%Fuctthe aame noE to exclude:

the generalpublic therefrom;

In Tyler v. Goneales' 189 S.W.id 519 :(,C$&.l bpeals, 1945, vrlt rep.) th t he d that a landowner (the land i vas assumedby tie c&?to come under the 'SmallAot") could run a fence to the mltdd2e of a e%ream and then run the fence down the thread of such ~%~eam. In this case the court said, afte~ stattng there ~a5 no evidenceto show the fence constituted

a n@aanoe, "We take 1% thereforethat appellees are not contemplrrting the ~~~st~~~%~~~ob" a fence whfch would pass to the east of %he ths?ead of the a%peammiThe attempted construction

across the bed of the atkeamwould raise the further and addftional~~~a~~~~s,w~~~~ are n,o%

dfseuased fn this opinton.". I

It fs ouF ap?$r(1908 ,that %be restkfctfvereservation fn the "SmallAct" rese%v%ngthe'rQh%a of the genepal public to the waters of the streams of %h%er State did not change the exfsting law relati,ng to the obstraotionof navigable streams 0 In addftion,the use of streams fop transportation has long been coaezide~ed one of the prfmaq rights of the generalpublic to the waters of thXs State and fs protected by Article ~83~ Penal code, wh%& ppovP,des a fine of not less than Fifty non more than Five Hundred Dollars for whoever shall obs%ruotany s%~eam %n %his State whfch fs navigable ,fnfact.

9h&sefcpre,

~regatilesa

h9f whether the Texas Prlaon System owns the bed of the stP@am mde~ the provfsfotis of the "SmallAct", we coneludethat there is no authoretg by which the Prison S;rretem may m%%ntaia a fence across such stream and exclude the gemem public from the use of the r.Tat.epa

of such streams fo~navigation,:ffshingor any other legal use. The SupremeCourt held fn Dfversion Lake Club v. Heath, 126 Tax. 129, 86 S.W.2d ai lr that where a dam across a mavigab9estream flooded land, privatelyowned, the p~Sva%e owgaek conld not deny the ~~. publfc the right to ftsh L&I the water over his land although the publ%e had no sight to use the banks.

On the other hand, alrace the general publfc would be entitled only to the u8e and edJoymea%of the vaters wfthfn the streamaaad not the dry bed thereof,we are of the onfnfon that the Texas Prison System could. - c.. ^

Herrorable

Sam Lee, page 4 (~1176)

maintaina fenoe acrema the dry bed of a stream navigable in law though not navigable18 fact, eo long as such a fence did not aoastltutea nuSsance

### ana did not lnterrtere wSth any legal right the public might have in and to said stPeams. Tyler v. Qoazalea, supra.

The Bettieve State Farm has no authority to run a fence acroee Buf'ralo Camp Bayou at a point entlrelgwithin the prison ewned property,if such a fence would claptire the general publle **fpom** the uee and enjoymentof the waters containedtherein. Such a fence could be maintaineddurimg the time there was no water la the bed of the stream 80 long a8 suah a fenoe did not create a nuisanre.

Yours very truly,

UILL WILSOIV AttorneyGeneral of Texas

APPBOVED:
OPIFJIOEl

COMMITTEE

H. Grady Chandler,Chairman
Larry Jcner Milton Riahardson Joe G. Rollins

REVIEWEDFOR TRE ATTORNEY GEl‘iERALBYt

Geo. P. Blackburn