Honorable Sam Lee 

District Attorney 

Brazorla County 

Angleton, Texas opinfon ~0, ~~4.76 

Re:, Does the Retrieve State 

Farm, a unit of the Texas 

P&son System, have the 

authorfty to run a fence 

across Buffalo Camp Bayou 

at a point entirely wPthfn 

the prison owned property? 

Dear Sir: 

In your letter dated,May 24, 195T9 requesting 

our opinion, you ask the following question and stated 

fn part the followfng facts8 

"The questfon fas Does the Retrieve 

State Farm, a unit of the Texas Prison 

System, have the autharfty to run a fence 

aerosa Buffalo Camp 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 Original Grants make any mentfon of 

nuffalo Camp Bayou, and, therefore, do not 

except Buffalo Camp Bayou from the orfgfnal 

grants. The deed from the owners whb conveyed the property, now known as Retrieve 

State Farm, to the State of Texas on the 

1st day of February, 1918, does not mention 
. . ,. 

Honorable sam 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 retain an average width of 30 feet 

from the mouth up shall be considered navigable streams wFthin the meaning hereof 

and they shall not be crossed by the lines 

of any survey.' 

"This statute is carried forward as 

Article 5302 of the Revised Civil Statutes 

of Texas." 

Navigable streams within this state are beyond 

question the highways of the State and subject to the excluslve control of the Legislature and may either be 

wholly or partially obstructed if In the Legislature's 

judgment the public Interest will be promoted by so 

doing. Felman v. Wolfe, 27 Tex. 68 (1863). We have been 

unable to find any legislative enactment which vould authorize the Texas Prison System to obstruct a navigable 

stream. 

As cited In the statement of facts contained 

in your letter, Article 5302, V.C.S., defines a navigable 

stream within this State as a stream with 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 authority of Article 541 % a, 

known as the "Small Act', 

V.C.S., popularly 

the right to the water within 

the stream was not affected. This statute contains the 

following provlsiona: 

"Provided that nothing In this act 

contained shall lmpzti.~ the rights of the 

general public and the State in the 

waters of streams or the rights of riparian or appropriation owners In the 

waters of such streams.' 
Honorable Sam Lee, page 3 ,(~~-176) 

ThereroPe, i% fs our opllnLon that the "Small. 

Act* dfd not prsvlde Legislative authorfty for the ownera 

of beds of 'navigable streams'to obs%Fuct the aame noE to 

exclude: the general public therefrom; 

In Tyler v. Goneales' 189 S.W.id 519 :(,C$&.l bpeals, 

1945, vrlt rep.) th t he i d that a landowner (the land 

vas assumed by tie c&?to come under the 'Small Aot") 

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 evidence to show the fence 

constituted a n@aanoe, "We take 1% therefore that appellees 

are not contemplrrting the ~~~st~~~%~~~ ob" a fence whfch would 

pass to the east of %he ths?ead of the a%peammi The attempted 

construction across the bed of the atkeam would raise the 

further and addftional ~~~a~~~~s,w~~~~ are n,o% dfseuased fn 

this opinton.". I 

It fs ouF ap?$r(1908 ,that %be restkfctfve reservation 

fn the "Small Act" rese%v%ng the'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 obstraotion of navigable 

streams 0 In addftion, the use of streams fop transportation 

has long been coaezide~ed one of the prfmaq rights of the 

general public 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%ruot any s%~eam %n %his State whfch fs navigable ,fn fact. 

9h&sefcpre, ~regatilesa h9f whether the Texas Prlaon 

System owns the bed of the stP@am mde~ the provfsfotis of 

the "Small Act", we conelude that 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,:ffshing or 

any other legal use. The Supreme Court held fn Dfversion 

Lake Club v. Heath, 126 Tax. 129, 86 S.W.2d ai lr 

that where a dam across a mavigab9e stream flooded land, 

privately owned, 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 stream aaad not the dry bed thereof, we 

are of the onfnfon that the Texas Prison System could 
. 

- 

c.. ^ 

Herrorable Sam Lee, page 4 (~1176) 

maintain a fenoe acrema the dry bed of a stream navigable 

in law though not navigable 18 fact, eo long as such a 

fence did not aoastltute a 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 entlrelg within 

the prison ewned property, if such a 

fence would claptire the general publle 

fpom the uee and enjoyment of the waters 

contained therein. Such a fence could 

be maintained durimg 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 

Attorney General of Texas 

APPBOVED: 

OPIFJIOEl COMMITTEE 

H. Grady Chandler, Chairman 

Larry Jcner 

Milton Riahardson 

Joe G. Rollins 

REVIEWED FOR TRE ATTORNEY 

GEl‘iERALBYt 

Geo. P. Blackburn