JOHN L.HILL Attorney General 

# TheAttorney General ofTexas

November 14, 1977

Honorable Henry Burkett Executive Director Texas Parks andWildlife Department Austin, Texas 70744 Opinion No. H-1090

Re: Lease of waters by city toprivate individuals for shrimp mariculture purposes. Dear Mr. Burkett:

Your office has requested our opinion concerning several general questions involving the jurisdiction of the Parks andWildlife Department regarding fish inwaters over privately owned beds and the legality of a grant of exclusive rights of fishery. Additionally, you asked specifically whether the City of PortArthur may lease a spoil disposal site to aprivate individual with exclusive rights of fishery. We are unable to answer the general questions since jurisdiction and property rights necessarily depend upon the facts of each case and the type of jurisdiction asserted. However, the authorities which bear upon these questions are discussed with reference to the specific question concerning Port Arthur.
The property inquestion was sold to the city pursuant toActs 1967, 60th Leg., ch. 206, at 452,which provides inpart:

Section 1. The City of Port Arthur, being indire need of an area for commercial, recreational and industrial development, and inorder toprovide a spoil area to the Corps of Engineers for re-working and cleaning out the Intracoastal Canal in the Sabine Lake area, is hereby authorized topurchase the following described lands

. . . . Section 2.

. . .the Commissioner of the General Land Office ishereby authorized to convey to the City of PortArthur the following described lands with all oil,

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gas, and other minerals reserved to the state, along with the leasing rights as presently set out by current law

. . . . See Lakefront Trust, Inc. v. City of Port Arthur, 505 S.W.2d 606 (Tex:Civ. APP. -- Beaumont 1974,writ ref'd n.r.e.) (involves land conveyed to the City of PortArthur pursuant to this statute). The subject property has been used by the Corps of Engineers for a spoil disposal site: the Corps has constructed a leveewhich separates the area from thewaters of Sabine Lake. We have been informed that the only connection with the lakewaters is adrain pipe which isusually clogged and is opened only when the Corps isdumping spoil into the area, approximately once every three years. Thus it appears that thewaters in the spoil disposal area, while formerly constituting aportion of Sabine Lake, are atpresent generally not subject to the ebb and flow of the tide.

It isgenerally held that a conveyance by the State of the bed under navigable or public water does not, absent a clear expression to the contrary, convey thewaters or exclusive riahts of fisherv: rather, the arantee takes the bed subject-to thepiscatory rights of thepublic. Heard v. Town of Refuqio, 103 S.W.2d 728 (Tex.1937); North American Dredging co. ". Jennings, 184 S.W. 287 (Tex.Civ.App. --Galveston 1916, nowrit). See Carter v. Hawaii, 200U.S. 255 (1906);Diversion Lake Club v. Heath, 86S.W.2d 441 (Tex.1935); H. Farnham, The Law ofWaters andWater Riqhts 9 401 (1904). Furthermore, section 5.021(a) of theWater-Code provides inpart:

The water of the ordinary flow, underflow, and the tides of every . . .lake, and of every bay or arm of the Gulf ofMexico

. . . is the property of the state.
See also City of Galveston v. Mann, 143 S.W.2d 1028 (Tex. 1940). Consequently, if thewater in the spoil disposal area was navigable or public at the time of the conveyance to the city, the state retained ownership thereof, and thus of the fish therein. Stephenson v.Wood, 34S.W.2d 246 (Tex.1931); Parks andWildlife Code § 1.011(c).
However, inDiversion Lake Club v. Heath, supra, the court noted that:

The general rule iswell established

. . . that the right to fish in a stream, whether belonging to the public in common or exclusively to the owners of the land bordering

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the stream, isdetermined by the ownership of the bed.
86 S.W.2d at 443. In that case the court apparently refused to follow this rulewith regard to navigable orpublic waters, but seeFisher v. Barber, 21 S.W.2d 569 (Tex.Civ. App. -- Beaumont 1929, nowrit), but itappears applicable to nonnavigable waters. See, -, Reed-v. State, 175 S.W.2d 473 (Tex.Civ.App. --Eastland 19 Taylor Fishinq Club v. Hammett, 88 S.W.2d 127 (Tex.Civ. App. --Waco 1935, writ dism'd); Fin &Feather Club v. Thomas, 138 S.W. 150 (Tex. Civ. App. -- Dalas 1911) rev'd on other grounds, 171 S.W. 698 (Tex.1914). See Henrietta Countr 137 (Tex.Civ.Tp. y Club v. Jacobs, 269 S.W.

-- Ft. Worth 1924, nowrit): Arkansas Game &Fish Comm'n v. Storthz, 29 S.W.2d 294 (Ark.193m. Thus if thewaters of the diswosal area were neither naviaable nor within the ambit of section 5.021 of theWater Code, the sale of the bed to the city carried with it the rights of fishery in thewaters over thebed.

We have been informed that the levee which separates the disposal area from Sabine Lakewas constructed in 1968 and 1969, subsequent to the issuance of thepatent upon such lands by the State. Thus at the time title to the bedwas transferred, thewaters over thebedwere subject to the ebb and flow of the tide andwere owned by the State. The question therefore becomes one of the effect of the subsequent separation of the waters from Sabine Lake.

It isgenerally held that the ownership of lands formerly submersed under naviqable waters and caused tobecome dry by artificial means remains in the State. Lorino v. Crawford Packing Co., 175 S.W.2d 410 (Tex.1943); Lakefront Trust, Inc. v. City of Port Arthur, 505 S.W.2d 606 (Tex.Civ.App. -- Beaumont 1974,writ ref'd n.r.e.). However, this rule of law is not directly applicable toyour question since the city holds title to the submerged lands tobegin with. We have discovered
no direct authority upon the question of the effect upon title to State waters of a severance thereof by artificial means.
Inour understanding the depth of thewater in the disposal area averages 2 to 2-l/2 feet. You state that the areawill "be filled with spoil to an elevation of 12 feet in about 50years." Thus we are dealing with abody ofwater which will have decreasing utility to thepublic as it is eventually converted to dry land. There isno question that the city will own the landwhen it isno longer submerged. The legislative actwhich authorized the sale specifically reserved only themineral rights to the land. Acts 1967, 60th Leg., ch. 206, § 2, at 452. The

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beds were conveyed for "commercial, recreational and industria development, and inorder toprovide a spoil area to the Corps of Engineers.

. . ." Acts 1967, 60th Leg., ch. 206, 5 1,at 452. Thus the Legislature expressly authorized the severance of a reasonable area from Sabine Lake for use as a spoil disposal site and thereby acknowledged that thewaters in such an area would eventually disappear. See Reed v. State, supra (holdinq that anonnavisable lake upon lands of the State which have been dedicated to aaricultural nurwoses was no longer apart of the public.domain). See S L enerally City of Newport Beach v. Faqer, 102 P.2d 438 (Cal.Ct.App. 1940). Accordingly, while thematter isnot free of doubt due to the lack of direct authority, inour opinion the City of Port Arthur, under these somewhat unique circumstances, probably obtained title to thewaters in the disposal area upon the severance thereof from thewaters of Sabine Lake.
The final issue iswhether and under what circumstances may the city lease thesewaters in light of their past use by the public for fishing. It is generally held that land dedicated topublic use as apark may not be leased in such a manner as to impair that use. Zachry v. City of SanAntonio, 305 S.W.2d 558 (Tex.1957); see City of Port Arthur v. Young, 37S.W.2d 385 (Tex.Civ.App. -- Beaumont 1931, writ ref'd). However, no person has avested property riqht'in fish owned bv the State: the oublic's riahts mav be restricted in the
(Tex.1948); see Stephenson v. Wood, 34S InHenrietta Country Club v. amunicipality had no duty toprovide interest of conservation. @c&en v.&DDepu&, 209 S.W.2d 588 .W.2d 246 (Tex.1931). Jacobs, supra, the court held that

public fishinq grounds and could therefore lease-a reservoir to aprivate club. The club was granted exclusive rights to the use of the reservoir in return for its obligation toprotect thepurity of thewater for use as themunicipal water supply. The court noted that the actions of the lessee had in fact resulted ina cleaner reservoir. In the absence of authority bearing upon these unique circumstances, we are unable topredict with certainty whether the courts would require apublic benefit as an incident toany lease of thewaters: however, it is likely that such abenefit would be a factor in the examination of the legality of a specific lease. See Reed v. State, supra; Henrietta Country Club v. Jacobs, supra. Considering the decreasing public utility of these waters, a court could well decide that the controlled production of aquatic lifewould be aproper use of thesewaters, especially if the public is benefited thereby. In this respect we note that ithas been suggested that a lessee could release a significant amount of fish life into thepublic waters.

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In light of the legislative authorization for commercial uses of the land transferred to PortArthur, inour opinion the city, for adequate consideration, may lease thewaters in the spoil disposal site to aprivate person for the controlled production of aquatic life.

Your office has also questioned the effect of the ingress and egress of'publicly owned marine life to the area. We are aware of no statute which claims fish inprivate waters tobe the property of the State regardless of their origin. See Parks &Wildlife Code S 1.011. The case law indicates that the title to fish and the right of fishery depends upon the character of thewaters rather than the origin of the fish. Diversion Lake Club v. Heath, supra; Taylor Fishing Club v. 133~~;t~i~;~a; Fin &Feather Club v. Thomas, supra. In Y g Club v. Hammett the court noted that "large quantities of fish habitually pass from the [public] river to the lake,,"88 S.W.Zd at 128,but held that the owner of the bed of the nonnavigable lake held the exclusive right of fishery. Thus the import of the ingress and'egress ofmarine life isdependent upon themanner thereof and thepossible effect upon the ownership of thewaters. An open connection between Sabine Lake and thewaters of the disposal area may subject suchwaters to the claim of the State under section 5.021 of theWater Code, for the disposal areamay thereby become subject to the ebb and flow of the tide. Such a result would be consistent with the authorities which hold that private ownership of land is lostwhen the landbecomes occupied by public waters. Lakefront Trust, Inc.v. City of PortArthur, supra, and authorities cited therein. Thus the opening of a connection between Sabine Lake and the disposal areamay void a lease due to the city's lossof title to thewaters. With this observation, inour opinion the ingress of public marine lifewould not in itself affect the legality of a lease of the disposal area.
SUMMARY

Under the circumstances discussed above, for adequate consideration the City of Port Arthur may lease a spoil disposal site forproduction ofmarine life.

ry trulyyours, 

# Q?y-tsY7&

ti0~W L. HILL Attorney General of Texas

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APPROVED:

---&L-y DAVID M. KENDALL, First Assigtant

c. ROBERT HEATH, Chairman Opinioa Committee jst

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