JOHN L. HILL 

Attorney General 

The Attorney General of Texas 

November 14, 1977 

Honorable Henry Burkett 

Executive Director 

Texas Parks and Wildlife 

Department 

Austin, Texas 70744 

Opinion No. H-1090 

Re: Lease of waters by 

city to private individuals for shrimp mariculture purposes. 

Dear Mr. Burkett: 

Your office has requested our opinion concerning 

several general questions involving the jurisdiction of 

the Parks and Wildlife Department regarding fish in waters 

over privately owned beds and the legality of a grant of 

exclusive rights of fishery. Additionally, you asked 

specifically whether the City of Port Arthur may lease a 

spoil disposal site to a private 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 in question was sold to the city pursuant to Acts 1967, 60th Leg., ch. 206, at 452, which 

provides in part: 

Section 1. The City of Port Arthur, 

being in dire need of an area for commercial, recreational and industrial 

development, and in order to provide 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 to purchase the 

following described lands . . . . 

Section 2. . . . the Commissioner of 

the General Land Office is hereby authorized to convey to the City of Port Arthur 

the following described lands with all oil, 

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Honorable Henry Burkett - Page 2 (H-1090) 

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 Port Arthur 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 levee which separates the area from the waters 

of Sabine Lake. We have been informed that the only connection with the lake waters is a drain pipe which is usually 

clogged and is opened only when the Corps is dumping spoil 

into the area, approximately once every three years. Thus it 

appears that the waters in the spoil disposal area, while 

formerly constituting a portion of Sabine Lake, are at present 

generally not subject to the ebb and flow of the tide. 

It is generally 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 the waters or exclusive riahts of fisherv: rather, the arantee takes the bed 

subject-to the piscatory rights of the public. 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, 

no writ). See Carter v. Hawaii, 200 U.S. 255 (1906); Diversion 

Lake Club v. Heath, 86 S.W.2d 441 (Tex. 1935); H. Farnham, The 

Law of Waters and Water Riqhts 9 401 (1904). Furthermore, section 5.021(a) of the Water-Code provides in part: 

The water of the ordinary flow, underflow, 

and the tides of every . . . lake, and of 

every bay or arm of the Gulf of Mexico . . . 

is the property of the state. 

See also City of Galveston v. Mann, 143 S.W.2d 1028 (Tex. 1940). 

Consequently, if the water 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, 34 S.W.2d 246 (Tex. 1931); Parks and Wildlife Code § 1.011(c). 

However, in Diversion Lake Club v. Heath, supra, the court 

noted that: 

The general rule is well 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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Honorable Henry Burkett - Page 3 (H-1090) 

the stream, is determined by the ownership 

of the bed. 

86 S.W.2d at 443. In that case the court apparently refused to 

follow this rule with regard to navigable or public waters, 

but see Fisher v. Barber, 21 S.W.2d 569 (Tex. Civ. App. -- 

Beaumont 1929, no writ), but it appears 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, no writ): Arkansas Game 

& Fish Comm'n v. Storthz, 29 S.W.2d 294 (Ark. 193m. Thus if 

the waters of the diswosal area were neither naviaable nor 

within the ambit of section 5.021 of the Water Code, the sale 

of the bed to the city carried with it the rights of fishery 

in the waters over the bed. 

We have been informed that the levee which separates the 

disposal area from Sabine Lake was constructed in 1968 and 1969, 

subsequent to the issuance of the patent upon such lands by 

the State. Thus at the time title to the bed was transferred, 

the waters over the bed were subject to the ebb and flow of 

the tide and were owned by the State. The question therefore 

becomes one of the effect of the subsequent separation of the 

waters from Sabine Lake. 

It is generally held that the ownership of lands formerly 

submersed under naviqable waters and caused to become 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 to your question since the city holds 

title to the submerged lands to begin 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. 

In our understanding the depth of the water in the disposal 

area averages 2 to 2-l/2 feet. You state that the area will "be 

filled with spoil to an elevation of 12 feet in about 50 years." 

Thus we are dealing with a body of water which will have decreasing utility to the public as it is eventually converted 

to dry land. There is no question that the city will own the 

land when it is no longer submerged. The legislative act which 

authorized the sale specifically reserved only the mineral rights 

to the land. Acts 1967, 60th Leg., ch. 206, § 2, at 452. The 

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Honorable Henry Burkett - Page 4 (H-1090) 

beds were conveyed for "commercial, recreational and industria 

development, and in order to provide 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 the waters in such an 

area would eventually disappear. See Reed v. State, supra 

(holdinq that a nonnavisable lake upon lands of the State 

which have been dedicated to aaricultural nurwoses was no 

longer a part of the public. domain). See S enerally L City of 

Newport Beach v. Faqer, 102 P.2d 438 (Cal. Ct. App. 1940). 

Accordingly, while the matter is not free of doubt due to the 

lack of direct authority, in our opinion the City of Port 

Arthur, under these somewhat unique circumstances, probably 

obtained title to the waters in the disposal area upon the 

severance thereof from the waters of Sabine Lake. 

The final issue is whether and under what circumstances 

may the city lease these waters in light of their past use by 

the public for fishing. It is generally held that land dedicated to public use as a park may not be leased in such a 

manner as to impair that use. Zachry v. City of San Antonio, 

305 S.W.2d 558 (Tex. 1957); see City of Port Arthur v. Young, 

37 S.W.2d 385 (Tex. Civ. App. -- Beaumont 1931, writ ref'd). 

However, no person has a vested property riqht'in fish owned 

bv the State: the oublic's riahts mav be restricted in the 

(Tex. 1948); see Stephenson v. Wood, 34 S 

In Henrietta Country Club v. 

a municipality had no duty to provide 

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 a private club. The 

club was granted exclusive rights to the use of the reservoir 

in return for its obligation to protect the purity of the water 

for use as the municipal water supply. The court noted that 

the actions of the lessee had in fact resulted in a cleaner 

reservoir. In the absence of authority bearing upon these 

unique circumstances, we are unable to predict with certainty 

whether the courts would require a public benefit as an 

incident to any lease of the waters: however, it is likely 

that such a benefit 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 life would be 

a proper use of these waters, especially if the public is 

benefited thereby. In this respect we note that it has been 

suggested that a lessee could release a significant amount of 

fish life into the public waters. 

p. 4479 
Honorable Henry Burkett - Page 5 (H-1090) 

In light of the legislative authorization for commercial 

uses of the land transferred to Port Arthur, in our opinion 

the city, for adequate consideration, may lease the waters 

in the spoil disposal site to a private 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 in private waters to be 

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 the waters 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 of marine 

life is dependent upon the manner thereof and the possible 

effect upon the ownership of the waters. An open connection 

between Sabine Lake and the waters of the disposal area may 

subject such waters to the claim of the State under section 

5.021 of the Water Code, for the disposal area may 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 lost when the land becomes occupied 

by public waters. Lakefront Trust, Inc. v. City of Port Arthur, 

supra, and authorities cited therein. Thus the opening of a 

connection between Sabine Lake and the disposal area may void 

a lease due to the city's loss of title to the waters. With 

this observation, in our opinion the ingress of public marine 

life would 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 for production of marine life. 

ry truly yours, 

Q?y-tsY7& 

ti0~W L. HILL 

Attorney General of Texas 

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Honorable Henry Burkett - Page 6 (H-1090) 

APPROVED: 

---&L-y 

DAVID M. KENDALL, First Assigtant 

c. ROBERT HEATH, Chairman 

Opinioa Committee 

jst 

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