Navigability of Lakes
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There are very few natural lakes in Texas. Some of the small natural ones have been held to be non navigable and therefore subject to private ownership and control. The typical Texas lake, on the other hand, has been created by building a dam on a navigable stream and then impounding water behind the dam. Damming a navigable stream does not destroy the public’s navigation right along it. The Texas Supreme Court has held that persons may boat and fish on all the lake’s waters, not just on the portion directly above the navigable stream. Therefore, a property owner may not fence off any portion of such a lake. The court also held that the public does not have a right to fish from the privately-owned shores of an impoundment on a navigable stream. When a lake has been created by damming a non navigable stream, the private landowner may (unless he holds under a civil law grant adjoining a perennial stream) prohibit public use of the lake—including boating and fishing.
The effects upon public rights of damming a navigable stream were considered in a case involving the Medina River. In discussing the dam owner’s permit, the Supreme Court stated: “It gave no title to the water, but only the right to divert and use so much of the water appropriated as might be necessarily required when beneficially used for the purpose for which it was appropriated. ... It gave no title to the fish in the water of the lake, no exclusive right to take the fish from the lake, and no right to interfere with the public in their use of the river and its water for navigation, fishing, and other lawful purposes further than interference necessarily result[ing] from the construction and maintenance of the dams and lakes in such manner as reasonably to accomplish the purpose of the appropriation.”
Diversion Lake Club v. Heath, 126 Tex. 129, 86 S.W.2d 441, 446 (1935). The court held that persons may boat and fish on all the lake’s waters, not just on the portion directly above the navigable stream. As to fishing from the lake’s shores, the court stated: “We find no authority for holding that the public have as an incident to the right to fish in Diversion Lake a right to use the banks of the lake, and it is our opinion that they have no such right.”
Diversion Lake Club v. Heath, 126 Tex. 129, 86 S.W.2d 441, 447 (1935). For a discussion of the private property rights associated with a non navigable lake, see Taylor Fishing Club v. Hammett, 88 S.W.2d 127 (Tex.Civ.App. Waco 1935, writ dism’d).