The Navigation Right
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The navigation right encompasses a right of free passage along a river or stream. Long ago the Texas Supreme Court stated:
[It has been] the settled policy and cherished object of the state to guard its navigable streams from obstruction and to secure and improve them as common highways of trade and travel for such of its citizens as might wish to use them for this purpose.
Selman v. Wolfe, 27 Tex. 68, 71 (1863).
The navigation of Texas’s inland and coastal waters is one of several “public rights and duties” specifically recognized by the Texas Constitution. A form of the right to travel, the navigation right is part of the liberty and the freedom of movement enjoyed by our society. Texas’s laws on navigation have evolved under different governments during Texas’s history. The laws are a blend of the civil law (the law of Spain and Mexico and the early Republic of Texas, which still applies to old land grants), the common law (court rulings), and statutes (acts of the Texas Legislature or the Congress of the Republic of Texas).
Civil Law from the Partidas
Title 28 of third Partida, as translated in Hall, The Laws of Mexico (1885) pp. 447-449:
Law 3. What are the Things Which Belong in Common to All Creatures Living. The things which belong in common to all the living creatures of the world are the air, rain, water, the sea, and its shores; for every living creature may use them, according to his wants. ...
Law 6. That Every One may Make Use of Ports, Rivers, and Public Roads. Rivers, ports, and public roads belong to all men in common; so that strangers coming from foreign countries may make use of them, in the same manner as the inhabitants of the place where they are. And though the dominion or property (senorio) of the banks of rivers belongs to the owner of the adjoining estate, nevertheless, every man may make use of them to fasten his vessel to the trees that grow there, or to refit his vessel, or to put his sails or merchandise there. So fishermen may put and expose their fish for sale there, and dry their nets, or make use of the banks for all like purposes, which appertain to the art or trade by which they live.
Law 8. That No One has a Right to Build a Mill or Other Edifice on a River, by Which the Navigation of Vessels may be Obstructed. No man has a right to dig a new canal, construct a new mill, house, tower, cabin, or any other building whatever, in rivers which are navigated by vessels, nor upon their banks, by which the common use of them may be obstructed. And if he does, whether the canal or edifice be newly or anciently made, if it interfere with such common use, it ought to be destroyed. For it is not just that the common good of all men generally should be sacrificed to the interest of some persons only.
Concerning the civil law, Joaquin Escriche, Diccionario Razonado de Legislacion y Jurisprudencia (1831), as translated in Hall, The Laws of Mexico (1885) pp. 411, 416-417, states:
Public Waters. Waters which are not nor can not be private property belong to the public. Such are the waters of the rivers which by themselves or by accession with others follow their course to the sea. These may be navigable or not navigable. If they are navigable, nobody can avail himself of them so as to hinder or embarrass navigation ... .
River, What is Uses thereof Their banks. A river is a mass of water united between two banks, which run perpetually from time immemorial. It differs from a torrent in that this is the effect of the abundant rains or extraordinary meltings of snow, so that it runs only a certain time and leaves its bed dry the greater part of the year. Rivers, as law 6, title 28, partidas 3, says, belong to all men generally so that even those who are of other foreign lands may use them as the natives and residents of the territory which they bathe. ... [A]nd when a river which is not navigable becomes so after uniting with another, use of its waters must be made so that then there shall be no lack thereof for navigation.
Texas Constitution, Art. XVI, § 59 (“The Conservation Amendment”)
(a) The conservation and development of all of the natural resources of this State ... , the conservation and development of its forests, water and hydro electric power, the navigation of its inland and coastal waters, and the preservation and conservation of all such natural resources of the State are each and all hereby declared public rights and duties; and the Legislature shall pass all such laws as may be appropriate thereto.
General discussions, with citations to many cases about navigable streams, are found in the following legal treatises:
- Texas Jurisprudence, Third Edition, Volume 73, Water (2003), esp. §§ 204-245.
- Hutchins, The Texas Law of Water Rights (1961).
Regarding the civil law, see also Dobkins, The Spanish Element in Texas Water Law (1959).
Regarding freedom of movement, see Chafee, Three Human Rights in the Constitution of 1787 (1956).