Ownership of Beds of Navigable Streams
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The beds of navigable streams are generally owned by the state, in trust for the public. Most of the land alongside navigable streams is privately owned. The beds of non navigable streams are usually privately owned, and public use of the stream may be forbidden by the private landowner. However, the state owns the beds of perennial streams, regardless of navigability, where the original land grant was made under the civil law prior to December 14, 1837.
Under a 1929 law popularly known as the “Small Bill,” the state in some situations has relinquished to the adjoining landowner certain property rights in the bed of a navigable stream. However, the public may still use these navigable streams. The law’s major effect was to give some adjoining landowners the royalties from oil and gas under the stream bed. Significantly, the Small Bill declared that it did not impair the rights of the general public and the State in the waters of streams. Thus, along a navigable stream, even if the landowner’s deed includes the bed, and taxes are being paid on the bed, the public retains its right to use it as a navigable stream. The Small Bill also retained the state’s sand and gravel interests.
State Ownership in Trust for The Public
“[O]ur decisions are unanimous in the declaration that by the principles of
the civil and common law soil under navigable waters was treated as held by
the state or nation in trust for the whole people.”
State v. Bradford, 121 Tex. 515, 50 S.W.2d 1065, 1076 (1932)
“The waters of public navigable streams are held by the State in trust for
the public, primarily for navigation purposes.”
Carrithers v. Terramar Beach Com. Imp. Ass’n, 645 S.W.2d 772, 774 (Tex. 1983)
“[T]itle to [a navigable stream’s] waters is in the state in trust for
the public. ... The waters are in trust for the public: First, for navigation
purposes, which concerns all the public and is ordinarily regarded as a superior
right ... .”
Motl v. Boyd, 116 Tex. 82, 286 S.W. 458, 468 (1926)
State Ownership of Perennial Streams Under the Civil Law
Manry v. Robison, 122 Tex. 213, 231; 56 S.W.2d 438, 446 (1932) states:
The status of the law in Texas when we adopted the common law as the rule of decision in 1840 was as follows: Texas owned the beds of all perennial streams, regardless of navigability, whether grants of land adjacent were made by Spain and Mexico prior to March 2, 1836, or by the Republic of Texas prior to the Act of [December 14,] 1837, by virtue of the civil law of Mexico. ... The Republic also owned the beds of all streams touching grants made subsequent to that date and prior to the Act of 1840, whether perennial or not, where the beds were as wide as 30 feet, under the Mexican civil law as modified by the Act of 1837.
For an example of a stream found to be perennial, see Heard v. Town of Refugio, 103 S.W.2d 728, 729-30 (Tex. 1937).
The Small Bill
The Small Bill is codified as Article 5414a of the Revised Civil Statutes of Texas. It allows, under certain circumstances, a landowner with insufficient upland acreage in a land grant to make up the difference by claiming acreage from the stream bed. One provision of the Small Bill states:
“[N]othing in this Act contained shall impair the rights of the general public and the State in the waters of streams ... .”
In a 1932 case which addressed the nature of the private ownership granted by the Small Bill, the Texas Supreme Court noted:
“The reservation to the state and the public of the waters of streams would,
under well established rules of construction, carry with the reservation all
things necessary to the practicable and substantial use of and enjoyment of
the things reserved. ”
State v. Bradford, 121 Tex. 515, 50 S.W.2d 1065, 1077 (1932).
Texas Attorney General’s Opinion S-208 (1956) concluded that the general public is authorized to walk down the dry or submerged bed of a navigable stream—even if its bed is privately owned by virtue of the Small Bill (Article 5414a, R.C.S.)—for the purpose of seining and fishing in water holes in the bed of the river. Such conduct was not a criminal trespass under the definition of the crime then in effect.
Dams and the Small Bill
See Garrison v. Bexar Medina Atascosa Counties W. I. D., 404 S.W.2d 376 (Tex.Civ. App. Austin 1966), holding approved and writ ref’d, n.r.e., 407 S.W.2d 771 (Tex. 1966). The headnotes to the opinions summarize the case as follows:
The Small Bill which confirmed patents and awards to beds of water courses and navigable streams did not vest patentees and their assignees with such title as would constitute beds of navigable streams their “own property” within meaning of statute permitting construction of dam or reservoir on their own property without a permit.
Statute permitting landowners to construct dam on their own property without permit has no application to a stream which is navigable as defined by statute relating to navigable streams which shall not be crossed by the lines on a survey.
See Water Code § 11.142 (formerly in Art. 7500a) and Natural Resources Code § 21.001 (formerly in Art. 5302).
Navigation Rights Irrespective of Ownership
A lawsuit was brought by some landowners who claimed ownership of the bed of the Upper Guadalupe. They contended that their titles were impaired when the Texas Water Rights Commission found (and the trial court affirmed) that the stream is navigable by statute. The appeals court rejected the landowners’ contention, stating:
The title of owners of beds of streams by the State or landowners does not determine property rights in the water. Assuming that the property owners here involved owned the stream beds, this does not deprive the State from reasonable regulations and control of navigable streams. A property owner, including holders of riparian rights, cannot unreasonably impair the public’s rights of navigation and access to and enjoyment of a navigable water course.
Adjudication of Upper Guadalupe Segment of Guadalupe River Basin, 625 S.W.2d 353, 362 (Tex.Civ.App. San Antonio 1981), aff’d, 642 S.W.2d 438 (1982).