This is a good thread.

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No, it's not

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Deats - I may have missed it but can you please refer me to your source or link? TIA!!!

I am 1 of 5 owners of a 90 acre lake that the corp put a dam on back in the 50's. It has a navigable stream, but it is not public due to all the land under lake and stream being private. It is a water shed lake the NRCS maintains dam and has right to flood.

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No, it's not

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Deats - I may have missed it but can you please refer me to your source or link? TIA!!!

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http://www.americanwhitewater.org/content/Wiki/access:tx#fn__13

This article has cites and court cases.

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We own property on the Blanco river up stream from the city of Blanco. My grandfather built a damn across the river back in the 30's. We are constantly running people off of the river and about half the time they tell us that we do not have a right to tell them to leave. However this stretch of the river is not navigable by boat and we own the river bottom and both sides of it. The river is only a few inches deep in most places and there are a bunch of dinosaur tracks in it. So people are always wanting to come look at them. The liability of them getting hurt walking on the slick bottom is the main reason we ask them to leave. We are always nice when we approach but have had to call the sherif in numerous occasions. I was approached once by two very upset women while dove hunting about 50 yards from the river demanding that we stop immediately. To which my father informed them of the trespassing they were extremely rude so we ended up calling the sherif. The group was charged with trespassing.

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Elsbury or Morgan?

I read the link that was provided and didn't see anything that addressed the issue in question from a court ruling standpoint.

I contacted and received this response from a knowledgeable attorney on the subject:

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The Right of Portage has never been addressed in Texas to the best of my knowledge. The public has the right of ingress and egress on streams in Texas
that are Navigable in Law or Navigable in Fact. This right exists below the
Gradient Boundary Line and not on top of dams.

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If you look at the Google map, a portage is not required. The dam is partially submerged(confirmed by the OP) and part of the stream bed with water flowing over it consistently.

The original post...

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Buddy has a ranch in Segovia on the Johnson Fork. Neighbor has a dam right where my buddies property ends. If we portage kayaks over the dam, I assume we are fine. Is it tresspassing to stand on the dam and fish?

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Page 2 from the OP

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Deats-the middle 1/3 of the dam is under water a few inches, so its going over the dam.

And I agree that the new OB is much more similar to the GB, than it is to the old OB

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Just to throw a curveball in here that I don't think I've seen addressed.

What if the dam was built in a navigable stream before permitting was required and the state hasn't felt it worth their time to force its removal, is it still private property then?

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If you look at the Google map, a portage is not required. The dam is partially submerged(confirmed by the OP) and part of the stream bed with water flowing over it consistently.

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You are correct that the dam is partially submerged. However, the top of the dam is about 6' above the water level on the downstream side, so a portage would be necessary. How does this change anything, if in fact it does?

Is that 6" below the halfway point between the high and low water?

This thread has been interesting. I live right at 1.8 miles northeast of Roach Lake and have family ties to the particular land in question. Roach Lake is located on the 141 Ranch which was a part of the ranch my great great grandfather originally settled in Kimble County. All of the ranch was sold off in the early '40s and my great grandfather bought another ranch at the other end of the Old Segovia Road (CR 450) adjacent to the Segovia Truck Stop. The Johnson Fork runs through that property as well and I grew up on that ranch.

As evidenced by this thread, the law is not cut and dry, even if we find literature that makes it seem that way. The subject of the Johnson Fork being classified as navigable has been debated for pretty much my entire life; though I know of no litigation involving its definition. Here's what I do know. An extremely well respected surveyor who has held positions at the top of the General Land Office has continuously maintained that the Johnson Fork is not a navigable stream. Property owners own to the center line of the creek and, if the property is on both sides, own the entire riverbed. I have also had representatives of TCEQ at our ranch reiterate that the Johnson Fork is not a navigable stream in their view. Is that authoritative? As many nights drinking good bourbon with my lawyer friends would tell me, a lawyer can always find an angle to challenge those assertions and once it gets in a court room, your guess is as good as mine. On the surface, I can tell you that because of numerous statements by TCEQ to many land owners up and down the creek, and several different surveyors, most (all) of the land owners treat the Johnson Fork Creek as a non-navigable stream. Right or wrong, that is how it has been treated throughout history.

Raider--I'd be interested in knowing who your friend is as I know just about every land owner up and down the creek. The owners of the 141 Ranch are new owners and I don't know them as well, but I do know the ranch manager and he is a good person. I also know the land owners to the north of Roach Lake which makes me think I know the ranch owner that you are visiting. If I can do anything for you as far as putting you in contact with folks and helping to build camaraderie, I will do my best to do so.

As an FYI, the dam that you are referencing was once built out of cypress. It was built there by my great great grandfather and held up to all of the floods over the year. When the new owners purchased the place, they had the old cypress dam removed and replaced it with the limestone dam that exists today. I was sad to see the old cypress go. Based on your description of how you got to the dam, I'm going to guess that you are visiting the Comanche Point Ranch which is an absolutely beautiful place and one that I have a lot of history on as well.

The GE view is but a snapshot in time. No doubt, there are times when the flow is negligible. And but for the dam, there might be little to no water in the stream bed. This example is not a good one if consensus is being sought on the spirit/intent of The Law.

If one's intent is to challenge that spirit/intent, then it's likely textbook for that. I wonder....

And just like that, someone appears to shine a bright light on the subject! Thanks for sharing your insight, country!

Boerne--my insight usually leads to lawsuits but I offer it up nonetheless

I still want to get over to your neck of the woods and break some bread with you one of these days. You're one of my most respected posters on these boards!

Interesting as Texas courts have ruled repeatedly that a 30 foot bed is "navigable".

TPWD view

Question (likely a dumb one):

Assume that the stream is not considered navigable, and property owners own to the center line of the steam. If Property Owner A opts to build a dam across the stream, would it not be a case where he only owns half of said dam, and Property Owner B actually owns the half on his side of the center line of the stream?

Yes. And second guy probably could force removal on his side if he didn't agree.

Then in the case of the OP, so long as they stayed on their side of the creek, they would not be trespassing while fishing from the top of the dam (assuming that the creek is not legally defined as a navigable stream), correct?

There was a case in Kimble County in which an owner owned both sides of Cedar Creek which is closer to Junction and empties into the South Llano River. The owner built a dam on the property and then proceeded to sell small acreage homesites on both sides of the stream. TCEQ came in and said that if a dam is put in place in that scenario, ownership of the impounded water must be uniform on both sides of the stream bed. The owners had to buy back a small strip of land from the homesites on one side of the stream and include it with the larger property on the other side of the stream so that ownership remained in tact.

I'm not a lawyer, so I don't know what statues TCEQ was working under, but I can state that this scenario did play out the way I have described. That's not an exact match of your question, schmelba, but I think it points to the fact that a property owner on the other side of the river would not legally be able to impound the water via dam.

As I said, as clear cut as we all would like for surface water issues to be, the reality is that it just isn't. As stated in the link provided by Deats:

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The question of navigability of a stream is ultimately to be decided by the courts. See State v. Bradford, 121 Tex. 515, 50 S.W.2d 1065, 1070 (1932).

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No matter how each of us thinks a river/stream should be classified, absent some sort of authoritative definition on any particular watercourse by a governing body, going to court is the only way the issue is going to be settled.

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Is that 6" below the halfway point between the high and low water?

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I'm not sure I'm following you here Deats...

if its navigable, the "public" portion is anything below the halfway mark between the high water and low water lines. So, if the damn is below that point, it would be in the public portion.

country - you nailed it. I've only known them for a short while and I just recently met the owner, but they are a great family.

My friend has no interest in contesting the landowner and it's obviously not my place so that isn't the reason I started the thread. As someone who loves to fish and just recently purchased a kayak with the intent to do a lot more of it, up and down Central Texas rivers, I am just trying to learn where I can and can't be. This has been a great thread!

Would welcome the opportunity, country. I appreciate the compliment.
What do you know about Moody Lake, just upstream of Roach Lake. That dam there musta cost a fortune to construct!

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if its navigable, the "public" portion is anything below the halfway mark between the high water and low water lines. So, if the damn is below that point, it would be in the public portion.

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No, I don't believe it would be below that point. Dam is well above that I would think.

How is the public expected to know where either the high or low water mark are? And why wouldn't the "low water mark" be, by definition, at or very near the center of the channel?

Moody Lake is one heck of a lake and is owned by the descendants of the Moody's. The ranch has been in the same ownership since the 1800's when it was purchased from Captain Shriner who most know put together the YO Ranch that borders to the south. Much of the YO has been sold off in small acreage ranchetts, and the main portion of the ranch is up for sale right now at an astronomical price due to some family fighting.

Anyone that wants to get on the lake and fish can get a hold of the Rio Bonito http://www.riobonito.com/. They do hunting packages and fishing packages and it's really a neat place. When I was a kid we would go up to the lake and swim all the time. We'd just call to make sure they didn't have a group in at the time and the ranch manager was always accommodating. The dam in place on that lake was built in the early 1900s. About 10 years ago it began to have some pretty bad leaks in it and it was given an overhaul which brought the lake back to its normal levels. It is a huge dam.....one of the largest I've ever seen on a private ranch. The setting of both of these dams is top notch with limestone bluffs falling straight down into the water edges.

raider--I figured that'd be where you were coming in from. Charles has done business with us in the past and has been a gracious host to us on several occasions. I grew up working a lot on that ranch prior to Charles buying it and have been on just about every square inch of it. He's an extremely good person. Even with his UT diploma he opened his house to our local A&M Club hosting the original 12th Man Kickoff team several years ago. As Jackie Sherrill concluded his hooraw speech about owning the sips, I broke the news to him that he was standing on a t-sip's property. Pretty good joke on the old coach!

Here you go, Raider. I knew I had a picture somewhere. Roach Lake is in the left portion of the picture.

DP

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