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Again, I believe everyone is referring to navigable waterways, which are open to the public. Nobody is saying you should be able to wade up a stream on private property just because you feel like it.

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Apparently the only requirement for being navigable is a bed averaging 30 feet in width, I've seen streams that meet that requirement without having water deep enough to float a canoe, the only way for the public to access them would be to wade.

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Agree. If a stream is deemed a navigable waterway by the state then it is legal for the public to access, regardless of depth, hence the confusion. If we had a bad drought and say the Colorado ran almost dry then it wouldn't all of a sudden fail to be a navigable waterway. Likewise, a tiny stream during a historic flood is not all of a sudden a navigable waterway.

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So you are, in fact, saying that anyone should be able to wade up a stream on private property if they feel like it, as long as its accessed legally, which I grant is the law.

I think the reason this seems so debatable is because of how ridiculous it is to declare any waterway that does not consistently maintain a volume of water sufficient to float any vessel navigable, but such is the law...

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I am saying that if Texas law says it is legal then it should be open to the public regardless of if it can float a vessel. If the 30ft rule defines what is navigable, then that is the standard that must be applied evenly. You can't use the ability to float a boat as a standard or what is public would literally ebb and flow with the water.

I do think it would be prudent to clarify the law and with todays technology to even provide a map/wesbiste to identify clearly every foot of "navigable" public water in the state, but clearly neither the state or landowners want to do that, so we are stuck with the debate in this thread.

http://tpwd.texas.gov/publications/nonpwdpubs/water_issues/rivers/navigation/kennedy/

some helpful info here

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Again, I believe everyone is referring to navigable waterways, which are open to the public. Nobody is saying you should be able to wade up a stream on private property just because you feel like it.

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Apparently the only requirement for being navigable is a bed averaging 30 feet in width, I've seen streams that meet that requirement without having water deep enough to float a canoe, the only way for the public to access them would be to wade.

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Agree. If a stream is deemed a navigable waterway by the state then it is legal for the public to access, regardless of depth, hence the confusion. If we had a bad drought and say the Colorado ran almost dry then it wouldn't all of a sudden fail to be a navigable waterway. Likewise, a tiny stream during a historic flood is not all of a sudden a navigable waterway.

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So you are, in fact, saying that anyone should be able to wade up a stream on private property if they feel like it, as long as its accessed legally, which I grant is the law.

I think the reason this seems so debatable is because of how ridiculous it is to declare any waterway that does not consistently maintain a volume of water sufficient to float any vessel navigable, but such is the law...

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I am saying that if Texas law says it is legal then it should be open to the public regardless of if it can float a vessel. If the 30ft rule defines what is navigable, then that is the standard that must be applied evenly. You can't use the ability to float a boat as a standard or what is public would literally ebb and flow with the water.

I do think it would be prudent to clarify the law and with todays technology to even provide a map/wesbiste to identify clearly every foot of "navigable" public water in the state, but clearly neither the state or landowners want to do that, so we are stuck with the debate in this thread.

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I can agree with this in totality, Gator. If the law says so, then it must be so as we are a country of law and not of man. The convoluted nature of the law is the heart of the issue, and as you state, is what keeps this debate alive and flowing. I think if approached correctly, landowners would be open to the process of more clearly defining what is and what isn't navigable. Land owners want just as much legal authority and understanding of how to handle passers by as those who seek outdoor recreation want access to areas within private boundaries. I would go so far as to say the landowners on the Johnson Fork would be open to classifying the creek as public, so long as the boundary is clearly defined, rules are clearly in place as to when people may stray from the actual water itself, etc. The problem now is people read one court ruling and say "well I have the right to......". It is much more complex than that......for both sides of the argument.

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Survey lines crossed those waterways granting ownership to the land owner which mean the river bed belonged to them, not the sovereign and not reserved for public consumption. We would have to do much more research into how surface water law originated, but nonetheless people granted deeds in which the survey line crossed the river were granted the right of private ownership to the river bed

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From the link above

by: Boyd Kennedy; Staff Attorney, Texas Parks and Wildlife Department*

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Within these grants [Spanish and Mexico land grants], remember that all perennial streams are public, regardless of navigability. Also, if a survey stops at a stream's bank and does not cross it, this means the original surveyor believed that the stream was to remain public, as a navigable or perennial stream. The reverse is not true, however, since as mentioned above in many cases the surveyor failed to stop at the bank of a navigable stream even though the law directed him to do so. In regards to statutory navigability, for some streams it may be fairly straightforward to look in the vicinity of several stream crossings and estimate whether the streambed averages 30 feet or more in width. The sheriff, landowners, one of your predecessors, or a local game warden may know whether the body of water has historically been treated as public or private. You could also check with prosecutors upstream and downstream. Sometimes a state agency (like TCEQ, the General Land Office, or Parks and Wildlife) will have made some kind of determination of navigability as part of its responsibility to administer some law or program

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http://tpwd.texas.gov/publications/nonpwdpubs/water_issues/rivers/navigation/kennedy/

some helpful info here

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Most helpful comment I have seen in this thread

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Finn......Let's agree that the Johnson Fork is navigable and it has a Gradient Boundary line.....

Let's assume that the damn was built on the land owners property.

I quoted three sentences earlier. I really didn't understand the third one. Maybe I still don't but I've done a little digging.

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quote: This right exists below the Gradient Boundary Line and not on top of dams.

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In a SCOT ruling in 1999 a set of landowners prevailed over the State of Texas...in avoiding land loss...after the court stated that the
Gradient Boundry line could not change due to an increased water level
as a result of a dam.


So "if" the water is above the Gradient Boundry line on the side in question....how to you avoid trespass?

A Q&A answer from the TPWD website...
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If the water is at or above the gradient boundary, there may be no way to get in or out of the river without landowner permission

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The civil law (the law of Spain and Mexico, and the early days of the Republic of Texas) recognized the right of a navigator to use the banks, even though privately owned, for various purposes associated with navigation. The civil law still applies to particular land grants. The permitted activities set out
in law 6 of title 28 of the third Partida (quoted below) amount to what might be considered today as fairly substantial uses. It is difficult to imagine that a generally less intrusive use involved in a portage would be forbidden.

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Parks & Wildlife Code 90.007. Landowner Rights.

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(a) A prescriptive easement over private property cannot be created by recreational use of a protected freshwater area, including by portage over or around barriers,
scouting of obstructions, or crossing of private property to or from a protected
freshwater area.
(b) Nothing in this section shall limit the right of a person to navigate in,
on, or around a protected freshwater area.

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Good link, raider. The article does a good job of possibly dispelling some of the angles debated in this thread. Call me senile, but I would point out 2 things: First, the article is written by an attorney employed by Texas Parks and Wildlife. He makes no references to court cases in which stream beds were found to be private; only those in which they were determined public. Second, he clearly states multiple times the same thing we have been stating throughout this thread......despite the law seeming clear cut, and despite many court cases supporting the letter of the law, definition of navigable waters is a complicated and difficult issue with no clear resolution without the court's involvement.

Country,
It also seems most people on here agree to the same things but the haze around navigable vs. non- navigable has created two dictinct camps, both with real and exaggerated issues.

I assume at some point the state will have have to formally address all waterways or folks will try to take advatage of the law for the own good.

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Country,
It also seems most people on here agree to the same things but the haze around navigable vs. non- navigable has created two dictinct camps, both with real and exaggerated issues.

I assume at some point the state will have have to formally address all waterways or folks will try to take advatage of the law for the own good.

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Again, I 100% can agree with every word of this. I guess if we debate something long enough, we might just be able to find some common ground in which we all agree

It's been fun fellas. I truly do enjoy the debate and I truly do respect the opinions presented throughout and recognize the weaknesses/holes present on both side of the issue.

With our new Land Commissioner, let's just blame all these problems on George Bush and call it a day.

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I assume at some point the state will have have to formally address all waterways or folks will try to take advatage of the law for the own good.

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Now this I disagree with. There is little to no reason for the State to change the status quo. The State already has the ability to declare any stream it wants navigable through the tceq and if a landowner contests that designation in court the landowner likely will lose.

The only party likely to benefit from clearer or more definitive legislation is the public recreation folks but they are a marginal political groups. Most landowners would oppose any legislation because they know they have more to lose than to gain. And the state doesn't want to get in a long drawn out "takings" constitutional battle over land the state already owns (in their opinion) and can regulate on a one off basis when necessary.

So absent some sort of major push or controversy that brings this issue to the front of public interest, I doubt we see any significant legislative change.

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Nailed it. That's exactly how I see the issue. This has been around since Spain owned Texas, the state of Texas has no incentive to change until the issue is pressed or they would have already done so.

I think it would take something extreme such as a landowner or two shooting a fishermen that was legally using what he thought was a private waterway or something similar and for the story to take off nationally for any type of broad resolution.

I think if members of websites such as Texas Kayak Fishermen banded with fly fishing folks in Texas and organized and started lobbying for changes they could gain traction as well, but it would be an uphill battle and I doubt the numbers are there to make a widespread change. They could likely get clarification on popular streams though.

Here's an interesting thought I'm having while looking through some old family pictures. The gradient line of a stream can change/expand/contract daily as water flows through its channel. The gradient line can also be permanently altered as a result of major floods. Is it possible that a waterway could have originally been narrower than 30 feet from origin to mouth; thus not considered navigable and over time had its gradient boundary expand beyond 30 feet from origin to mouth and be reclassified? In such cases would the opposite be true; i.e. gradient boundary cut in such a way as to reduce average width over time?

I keep coming back to the Johnson Fork because of my familiarity with it. Based on my knowledge of where the stream flowed historically, and where it has scattered through flooding, I think there is a very strong possibility that the creek was once a narrow gradient boundary that contained a good deal of depth. Over time (particularly after the construction of I-10) major flooding has washed sand and gravel into the original bed which has lowered the depth and expanded the width changing the gradient boundary in such a way that it very well may average more than 30 feet from mouth to origin. Just more questions as I continue to ponder that which I know and that which I don't know.

Country - I agree with you and have read (could've been here) that the gradient boundary is only relevant for the day that it is surveyed. It's constantly changing. Have you seen this?

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In Motl v. Boyd, 116 Tex. 82, 286 S.W. 458, 467 (1926), the Texas Supreme Court used language much like that used by the U.S. Supreme Court to describe the bed and the bank of a stream:

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A water course, river, or stream consists of a bed, banks, and a stream of water. ... The bed of a stream is that portion of its soil which is alternatively covered and left bare as there may be an increase or diminution in the supply of water, and which is adequate to contain it at its average and mean stage during an entire year, without reference to the extra freshets of the winter or spring or the extreme drouths of the summer or autumn. ... The banks of a stream or river are the water washed and relatively permanent elevations or acclivities at the outer lines of the river bed which separate the bed from the adjacent upland, whether valley or hill, and served to confine the waters
within the bed and preserve the course of the river when they rise to the highest point at which they are still confined to a definite channel.

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Of course this only takes us back to the 30' width requirement...

That is correct on the gradient boundary only relevant for the day it was surveyed (in my Holiday Inn voice)

I have read that case and many more that reflect similiar language. What is confusing to me is trying to apply that description to a waterway similar to the Johnson Fork. As an example, the South Llano River, in my opinion, is easy to identify the river bed. There is elevation slowly lowering into the river valley, there is grass cover, there is a straight drop off in terrain entering the water, and then there is a huge channel containing flowing water. It matches with what this court case implies, i.e. the normal channel required to confine the water during normal flow.

The Johnson Fork on the other hand has the slow terrain drop off, then 100-200 feet in many cases of gravel bar in which flooding has washed away the original river bank, then a channel in which water is flowing. The other side of the creek may very well be identical. In other words, the South Llano has a river (water) stretching from bank to bank and obviously has a bed beneath the water. Case closed. The Johnson Fork has banks, crapload of dry land/gravel bar in which water never goes over except during time of flood, stream in which a bed is beneath.

To me this is where defining a stream gets challenging. I believe it is established that the construction of a dam or other impoundment does not change the gradient boundary of the bed. If that is accurate, and if the gravel bars do not count as the bed, then I think I could prove that the Johnson Fork does not average 30 feet in width even during its current state. I could certainly prove that it did not average 30 feet in the 1940-1950 era with aerial photos.

Again, I think you have a contradiction in the law which clouds the issue. In that one court case, it states "A water course, river, or stream consists of a bed, banks, and a stream of water." Yet we have court cases ruling that some streams are considered navigable even if there is no water. It also goes on to say "The bed of a stream.........and which is adequate to contain it at its average and mean stage during an entire year...." Again, which is it? Does the bed start at the banks, or does the bed start at the secondary bank in which water flows?

That has been my point all along in this entire discussion. We want these answers to be cut and dry, yet even with established court rulings, we are left with no concrete answers.

And again, raider......my discussing the Johnson Fork is not a slight to your original post as I believe we have left that discussion in the rear view mirror. I simply continue discussing the Johnson Fork as it makes a good subject for the discussions we are having.

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Now this I disagree with. There is little to no reason for the State to change the status quo. The State already has the ability to declare any stream it wants navigable through the tceq and if a landowner contests that designation in court the landowner likely will lose

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On the other the landowner might not really care if it's designated navigable. Both sides might support an old gradient boundry survey. Couple that with the current day water level above the gradient and you don't have legal ingress from the dam or banks. That might be the win he was looking for.

In Brainard vs The State of Texas the SCOT ruled that the construction of a dam can't change the gradient boundry line.

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Couple that with the current day water level above the gradient and you don't have legal ingress from the dam or banks.

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And then there's this...

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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).

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Sunchaser - TCEQ granting them the right to dam the waterway does not give them permission to preclude navigation.

And even more recently and more clearly worded

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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).

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One thing I did find interesting was the local ordinances that could be applied to further restrict use.

For example, you can fish and float on navigable streams, but hunting is largely restricted either by city ordinance or due to the law that was enacted that the shot can't cross private property, precluding duck hunting by the public on many public rivers/lakes and streams surrounded by private land. You have things like hp restrictions on public waters, no wake zones, heck the city of New Braufels enacted laws to limit cans in the river for a short while.

It seems that the landowners could possibly enact policy to restrict usage and in some ways limit the state rulings if they were devoted enough to see it through politically.

raider....You are missing the point. In any situation you must ingress and egress the navigable stream by legal means. Think about the sides of the stream/lake above the dam. If the water is above the gradient boundry you step out of the water onto private property. That's what TPWD is talking about in their Q&A.

There may not be a problem legally getting on the stream above the dam but if we get back to your OP....that was a long time ago... I believe there might be.

I don't think I am. It appears to read that once you have accessed the navigable river by legal means, it doesn't matter if you are traveling upstream or downstream.

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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

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the navigator has a limited privilege to go onto adjoining private land to scout and if necessary make a safe, reasonable portage. The intrusion on private land should be minimized.

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I don't think I am.

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I think you are.....You are talking about what your rights are once in the navigable stream. No one has disagreed with that in nine pages. TPWD will tell you trespass is not a legal means to get in the navigable stream.

If the water on the dam side spreads past the gradient boundry you must trespass to get into the stream and exercise your rights.

On the down stream side is a different matter because you entered into the gradient boundary without trespass.....but that doesn't get you where you want to go.

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You are talking about what your rights are once in the navigable stream

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Exactly! And unless I am misunderstanding you, you are stating that the act of portaging over said dam is trespass which appears to be highly unlikely based on the cases and statements quoted above. If not, I don't know what point you are trying to make.

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Your last question would be the correct assumption.

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Why? Who made the determination which streams were navigable and which ones were not? Serious question.

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I have a serious question for you, sir. Do you believe a so-called "stream" needs to have water in it sufficient to float a boat, or raft of some sort, in order for it to be deemed navigable?

In much of Texas, creeks are but drainages that only contain water throughout its course for brief periods after a measurable rain, with pools lingering for longer periods of time. Rivers, on the other hand almost always contain water, even flowing, from bank to bank and end to end. Do you agree with that generalization?

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No, I don't believe that is the only way to deem a waterway navigable. Do you?

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I asked you (paraphrased) if it was necessary for a drainage to actually have water in it to be navigable, and your response was a qualified no, but please explain your use of the phrase I bolded. And just how many ways are there?

You've got #2 but you need the other two.

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#1The Right of Portage has never been addressed in Texas to the best of my knowledge.

#2 The public has the right of ingress and egress on streams in Texas that are Navigable in Law or Navigable in Fact.

#3 This right exists below the Gradient Boundary Line and not on top of dams.

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Why are you only are referring to your friends statement and totally neglecting what TPWD has said regarding portaging? Has anyone ever been prosecuted for trespass while portaging? I believe the answer is no.

Then what are you worried about?

Set up camp on the dam or the owners yard, set up some awnings, break out the bbq pit, dig a latrine and if you are arrested tell the judge the TPWD gave you approval to trespass.

Be prepared to answer a few questions.

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If a stream is capable of carrying logs to the mill part of the year but not the rest of the year should we tell the logger up stream he cannot use the stream to transport his logs because it is unnavigable?

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If you ever used that line (logic) on a jury, I hope you got the appropriate smirks and chuckles it deserves.

I actually do not disrespect the intent of the Law; only the interpretation by some. As country has eloquently stated more than once, including in response to your queries as to why surveyors routinely extended surveys across so-called navigable stream beds, it was likely clear to them these were not navigable. It was not even a question in their mind. I'm not sure you even know what these drainages/stream beds look like in their upper reaches. They are decidedly not what the statute was designed to "protect" for the people of Texas. I will never be convinced otherwise.

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As country has eloquently stated more than once, including in response to your queries as to why surveyors routinely extended surveys across so-called navigable stream beds, it was likely clear to them these were not navigable. It was not even a question in their mind. I'm not sure you even know what these drainages/stream beds look like in their upper reaches. They are decidedly not what the statute was designed to "protect" for the people of Texas. I will never be convinced otherwise.

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And yet the founders of the Republic and State gave us a definition of Navigable. How or why the law cannot convince you of the intent of the State is beyond me, but if you want to be convinced the law means something other than words used in the law more power to you. I am only arguing that streams that meet the definition of Navigable are by law navigable. So be clear that I am not arguing some drainage ditch or runoff is navigable. A water way either meets the definition (either by fact or law), or it doesn't. That is my only point and argument.

It is also great that surveyors, past and present, have an opinion on if a stream is navigable or not. However, their opinion is strictly that, their opinion. It is not binding or authoritative in any way. The law dictates if a stream is navigable or not. You have been given the definition numerous times and you are just convinced the statutes were designed to protect something other than the definition given in the statute.

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Condescension does not become you, sir.

My contention is that drainages like Johnson Fork, even a mile or two uphill from its confluence with the Llano are not what the authors of the law were describing. They don't have the same kind of channel as those streams and estuaries that carry water continuously, or nearly so.

I hafta wonder what your bias is that makes you (and others) so seemingly obtuse regarding acknowledging the clear distinction between even a small, insignificant river such as the Llano, and the small drainages that empty into it that you insist deserve no distinction. "You" (meaning you and others on this thread) refuse to entertain even a discussion about it, preferring to 'intellectually hide' behind existing staute and case law rather than consider an alternative narrative, or amending the law to reflect current reality. Why is that unreasonable? Even preferred?