quote:

---

skinned his smoke wagon and pointed it towards him.

---

quote:

---

Me too trouble. How do you go about locating these rulings? He was kind of vague and I didn't want to come across as argumentative or that I was questioning his word. He made mention to the County Attorney's Office having had a sign posted out there in the past.

---

quote:

---

Just heard back from the Game Warden. He said that it is private water. Said it was a Supreme Court ruling that grandfathered the ranch in due to the age of the ranch. Said everything upstream was private as well as everything upstream of Mo-Ranch over on the North Fork. I'm really bummed! I thought I had found a hidden jewel. Fish were heavy and thick up there, not to mention it was a gorgeous, quite spot to paddle.

I'm very familiar with that stretch Doc. My office window looks out on the good stretch between Waltonia and the Ingram Dam. I work at one of those camps. There are fish in this stretch but nothing like what I saw this weekend. Damn!

---

quote:

---

Even though the fence across the river may be illegal, they are gonna ask how you got from one side of the fence to the other without getting out of your canoe/kayak and thus trespassing.

---

quote:

---

is this the type of thing you could get an AG opinion on?

---

quote:

---

quote:

---

is this the type of thing you could get an AG opinion on?

---

I don't think that an AG will give an opinion for an individual. Doesn't it take like a district attorney or something to have a chance at getting an AG opinion?

---

quote:

---

I got run off of the most southern end of Lynch creek in San Saba county while padding the Colorado. Had to be one of the best fishing holes I have ever been in and would love to know if I was in the right or wrong. I got there while in my yak and never set foot on the bank.

Highly recommend it if it is legal.

Logged

---

quote:

---

I
I wish some of these online kayak communities would join together to start challenging some of these local LE rulings and get some current case law on the books. It would be a slow, expensive thankless process though.

---

quote:

---

In Texas, the land under navigable streams is legally open for public access. No state agency, however, holds plenary responsibility for the management of freshwater riverbed lands. In effect, the Texas Legislature is the land manager for most of the roughly one million acres underlying navigable fresh water in Texas. By contrast, the Texas Parks and Wildlife Department (TPWD) manages the state parks, and the Texas General Land Office (GLO) oversees coastal submerged lands. Various state agencies have been allotted authority over limited aspects of freshwater riverbeds, but no agency is generally in charge. As a result, when new riverbed usage issues arise, the Legislature must address them directly. When deeds show private ownership of the beds of navigable streams, some believe that public use of these areas (whether by motor vehicle or some other means) is trespassing. A 1920s law called the "Small Bill," however, made clear that the public may legally access navigable streams regardless of a valid deed to the riverbed's surface. A 1956 Attorney General Opinion established that the public's right to use Small Bill streams persists even when the stream is dry. Public access to rivers is legally protected, and physical entry is easy in many parts of Texas. Indeed, it is a criminal offense to obstruct the intersection of a public road and a navigable waterway.

---

quote:

---

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 streameven 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:

quote:

---

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:

quote:

---

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).

---

---

quote:

---

Q: Some landowners in my county have deeds to the riverbed. Can they exclude the public from their part of the river?

A: Not if the river is navigable. The policy of the government of Texas, expressed in statute since the days of the Republic, has been to retain the beds of navigable streams as public property. However, the state surveyors did not always adhere to this law, and some land grants purported to include the beds of navigable streams. To remedy this situation, in a 1929 law known as the Small Bill, the state relinquished to the adjoining landowners certain property rights in the beds of some navigable streams. However, this statute declared that it did not impair the rights of the general public and the state in the waters of the streams. So even if a landowner's deed includes the bed of a navigable stream, and taxes are being paid on the bed, the public retains its right to use it as a navigable stream.

It is a fairly common myth that a person boating along a "Small Bill" stream may not set foot on the streambed if the landowner forbids it. This is based on the notion that a person who steps into the streambed has entered onto private property within the meaning of the criminal trespass law. This may have some applicability when the waters of a stream leave its banks and a boater navigates out of the streambed and steps onto the adjacent private lands, or on coastal land when tide waters cover private property. But the general public has the right to walk within the boundaries of any navigable streambed, even if there are private ownership rights under the Small Bill.

...

Q: How can I tell whether a stream/lake is public or private?

A: Texas courts have the final say over this question, and there have been several cases recognizing particular streams as navigable or perennial, and therefore public. But there is no master list. Somewhere in the courthouse there's probably a map showing the original surveys of your county. From this map you should be able to tell which if any land grants were made by Spain or Mexico. Within these 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. Sometimes it's helpful to do a word search in the cases and A.G. opinions for the name of the stream. Although this is a state issue, the federal courts occasionally issue an opinion containing helpful information about a stream, so take a look at the federal cases too.

Q: Is it lawful to fence a stream?

A: That probably depends on whether the stream is public or private. Since the public has a general right to walk and boat in a public stream, a landowner has no right to erect or maintain a fence that interferes with those lawful activities. Additionally, it is a crime to restrict, obstruct, intefere with or limit public recreational use of a navigable stream.28 It is a more serious crime to obstruct a waterway to which the public has access so as to make passage impossible or unreasonably inconvenient or hazardous. It is easy to imagine situations where a fence in or across a public stream would do just that. But do these statutes prohibit a landowner from putting a fence in or across a private stream? That sounds unlikely, since the public has no lawful access to a private stream without the consent of the owner of the streambed. So it seems to be lawful for a landowner to erect a fence in a non-public streambed.

---

quote:

---

texas guadalupe river "small bill"

---