Ever wonder if you can fish a body of water.
Under Texas Law, a stream is considered public if it is navigable in fact or navigable by statute, the latter referring to any stream that retains an average width of 30 feet from the mouth up. As the entire stream-bed is considered in calculating width, there is no distinction made as to whether the stream is dry. During the original survey of Texas in the 1840s, John Borden, the first commissioner of the Texas General Land Office, instructed surveyors to not extend survey lines across navigable waterways. As a result, in many rivers in the state, such as the Llano, the stream-beds are owned by the state, in trust for the public. However, on many smaller waterways, including the James, survey lines were extended across the stream-bed. [ii]
In 1929, in an attempt to remedy some of the confusion resulting from survey lines crossing navigable waterways, the State passed the Small Bill that validated these surveys. [iii] However, the Small Bill noted that such validation did not impair the rights of the general public and the state in the waters of the streams. Such rights include navigation. So even if a landowner’s deed includes the bed of a navigable stream, the public retains its right to use it as a navigable stream. [iv]
In addition, the state lays claim to any water within a defined watercourse. The Texas Administrative Code defines a watercourse as “a definite channel of a stream in which water flows within a defined bed and banks…” [v] Waters of the state require requires a water rights permit from the Texas Commission on Environmental Quality. [vi] Under the Small Bill, the state also retains possession of the sand and gravel found in the stream-beds. Consequently, the removal or disturbance of this material may require a permit issued by the Texas Parks and Wildlife Department. [vii]
Landowners in the western Hill Country have been alarmed by recent reports that the Texas Commission on Environmental Quality (TCEQ) is re-classifying certain non-navigable streams as navigable, thereby converting private property to state land and opening it to the public. These issues are confusing, because navigable streams and private property involve two separate and long-established sets of legal rights that sometimes conflict with each other.
Since 1837, Texas statutes have deemed a stream to be navigable so far as it retains an average width of 30 feet from the mouth up. A state agency such as TCEQ cannot arbitrarily re-designate a non-navigable stream as navigable. Rather, it can only determine whether a particular stream meets this statutory definition of “navigable.”
For landowners, this classification is critical because Texas law grants the public a right to use navigable streams up to the gradient boundary. This right of free use and movement, which dates back to the 1830s, encompasses more than just commercial navigation; a Texas court expressly approved recreation as a lawful use of navigable streams as early as 1917. In contrast, the public has no right to use non-navigable streams on private property.
Some of the older survey lines in Texas extended across the beds of smaller waterways rather than stopping at the bank, so that the landowners hold title to the streambeds as part of their property. Ordinarily, the bedrock of private property rights is the right to exclude. However, Texas cases and statutes have long established that the landowner’s property rights in the bed of a navigable stream do not trump the public’s conflicting navigation rights. One appellate court explained in 1981 that owners of streambeds “cannot unreasonably impair the public’s rights of navigation and access to and enjoyment of a navigable water course.”
At the same time, a state agency’s determination that a stream is navigable does not transform a privately-owned streambed into state land. The Texas legislature validated these trans-stream survey lines in 1929, so that landowners who hold title to a streambed retain many property rights in it. Nonetheless, that portion of their private property is burdened by the public’s longstanding right to use navigable streams.
Finally, members of the public cannot cross private property to access a navigable stream. They can only do so from public land (usually a road) adjacent to the stream.