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HomeNL-2018-08 River Rights 3

My Rights... Their Rights... Who's Right?
Reprinted from June - July 1989
by Leonard Hulsebosch


The newsletter section of this web site contains 40 years of Houston Canoe Club newsletters. Amidst those many publications are buried a lot of gems of information and wisdom, that are still just as valid today as when they first appeared. The following article from 30-years ago is one of those gems.

This was originally a six-part article, but instead of making everyone wait six months to read it all, I'm going to combine two parts per month, so that you'll get it over three months instead.

You can read the previous parts I and II  here, and parts III and IV here.

Part V of VI


  The determination of the navigability of a lake is somewhat different from the tests used for rivers and streams. Here the test is whether the Lake is navigable "in fact".*

  Texas court cases applying the navigability "in fact" test have resulted in confusing and opposite results.

  In 1917, Welden vs. State, a lake three and a half miles long and two miles wide with an average depth of four feet was found to be navigable. The court noted that "It is a reasonable rule that lakes large enough to be useful to the public for boating and fishing should be held to be public and not private property."

  However, in 1953, Taylor Fishing Club vs. Hammett, the court found a lake one and a half miles long and 700 feet wide with an average depth of 15 feet was not navigable. The court stated, "...The lake is useful for fishing and as a general pleasure resort, but it is generally held that a lake that is chiefly valuable for fishing and pleasure boats of small size, is not navigable." You go figure...!

  The results of these two cases are so confusing that, in our opinion, the navigability of many Texas lakes without a navigable stream inlet or outlet will have to be decided on a case-by-case basis.

* Lakes identified as navigable "in fact" on the basis of whether they are able to sustain
commerce. Simply, has the lake served as a highway for commerce?

Coastal Waters

  Now let's talk about Gulf Coast waters of Texas. Texas' coast extends nearly 600 miles along the Gulf of Mexico. The shoreline continues 2500 miles along islands, peninsulas, marshes, bays and estuaries. Thus, the coastal area has great recreational value.

  We may divide Texas Coastal lands into three areas. 1) Uplands 2) Tidelands 3) Submerged lands.

  UPLANDS  This generally refers to the area of land above the influence of the mean high tide. Most of the state's coastal uplands are privately owned. The original source of title to these lands may be either by a Spanish or Mexican land grant or by conveyance from the Republic or State of Texas.

  TIDELANDS  Land generally located below the mean high tide and above the mean low tide is referred to as tidelands. It is the area of wet sand subject to "the ebb and flow" of the tides. Except for some tidelands granted to local governments or private parties, the state owns the land lying below the mean high tide and above the mean low tide.

  SUBMERGED LANDS  In 1836 the Republic of Texas established seaward boundary at three marine leagues (roughly 10.25 miles) from the Gulf of Mexico's shore. When the Republic was admitted to statehood in 1845, the U.S. Congress accepted the Texas
Constitution and laws, including the three-league boundary. In 1953, Congress passed
the Federal Submerged Land Act confirming Texas' title to the bottomland of the
Gulf out to the three marine-league limit.

The next article will discuss the public's right to use the Gulf waters, and the Open Beaches
Act of 1959.

Part VI of VI


  Texas was a leader in protecting the use of its seashore and public access to it, way before many other states recognized the values of beaches.

  In 1959 the legislature passed the Texas Open Beaches Act, verbalizing the state policy of guaranteeing recreational usage of its beaches and tidal waters. The Act recognized state ownership of tidelands and the public use of these wet sand beaches, but went one step further and extended a right of public access into the upland areas of the beaches. Section 61.011 of the Natural Resources Code declares the public policy of Texas to be: that the public shall have the free and unrestricted right of ingress and egress from state owned beaches bordering on the seaward shore of the Gulf of Mexico or, if the public has acquired a right of use or easement to, or over an area - the public shall have a right of ingress and egress to a larger area extending from the mean low tide to the line of vegetation bordering on the Gulf of Mexico.

(Figure 1 Rights of public access: Open Beaches Act)

  Figure 1 shows the public has a right to use the dry sand portion of Texas beaches below the vegetation line, even though this upland area may be privately owned. Another provision states that a private littoral owner's title does not include the right to prevent the public from using the area below the vegetation line for ingress or egress to the sea. There is a prescriptive right of public access to this area.

  Moreover, the act specifically prohibits private property owners from constructing fences or barriers from the vegetation line to the mean high tide line to prevent the public from using this area.

  A private landowner may prosecute beach users for trespassing if they cross upland private property to reach a beach covered by this act. However, once a user obtains lawful access to the open beach area, the user may travel freely up and down the beach.

  The Texas Open Beaches Act does not apply to: 1) beaches on the landward side of islands and bays; 2) remote beaches on islands not accessible by road or ferry; 3) beaches over which no prescriptive right has been established. Short of the above limiting conditions, the Open Beaches Act of 1959 grants the public the rights of ingress and egress over all gulf-side beaches below the vegetation line.

The author, Leonard Hulsebosch