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HomeNL-2018-07 River Rights 2


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

Introduction

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.



Part III of VI

  The law is well settled that the public has the right to travel on and use the navigable rivers of the state. The Texas Supreme Court has ruled as early as 1813 that navigable streams are beyond question the highways of travel and trade for the citizens of the state. Therefore, if a river is "navigable", the public can boat, fish, float or use it for other recreational pursuits! Private riparian landowners along the banks of navigable rivers may NOT erect or maintain fences etc. across streams to keep boaters or other users from traveling "unimpeded".

  The public has NO LEGAL RIGHT to use nonnavigable rivers, and riparian owners of land along these rivers can prevent public use. Therefore, the key to the Public's right to use a river is based on the "navigability" of the river.

  Texas has adopted two tests to determine a river's navigability:
      (1) the Federal navigable "in fact" test, and;
      (2) a State navigable "in law" test.

  The Federal navigable "in fact" test identifies rivers as navigable "in fact" on the basis of whether they are able to sustain commerce. Simply, has the river served as a highway for commerce? If the river does not meet the Federal test, then the state test applies. The Texas legal definition has nothing to do with whether a boat can actually navigate a river, but rather it is based solely on the width of the river!

  The origin of the Texas "in law" test can be traced to Spanish and Mexican Law, as superceded in 1837 by an act of the Republic of Texas. Spanish law provides that the streambed of "perennial" or "torrential" streams (both terms defined generally as "continually flowing") was owned by the sovereign. This 1837 statute passed by the Republic, now codified into Texas law, stipulated that land grant survey should not cross navigable streams. Navigable streams were then defined by the act as those that average 30 feet or more from the mouth upstream, and the Act declared that the beds of such streams were the property of the state. Thus, streambed ownership and navigability are intertwined Issues that determine Texas' "in law" test.

  Simply stated, a Texas river or stream is navigable "in law" if it averages 30 feet in width from mouth upstream. This means that the public has a right to use them for recreation, travel and public purposes. The beds of these streams are also owned by the state, and the public has a corresponding right to use these stream beds particularly when they form islands or sandbars.

  However, the navigability of "intermittent" streams becomes questionable because the original law dealt only with "perennial" streams. Legal waters on this issue will remain murky until the Texas Supreme Court or legislature clarifies this issue. The resolution of whether a stream is "navigable" or "nonnavigable" (and correspondingly whether the public has the right to use the river) will be determined on a case-by-case basis with the courts using the Federal "in fact" test or the Texas "in law" test.

References: Texas Water Resources Institute, Texas Parks and Wildlife, Texas State Attorney General's Office, Texas Water Commission.



Part IV of VI


  Let's talk now about a real complex problem - the one that causes the most troubles for landowners and river users, the one least understood by both, i.e., that of the public's right to use riverbanks. This is the most complex legal issue that river recreation faces.

  It is generally accepted that the public may use the beds of navigable rivers and their river banks up to the line dividing public ownership from that of the adjoining private property. It is also well established that the public has no legal right to go beyond that dividing line without the consent of the private landowner!

  Section 10.05 of the Texas Penal Code provides that a person commits a
criminal trespass if
     -he enters or remains on property
     -without effect consent and he:
     1. had notice that the entry was forbidden, or
     2. received notice to depart but failed to do so.

  The code recognizes that notice can be provided by "fencing the property" or "posting signs" at locations that are likely to come to the attention of potential intruders. A criminal trespass violation is punishable by a fine of up to $1000 or confinement in a jail for up to 30 days, or both.

  So where's the dividing line between the publicly owned riverbank and the privately owned riverbank? Where is the line below which a river runner can use with impunity, and above which he risks being "slammerized" by a landowner for criminal trespass? The legal dividing line between public and private on a navigable stream is called the "gradient boundary line". As defined by the U.S. Supreme Court, "This is a line located midway between the lower level of the flowing water that just reaches the "cut bank" and the higher level of it that just goes overtop the "cut bank" (see Fig. 1). This is a great legal definition for courts and lawyers, but locating the
imaginary line on a riverbank would require precise work by a team of surveyors! A canoer who steps out of a boat on a navigable stream could be above the gradient boundary line and therefore risk being "slammerized". When in doubt, err on the conservative side - stay in your boat!

  A significant point that remains untested and unresolved in Texas is how the common law "emergency trespass rule" applies to river recreationists. Under this rule, it is a defense to a charge of trespass, for a person in peril or in an emergency to commit a reasonable trespass. To date, it has never been determined in Texas courts whether a person who is lost, in a damaged boat, or going for emergency assistance is justified in entering private lands. Logically, rivers with access points miles apart provide a strong argument for this!

* Facts checked by Texas Water Resources Institute, Texas Water Commission, and
Texas Attorney General's Staff.








The author, Leonard Hulsebosch