Diversion Lake Club v. Heath, 6515.

CourtSupreme Court of Texas
Writing for the CourtSmedley
Citation86 S.W.2d 441
PartiesDIVERSION LAKE CLUB v. HEATH et al.
Docket NumberNo. 6515.,6515.
Decision Date02 October 1935

Page 441

86 S.W.2d 441
DIVERSION LAKE CLUB
v.
HEATH et al.
No. 6515.
Supreme Court of Texas.
October 2, 1935.

Error to Court of Civil Appeals of Third Supreme Judicial District.

Page 442

Suit by the Diversion Lake Club against R. W. Heath and others, in which defendants filed a cross-action. The judgment, partly adverse to plaintiff was affirmed by the Court of Civil Appeals [58 S.W.(2d) 566], and plaintiff brings error.

Judgments of the trial court and the Court of Civil Appeals affirmed.

Templeton, Brooks, Napier & Brown, W. L. Matthews, and Hertzberg & Kercheville, all of San Antonio, for plaintiff in error.

Ocie Speer, of Austin, and Ben H. Kelly and Marcus W. Davis, both of San Antonio, for defendants in error.

SMEDLEY, Commissioner.


This case presents the interesting and important question: Do the public have the right to fish in a lake created by the lawful construction of a dam across a river not navigable in fact, but declared to be navigable by statute, or does the exclusive right to fish in such lake belong to one who owns both the bed of the lake, except that part of same which was originally the bed of the river, and the land bordering the lake on both sides?

In the years 1911 and 1912, as part of an irrigation project, and under authority given by the statutes pertaining to the appropriation of water for irrigation and other purposes, two dams were built across the Medina river and two lakes formed, the upper lake covering 5,800 acres and the lower lake, known as Diversion Lake, covering about 150 acres when full. Prior to the construction of the dam, Medina river, which is described as being as old as the watershed and as draining about 700 square miles, was not navigable in fact, but it was, according to the verdict of the jury, which is not questioned here, a navigable stream as defined by article 5302 of the Revised Civil Statutes of 1925 (the act of 1837), in that it retained an average width of more than 30 feet from its mouth up to the upper dam. The surveys pursuant to which the land in the vicinity of the two lakes was granted by the state, in accordance with the mandate of the statute, front on the river and do not cross it. Thus the title to the bed of the river was reserved to the state.

Plaintiff in error, Diversion Lake Club, a corporation formed about the year 1926, became the owner of two strips of land, each about 1,500 feet in width and 4 miles in length, fronting on what were originally the two banks of the river, and extending from the dam forming Diversion Lake up to the dam forming the main or upper lake, but not including either the bed of the river or a public road which crosses Diversion Lake near its upper end.

Plaintiff in error constructed a deer-proof fence around the land which it acquired, stocked the lake with fish procured from the United States government, and improved the property for the use of its members for fishing, hunting, boating, and bathing.

Defendants in error, citizens of the state and residents of Bexar and Medina counties, entered the waters of Diversion Lake and fished in it by placing their boats into the water from the low bridge on which the public road crosses the river and the lake near the upper end of the lake. Thus they were able to obtain access to the waters of the lake without trespassing upon the property of plaintiff in error unless they became trespassers when they fished in the water above that part of the bed of the lake to which plaintiff in error has title.

This suit was filed by plaintiff in error to enjoin defendants in error from fishing in the waters of the lake or taking fish therefrom or trespassing upon the land owned by plaintiff in error under and surrounding the lake. Defendants in error Heath, Matthews, and Self by their answers asserted rights as members of the public to use the waters of the lake for fishing as part of the water of a navigable stream belonging to the state for the benefit of the public in general. They asserted also the right to use the banks of the lake for fishing, and sought by cross-action to enjoin plaintiff in error from interfering with them in the exercising and enjoyment of their rights so to use the water and banks of the lake.

The trial court rendered judgment granting plaintiff in error a permanent injunction restraining defendants in error from going on or over, or trespassing upon, or using for fishing, any of the land owned by plaintiff in error surrounding the waters of Diversion Lake, and granted defendants in error a permanent injunction restraining plaintiff in error from interfering with them in their right to fish in the waters of the lake, and directed that the fences of plaintiff in error across the river and lake be so maintained as not to prevent defendants in error from going up and down the lake in boats and fishing in its waters. This judgment was affirmed

Page 443

by the Court of Civil Appeals. 58 S.W. (2d) 566.

The first contention made by plaintiff in error is that, because it is the owner of all the land on both sides of Diversion Lake and the Medina river where the lake was formed, it has the exclusive right to fish in the waters of the lake and the river adjoining its land. The contention is based upon the rule of the common law that the owner of land upon both sides of a navigable river above the ebb and flow of the tide has the exclusive right of fishing in the stream to the extent that it flows through his land, and upon the adoption by the state of Texas in 1840 of the rules of the common law.

The authorities do indicate that the common law of England gave to the owners of land along navigable rivers above the ebb and flow of the tide the exclusive right to fish in such rivers. Hartman v. Tresise, 36 Colo. 146, 84 P. 685, 4 L. R. A. (N. S.) 872; Schulte v. Warren, 218 Ill. 108, 75 N. E. 783; Willow River Club v. Wade, 100 Wis. 86, 76 N. W. 273, 42 L. R. A. 305; Kinney on Irrigation and Water Rights (2d Ed.) vol. 1, p. 605; Farnham's Water and Water Rights, vol. 2, p. 1364; 26 C. J. p. 598; Kent's Commentaries (11th Ed.) vol. 4, p. 525.

This exclusive right to fish, however, was given to the adjoining landowners by the common law of England by reason of the fact that they were the owners of the beds of the rivers above tidewater. Farnham, in discussing the right to fish in nontidal water in England, says: "In England the King's title to the water depends upon its tidal character, and, since the right to fish follows the title to the water, his right, and therefore the right of the public, to fish went no farther than the flow of the tide." Farnham's Water and Water Rights, vol. 2, p. 1364.

Similarly, Kinney, in discussing the rule of the common law, says: "The right to fish in, or to hunt on certain waters, in the absence of grants or prescription, is in harmony with the ownership of the soil under those waters; if the title to the soil is in the State, the right to fish or hunt is in the public; but upon the other hand, if the title to the soil is in the riparian owner, he has this right." Kinney on Irrigation and Water Rights (2d Ed.) vol. 1, p. 605.

The general rule is well established by the authorities that the right to fish in a stream, whether belonging to the public in common or exclusively to the owners of the land bordering the stream, is determined by the ownership of the bed. The Supreme Court of Illinois so held in Schulte v. Warren, 218 Ill. 108, 75 N. E. 783. Similarly, it was held by the Supreme Court of Colorado, in Hartman v. Tresise, 36 Colo. 146, 84 P. 685, 4 L. R. A. (N. S.) 872, that at common law the exclusive right to fish in a stream above the ebb and flow of the tide belongs to the adjoining landowner as an incident of his ownership of the bed of the stream. People v. Truckee Lumber Co., 116 Cal. 397, 48 P. 374, 39 L. R. A. 581, 58 Am. St. Rep. 183, holds that the common right to take fish extends to all waters the lands underlying which are not in private ownership, whether the water is navigable or not. The court announced the rule in Herrin v. Sutherland, 74 Mont. 587, 241 P. 328, 331, 42 A. L. R. 937, with citation of cases from several states, that in this country the right of fishing in all waters, the title to which is in the public, belongs to all the public in common. It then, after pointing out that the state of Montana is the owner of all land below the water of a navigable stream, concluded: "Perforce, then, the waters above the bed or channel of a navigable stream at low water mark are public waters, and in this the public have a right to fish."

See, also, State ex rel. Thompson v. Parker, 132 Ark. 316, 200 S. W. 1014; Gratz v. McKee (U. S. C. C. A.) 270 F. 713, 23 A. L. R. 1393; note, 11 A. L. R. 241, and following; note, 60 L. R. A. 481, pp. 486, 487.

A rule of the common law of England which gave to owners of land along navigable streams above tidewater the exclusive right to fish in such streams because of their ownership of the beds of the streams can have neither application nor value in determining the right to fish in navigable streams in Texas, the beds of which are owned by the state for the benefit of the public.

The doctrine of the common law of England that the title of the owner of land bordering on a river above the ebb and flow of the tide extends to the middle of the stream, while adopted in some of the states, has been rejected by many of them, particularly by those which, like Texas, have been touched by the civil law, as in-appropriate and inapplicable to the waters of this country; and the rule of many of the states, often referred to as the better

Page 444

rule of the civil law, is that rivers which are navigable in fact are public, and that the beds of such rivers belong to the state. Manry v. Robison, 122 Tex. 213, 232, 56 S.W.(2d) 438; Packer v. Bird, 137 U. S. 661, 11 S. Ct. 210, 34 L. Ed. 819; 27 R. C. L. pp. 1360, 1361; Gould's The Law of Waters, § 67, pp. 135,...

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