Diversion Lake Club v. Heath

• Decision Date: 08 March 1933
• Docket Number: No. 7765.,7765.
• Citation: 58 S.W.2d 566
• Parties: DIVERSION LAKE CLUB v. HEATH et al.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

58 S.W.2d 566

DIVERSION LAKE CLUB v. HEATH et al.^*

No. 7765.

Court of Civil Appeals of Texas. Austin.

March 8, 1933.

Rehearing Denied March 29, 1933.

COPYRIGHT MATERIAL OMITTED

Appeal from District Court, Bexar County; Robt. W. B. Terrell, Judge.

Proceeding by the Diversion Lake Club against R. W. Heath and others, in which defendants filed a cross-action. From the judgment, plaintiff appeals, and defendants cross-assign error.

Affirmed.

See, also, 33 S.W.(2d) 479; 52 S.W.(2d) 380.

Hertzberg & Kercheville and Templeton, Brooks, Napier, & Brown, all of San Antonio, for appellant.

Ben H. Kelly, of San Antonio, and Ocie Speer, of Austin, for appellees Heath and Matthews.

Marcus W. Davis, of San Antonio, for appellee Norman W. Self.

BLAIR, Justice.

Appellant, Diversion Lake Club, instituted this proceeding to restrain appellees R. W. Heath, M. L. Matthews, and Norman Self from trespassing upon its lands riparian to Diversion Lake and Medina river, as a way to reach and fish in the waters of said lake and river; and also to restrain them from using boats and fishing in said waters. By cross-action appellees sought to perpetually restrain appellant from interfering with their right as citizens of this state to fish in or take fish from the waters in question, and to use the banks of the lake and river in the exercise of their right of fishery, alleging that such waters were navigable or public within the terms of article 5302, R. S. 1925, which reserved them, together with all the fish therein, to the state for the use and benefit of the public. The jury found on the sole issue submitted that the Medina river "retains an average width of thirty feet from its mouth up" to a point above the riparian lands and waters in controversy; and judgment was rendered perpetually restraining appellant from interfering with the right of appellees to enter upon the waters in controversy in boats and to fish in and take fish therefrom, the order requiring appellees to enter the waters of the lake and river by way of a public road and bridge across them. The judgment perpetually restrained appellees from interfering with appellant's existing fences, from trespassing upon appellant's abutting or riparian lands as a way of entering the waters, and from using the banks of said Diversion Lake and Medina river in the exercise of their right of fishery. Appellant has appealed from the order permitting appellees to fish in the waters; and appellees have cross-assigned error with regard to the order restraining them from using the banks of the lake and river in the exercise of their right of fishery.

The evidence shows that two dams have been constructed under authority of the state across the Medina river in Medina county, Tex. The first one constructed is known as the Medina dam and impounds the commingled waters of the Medina river and flood waters from water sheds above the dam, and the large body of water thus formed is known as Medina Lake. The second dam is about four miles below the Medina dam, and is known as the Diversion dam, and impounds the commingled waters passing over or through the Medina dam, the waters of Medina river, and the flood waters from watersheds above the Diversion dam; and the body of water thus impounded is known as Diversion Lake. The Diversion dam was constructed under authority of the state statutes to impound waters for an irrigation project or enterprise. Appellant's lands are defined in the judgment "as two strips of land, each approximately 1500 feet in width and four miles in length, fronting on the shore line the entire distance on Diversion Lake on both sides and bounded by the main dam and the Diversion dam, except the public road which runs between the two dams crossing the Lake and River." Appellant's predecessors in title purchased the lands from the state, the grants calling for or extending only to the banks of the Medina river. Appellant, Diversion Lake Club, is comprised of about 25 members, and it has fenced the lands described and uses them as a recreation resort for its members exclusively. Deer, turkey, and quail are raised on the premises, and the club stocks the waters in question with fish; and the members of the club use the lake and river for hunting ducks, fishing, boating, and bathing. Appellant is not interested in the irrigation project; and the irrigation company has the right to use all the waters in Diversion Lake for irrigation purposes, if it desires, or should it become necessary to do so. Appellees' sole interest is that of the public generally to boat and fish in the navigable or public waters of this state. The evidence fully sustains the jury's finding that the Medina river retains an average width of thirty feet from its mouth up to the Medina or main dam, which, of course, includes the portion abutting on appellant's lands. Appellees were shown to be citizens of this state and to have fished in the waters for a number of years, entering same by boat from the public road and bridge across the lake and river, until appellant stopped them by a temporary injunction issued herein, which was sustained on appeal to the Court of Civil Appeals at San Antonio (33 S.W.(2d) 479), because the question of whether the waters in question were navigable or public had not been determined by a trial, the court holding that the burden was upon appellees to prove such issue before they might exercise their right of fishery in said waters. On this trial on the merits, the temporary injunction was dissolved and the judgment or orders aforementioned entered.

The appellant presents two main propositions, which are in substance as follows:

1. That the court erred in permitting appellees to enter upon and fish in the waters of Diversion Lake, because such waters are within appellant's inclosure and are situated wholly upon lands belonging to appellant, and in which appellees have no right or interest, but are naked trespassers.

2. That the court erred in permitting appellees to fish and use a boat in all of the waters of Diversion Lake, because all or a substantial portion of said waters are impounded upon lands belonging to appellant and lying beyond the banks which originally retained the normal flow of the Medina river before the construction of Diversion dam.

The specific contention of appellant under its first proposition is that under the common law of England, which was adopted in 1840 (Rev. St. 1925, art. 1), and which has since been the rule of decision in Texas, all grants by this state of lands lying on fresh water statutory navigable streams have carried with them, as a part of the title to the soil, full riparian rights; and that where, as in the instant case, the lands "on each side of the river or stream belong to the same person, he has the exclusive right of fishing so far as his lands extend along the same." Kent's Commentaries (12th Ed.) vol. 4, p. 412. And further, that except for the holding that irrigation is one of the riparian rights, the law of riparian rights in Texas is the same as the law of riparian rights at common law.

Whatever may have been the right of common, free, or several fishery in the navigable nontidal rivers or streams of England under the common law as it existed in 1840, and about which the authorities seem to be quite unsettled, is not material to a decision in this case, because the right of fishery in public or navigable waters in Texas must be determined not only in the light of the Mexican civil law and the common law, but also in the light of statutory enactments. Suffice it to say here, that the chief difficulties as to the common-law rule seem to have arisen with regard to determining the primary question of whether a particular stream or river should be classified as "navigable" or "non-navigable," and according to the common-law rule the criterion of navigability was whether the tide ebbed and flowed in the stream. This test was found to be unsuitable for determining the navigable character of the large rivers of America, and in most states the rule of "navigability in fact is navigability in law though the tide does not flow in the stream" was adopted. 11 R. C. L. 1029. Since 1837, the statutory test of navigability of a nontidal stream in Texas was and is now made to depend upon whether the stream retains an average width of 30 feet from its mouth up, without regard to navigability in fact. Acts 1837, p. 63, article 5302, R. S. 1925. It may also be observed that, while the right of public fishery in nontidal navigable streams may have been quite unsettled in earlier days, the rule at common law seems to have become finally established at least by 1840, that when the navigability of a nontidal stream was established, the crown held the rights of fishery in such stream, as well as navigable rights, in trust for the use and benefit of the English people, without regard to the ownership of the soil beneath the stream; and, of course, there was always unanimity of decision that at common law, where the ownership of the land beneath the tidal navigable streams remained in the crown, the public had a general right of fishery in such navigable streams or waters. 11 R. C. L. 1021-1029; 27 R. C. L. 1316; 26 C. J. 602; Willow River Club v. Wade, 100 Wis. 86, 76 N. W. 273, 42 L. R. A. 305. And except as to statutory or different tests as to navigability and as to certain powers given the federal government by the United States Constitution, the powers of Parliament, and the prerogatives of the King of England with regard to the right of the public to fish in public waters and navigable streams, as exercised under the common law of England and the civil law, have been exercised by the several sovereign states of America. Texas has exercised similar powers and prerogatives since its earliest existence as a sovereignty; and, while Texas adopted the common-law rule of decision in 1840, it was with statutory and constitutional...