Honorable Wm. J.~Tucker
Game, Fish & Oyster Commission
Austin, Texas
Dear Sir: Opinion No. O-5915
Re: Validity of sale by Commis-
sioner of the General land
Office of 5420 acres of land
in Calhoun County, Texas,
known as Green Lake, and jur-
isdiction of Game, Fish &
Oyster Commission in relation
thereto.
Reference is made to your request to this Department
for an opinion relative to the validity of the sale by the
Commissioner of the General Land Office of 5420 acres of land
in Calhoun County, Texas, known as Green Lake, end the extent
of the jurisdiction of the Game, Fish & Oyster Commission over
this property.
From the Information furnished us by the Commissioner
of the General Land Office, as reflected by the records of his
office, it is shown that Green Lake was awarded to Elmer Yates
on July 13, 1918, by reason of his application of the same
date. The application to purchase and the award of July 13,
1918, were based on the application to the county Surveyor of
Calhoun County for a survey, and the resulting survey of July
1, 2, 3 and 4, 1913, of 5420 acres known as Survey No. 1,
Elmer Yates. The field notes and application for survey were
filed in the land office on July 23, 1913. Records in the
land office show this property to be In the name of Mary
Louise K. Bryan et the present time. It was leased for oil
and gas to the Magnolia Petroleum Company on August 2, 1943.
When the request for this opinion was received in this
office, It was brought to the attention of the parties lnter-
ested in the property by virtue of the 1918 award. We later
attended a conference where the different questions involved
were discussed. Mr. Tom Fletcher of the firm of Vinson, Elkins,
Weems & Francis and Mr. R. T. Wilkinson, Jr. of the Magnolias
Petroleum Company were kind enough to submit a brief In sup-
port of their reasons why this sale of Green Lake should not
be disturbed, and why the State could not now successfully et-
tack the sale.
Hon. Wm. J. Tucker - page 2 o-5915
We have given this brief very careful study, and have
considered It while writing this opinion. While our discussion
of some of the points raised will be brief, we have neverthe-
less given them serious consideration.
Briefly, the following points were raised in this brief,
and all ere relevant to your opinion request:
' 1.. The statutes referred to in the cage'of Welder v.
State, 196 3. W. 868, did not prohibit the Commlssloner of the
General Lend Office from selling Green Lake,
2. If the sale was prohibited in that Green Lake was
reserved from sale, then the sale was valldeted,by the sub-
sequent enactment of the "Small Bill" (Art. 5414e, V.A.C.S.)
3. That subsection 4 of Article 5329, V.A.C.S. when
applied to this sale would be a bar to recovery in the event
of suit by the State.
Generally and in connection with all the questions
presented, we review the case of Welder v. State, supra, as
we constder that case authority on most of the issues invol-
ved here.
In that cese the owners of the surveys bordering on
Green Lake contended their boundary lines extended to the cen-
ter of the lake. The State in order to determlne the owner-
ship of the lake brought suit in trespass to try title against
tha adverse claimants. Upon e trial in Travis County, judg-
ment wes rendered in favor of the State. Upon appeal the
findings of fact filed by the trial court were adopted by the
Court of Civil Appeals. That part of the findings of fact
considered relevant here are set out below:
11
'1 Green Lake, the subject of controversy
in thls'case, is en inland fresh water lake, sit-
uated in Calhoun County, Tex., about 24 miles from
Guadalupe river, and is situated in the valley of
the Guadalupe river, the eastern portion of said
lake bordering upon the foothills which mark the
beginnlng of the upland. The lake is shallow at the .
margln, gradually becoming deeper for a distance
of a few hundred feet where it ettatns its maximum
depth, the remainder of the bottom of the lake
being parctlcally level end the water being of en
average depth et the ordinary water stage of about
4 feet. On occasions of any~consldereble overflow
of the Guadalupe river ( which occur not infrequent-
ly) the lake is filled by the flood waters of the
, ,
Han: Wm. J. Tucker - page 3 o-5915
river, and this Is the main source of the renewal of
its waters. During times of large overflows the
whole valley of the river to the foothills, including
the lake and all of the surrounding country, is
submerged. The lake contains,approximately 6,000
acres of lend, end is about 13 miles in circumference.'
"'II. Green Lake has been used end is valuable
principally as a watering place of stock belonging
to the owners of the surrounding lands. However,
fish in considerable quantities have been taken from
it and sold, and boats have been operated upon It
for the purpose of taking fish; and the lake is of some
value as a fishing preserve.'"
This additional findIng was made at the request of the
eppellee:
I! I find that in Its ordinary condition
Green-Lake having a depth of 4 feet over the greeter
part of thi lake, is susceptible of use for fish-
ing, pleasure and commercial boats, providing the
boats are of light draft."
The appellate court in affirming the judgment of the
trial court used the following language:
"Under the Law es it now exists in this
State, Green Lake cannot be sold (R. 3. 3980)
but is under the jurisdiction of the Game, Fish
& Oyster Commissioner. (Art. 4021b)."
WhFle it is true the appellate court said: "The issue
in this case is not whether the State could grant title to
the land in the bed of a natural, permanent, fresh water lake,
but has it done so to Green Lake?" Nevertheless the findings
of fact filed by the trial court and adopted by the appellate
court were based on controverted issues materiel to the decision.
It wes determined that Green Lake was e natural, permanent,
fresh water lake, end because of this fact, and the finding of
the appellate court that it was e navigable body of water, the
Court of Civil Appeals held that the cells in the respective
surveys indicated an intention to exclude the lake.
We consider es material the holding quoted above, that
under the law then In existence Green Lake could not be sold.
At least, it was a judicial interpretation of the existing
statutes by en appellate court whose decision on questions of
boundary wes final. Article 1591, R. 3. 1911.
Hon. Wm. J. Tucker - page 4 0 -5915
It is well settled that the Sovereign has the power to
grant or convey the beds of public waters. It fs equally well
settled that the Sovereign may reserve such property from sale
and dedicate its US8 to all Of the people. When there has
been such a reservation by the Sovereign It may not be disre-
garded by its agents, and en attempted sale by the Land Com-
missioner under such circumstances, and without express-au-'
thorlxatldn, is void. Roberts v.'T8rr811;101 Tex. 577, 110
3. W. 733; DeMerrit v. Roblson, 102 Tex. 358, 116 3. W. 796.
~The questlon then is, dld the statutes referred to In
the Welder opinion reserve Green Lake from sale?
In 1905, the 29th Legislature enacted Chapter 90, a
portion of which was codifLed inthe Revised Statutes of 1911,
as Article 3980. It is es follows:
"All the public rivers, bayous, lagoons, lakes,
bays and Inlets in this State . . . shall be, continue
and remain the property of the State of Texas, except
so far as their use shell be permitted by the laws of
this State. 30 far es this use shall relate to the
fish and oyster industry, the State Game, Fish & Oyster
Commissioner shall have jurisdiction and control there-
of according to the authority Vested In him by the fish
and oyster laws of this State. (Acts of 1905, p. 129)."
It is our opinfon that this Article expressed a defi-
nite policy w‘Lthrespect to reserving lakes from sale. In 1911
the 32nd Legislature enacted Chapter 68, using more definite
language Ln this respect. Section 2 of Chapter 68 is as follows:
'Sec. 2. Such of the fresh water lakes
wlthin this State as may not be embraced in
any survey of private land shell not be so:d,
but shall remain open to the public; . . .
It LS our opinion that the Acts quoted from above ex-
pressly reserved Green Lake from sale. These Acts were in
force and effect on July 13, 1918, when this property was a-
warded to Elmer Yates.
The s8COnd point raised Is whether or not the sale of
Green Lake, though It may have been made contrary to lawlrwas
validated by~~thesubsequent enactment of the "Small Bill ,
Article 5414a.
Sections lmd 2 of Article 5414a are as follows~
.
Hon. Wm. J. Tucker - page 5 0 -5915
“Sec. 1. All patents to and awards of lends
lying across or partly across water courses or
navigable streams and all patents and awards cover-
ing or including the beds OP abandoned beds of
water courses or navigable streams or parts thereof,
which patents or awards have been issued and out-
standing for a period of ten years from the date
thereof and have not been cancelled or forfeited,
are hereby confirmed and validated.
'Sec. ~2. The State of Texas hereby relin-
quishes, quitclaims end grants to patentees and
S*'fardeesand their assignees all of the lends,
?nd~"mineralstherein contained~,lying ecross, or
:mrtlg across water courses or navigable streams,
which lands ere included in surveys heretofore made,
and to which lands patents or awards have been
issued and outstanding for e period of ten gears
from the date thereof and have not been cancelled
or forfeited, . . .'I
It is to be noted that this Act has reference to II...
....lands lying across or pertly across water courses or nav-
igablo streams end all patents and awards covering or includ-
ing the beds or abandoned beds of water courses or navigable
streams or parts thereof. . e .I' The cases in which this Act
has been involved have had to do with the effect of the Act
on survt?>-s
which crossed or pertly crossed water courses or
nevigoble streams. State v. Sradford, 121 Tex. 516, 50 3. W.
2 1065; Reard v. Town of Refugio, 129 Tex. 349, 103 3. W.
II 728.
2
The Act above referred to uses the terms water COUrS8
and navigable stream but no reference is made to a lake. It
is generally recognized by the authorities that the terms
water course, navigable stream and lake have separate and dis-
tinct legal meanings. This is particularly true with reference
to the legal distinction between e water course, navigable
stream and a lake. A water course or navigable stream are so
different in their physical chmacteristics from a lake, that
the naming of the one, and omission of the other, in acts re-
lating to the disposition of publ,icland, will exclude the
other. Hoef v. Short, 114 Tex. 501, 273 S.W. 785, 40 A.L.R.
733; Jones v. Lee, 43 N. W. 855; Nee Pee Neuk Club v. Wilson,
96 Wis. 290, 71 N. W. 661; Restatement of the Law; Torts Sec.
841-843; DeMerrit v. Robison, 102 Tex. 358, 116 3. W. 796.
The property under discussion here is a natural, per-
manent, fresh water lake. It was held in Welder v. State,
supra, that the lines of surveys adjoining the lake did not
.’ .
Hon. Wm. J. Tucker - page 6 o-5915
CPOSS OP partly cross the lake. The Elmer Yates Survey No. 1,
on which the application and award of 1918 was based, encom-
passed the lake and did not CPOSS It. If, since these
original surveys were made, the lake through natural processes
of erosion has extended over the lines of these surveys the
new lands thereby covered by the public waters of the lake has
become State property. State v. Maufrals, Court of Civil Ap-
peals opinion, 175 S. W. (2) 739, Supreme~~~Court
opinion hand-
ed down on April 4, 1944, Motion for Rehearing overruled
April 24, 1944; Manry v. Robison, 122 Tex. 213, 56 s. W. (2)
4,38;Diversion Lake Club v. Heath, 126 Tex. 213, 56 S. W. (2)
441. The "Small Bill" would have no application to this
condition since it relates solely to survey which crossed
water courses or navigable streams at the time the surveys
were made, and not to water courses or public waters which
have since the date of the orlginal survey flowed over or
across the lines of surveys. Maufrais v. State, supra.
In our opinion the "Small.Bill" can have no possible
application to the facts in this case.
The third point material in this discussion, and also
raised in the brief, is whether or not subsection 4 of Article
5329 would be effective to bar recovery by the State in the
event of suit.
The relevant part of Article 5329 is as follows:
"No sale made without condition of settle-
ment shall be questioned by the State or any
person after one year from the date of sale,"
In our discussion under the first point in this opinion,
we held that the sale of Green Lake was not authorized by law
and that this property was express1.yreserved from sale. Under
our construction of the Acts referred to herein, and as inter-
preted in the Welder ease, we think the Supreme Court in the
case of Callahan v. Giles, 137 Tex. 571, 576, :55 S.W. (2) 793,
states the rule of law that determines the effect of the one
year statute es applied to the facts in this instance, In that
case the Court held:
"We do hold, however, that all sales of
public!school land must be authorized by law.
As to any ssle of public school land neither
authorized by lew nor made under co'lorof law,
the one year statute of limitations above cited
would not apply."
Summarizing the questions discussed herein, it is our
Hon. Wm. J. Tucker - page 7 o-5915
opinion that Green Lake at the time of the award in 1918 was
reserved from sale; that the "Small Bill" Is wholly inappli-
cable to the facts presented here; that the one year statute
of limitations will not operate to defeat recovery of this
property by the State.
We accordingly advise you that it is the opinion of -.
this department that the Act of the Commissioner of the General
Land Office in awarding Green Lake to Elmer Yates in 1918 is
void, and of no force or legal effect.
Yours very truly
ATTORNEY GENERAL OF TEXAS
By s/Jack W. Rowland
Jack W. Rowland
Assistant
JWR:bt:wc
APPROVED SEP 21, 1944
s/Grover Sellers
ATTORNEY GENERAL OF TEXAS
Approved Opinion Committee By s/BWB Chafrman