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OFFICE OF
THE ATTORNEY GENERAL
AUSTXN. TEXAS
Gerald C. t&M
!2&w~~ Y GENERAL
Hon. Basoom Giles, Commissioner
General Land Office
Austin, Texas
Dear Sir: Opinion No. O-5635
Re: Should the State of Texas
take a separate parcel of
the river bed, or an un-
divided Interest therein,
in the exoess of surveys
crossing navigable streams,
which have been validated
by the %mall Land Billn?
In your letter of September 24, 1943, you-give us
certain facts, which may be summarized as follows:
You have been requested to patent two tracts of
school land, which were surveyed across navigable streams.
Awards were made more than ten years prior to the effective
date of the “Small Land Bill”, Acts of the 41st Legislature,
1929, page 29g, Chapter 138, oodified as Article 54&s,
V. A. C. 5, lhere is excess in each survey, but neither
survey contains sufficient acreage exclusive of a portion
of the river bed, therefore, the awardees are entitled to
enough of the river bed to make up their awarded acreage.
Since the awardees are to get a portion of the
river bed, you request our opinion upon the following:
Should the State of Texas take a separate parcel of the
river bed, or an undivided interest therein?
Hon. Bascom Giles, page 2
You are respectively advised that the State of
Texas should take a separate parcel of the river bed, ana
not an undivided interest in the whole thereof.
The Wnall Land Bill’l, supra, validated all
patents to ana awards of lands lying across or partly aoross
water oourses or navigable streams and all patents and awards
cov$ring and including the beds or abandoned beds of water
oourses or navigable streams or parts thereof, which patents
or awards have been issued and outstanding for a period of ten
years from the date thereof and have not been o8ncelled or
forfeited.
No excess acreage is recognized under this law.
State v. Bradford, 50 S. W. (26) 1055. If the patent or
award is otherwise within the terms and provisions of the
9mall Land Bill”, but contains a number of acres of land in
excess of the amount of laud conveyed to the patentee or
awardee, the.question arises as to how such excess is to be
apportioned.
In the case of Heard, et al. v. Town of Refugio,
103 S, W. (2d) 728, involving four leagues granted by Coahuila
and Texas to the Town of Refuaio. and construing the eSmal1
Land Bill”, supra, the court sali:
” It is apparent that the act gave
the Toin’o; iefugio title to ,that portion of the
bed of Mission river within the bounds of the four
leagues granted to the town, unless the tract granted,
including the river bed area, contains more than
four leagues of land. The seoond seotion of the aot
oontafns a provision that it shall not *relinquish or
quit-claim any number of acres of land in excess,of
the number of acres of land conveyed to said patentees
or awardees in the original patents granted by the
State.’
n. . . 0
“The record oontains no evidence as to the
number of acres within the boundaries of the four
leagues of land surveyed for the Town of Refugio
Hon. Basoom Giles, page 3
In 1834, and the cause will be remanded to the
distriot oourt for asoertalnment of that faot.
If it is found that the tract surveyed for the
town in 1834 oontains, including the river bed,
no more than four leagues of land, judgment will
be rendered ln ravor of the defendant in error
(whether the State of Texas beoomes or does not
become a party to the suit) for the title and
possession of the part of the land described
in its petition whioh Is a portion of the bed
of the Mission river. If the said traot surveyed
for the Town of Refugio is found to contain, ia-
eluding the bed of the river, more than four
leagues of land, judgment will be rendered dis-
missing the cause, unless the State of Texas be-
comes a party to the suit. If the State of Texas
becomes a party to the suit, and it is round that
the said tract surveyed for the town oontains,
exclusive of the river bed, as much as four
leagues of land, judgment will be rendered in
favor of the state ror the title and possession
of the river bed. If the State of Texas becomes
a party to the suit and it is found that the said
tract surveyed for the town oontains, exclusive
of the river bed, less than four leagues of land,
Judgment will be rendered. under nrober pleadim
Eartitionina the entire river bed within the said’ i
tract surveyed for the town in 1834 between the
State of Texas and the Town of Refwio in suoh
manner
number of acres of river bed area suffioient t
. The method of f i
lver bed and the adjoining
lands is stated in Mot1 v. Boyd, 1.16 Tex. 82, 109,
286 5. W. 458, and in Diversion Lake Club v. Heath,
126 Tex, 129, 141, 86 5. W. (2d) 441.” (Emphasis
added 1
We believe that when the oourt said, *partitioning
the entire ,river bed , , . between the State of Texas and the
Town of Refugio’, it intended that the river bed should be
separate& and divided into parcels, and that eabh should be
don. Basoom Oiler, page 4
vestetl with title to a separate and specifio part thereof,
with the exclusive right of possession thereto.
Trusting that the above fully answers your question,
we are
Yours very ‘truly
ATPORNEY GENERAL OF !l!EXAS
BY (signed)
Those B. Duasn, Jr
TBD:fo: Jm Assistant
O.K. C.C.R.
APPROVEDNOV. 8, 1943
(signed) Grover Sellers
FIRST ASSISTANT
ATTORNEY GENERAL
i.
APPROVED
Opinion Committee
BY BWB
Chairman