Private Uses, Obstructions, Bridges and Dams
Since the days of the civil law of Spain and Mexico, obstructions of navigable streams have been forbidden. Nowadays the Texas Penal Code, the Texas Water Code, and the Texas Parks and Wildlife Code contain prohibitions against obstructing navigable streams, and the Texas Natural Resources Code forbids unauthorized private structures. State officials may take actions to remove them. An obstruction may also be unlawful as a purpresture (a legal term for an encroachment upon public rights and easements or the appropriation to private use of that which belongs to the public). Likewise, an obstruction may be subject to removal as a public nuisance.
State laws do allow state officials to permit, under certain circumstances, private uses and bridges and dams. A permit is generally required from the Parks and Wildlife Commission for any disturbance or taking of marl, sand, gravel, shell, or mudshell. The Commissioner of the General Land Office has some authority to grant easements for rights of way across navigable or state-owned stream beds for such purposes as powerlines, pipelines, and roads. A permit from the Texas Natural Resource Conservation Commission is required before anyone may build a dam or otherwise store, take, or divert state water from a navigable stream. Even on a non navigable stream, a permit is required for a dam impounding more than 200 acre feet of water.
Civil Law from Title 28 of third Partida
Law 8. That No One has a Right to Build a Mill or Other Edifice on a River, by Which the Navigation of Vessels may be Obstructed. No man has a right to dig a new canal, construct a new mill, house, tower, cabin, or any other building whatever, in rivers which are navigated by vessels, nor upon their banks, by which the common use of them may be obstructed. And if he does, whether the canal or edifice be newly or anciently made, if it interfere with such common use, it ought to be destroyed. For it is not just that the common good of all men generally should be sacrificed to the interest of some persons only.
Water Code§ 11.096. Obstruction of Navigable Streams.
No person may obstruct the navigation of any stream which can be navigated by steamboats, keelboats, or flatboats by cutting and felling trees or by building on or across the stream any dike, milldam, bridge, or other obstruction.
Penal Code § 42.03. Obstructing Highway or Other Passageway.
(a) A person commits an offense if, without legal privilege or authority, he intentionally, knowingly, or recklessly ... obstructs a highway, street, sidewalk, railway, waterway, elevator, aisle, hallway, entrance, or exit to which the public or a substantial group of the public has access, or any other place used for the passage of persons, vehicles, or conveyances, regardless of the means of creating the obstruction and whether the obstruction arises from his acts alone or from his acts and the acts of others ... .
(b) For the purposes of this section, “obstruct” means to render impassable or to render passage unreasonably inconvenient or hazardous.
(c) An offense under this section is a Class B misdemeanor.
Parks & Wildlife Code § 90.008. Public Access.
(a) Except as otherwise allowed by law, a person may not restrict, obstruct, interfere with, or limit public recreational use of a protected freshwater area.
(b) This section does not allow the public to gain access to a protected freshwater area without permission of the landowner.
The “protected freshwater area” referred to above is defined in § 90.001 to be the portion of the bed, bottom, or bank of a stream navigable by statute up to the gradient boundary.
Purprestures were discussed in Trice v. State, 712 S.W.2d 842 (Tex.App. Waco 1986, writ ref’d n.r.e.), a case concerning a private bridge across the Brazos River. The court noted (at p. 849) that a purpresture “would be subject to be removed at the instance of the State, whether the same should tend to obstruct navigation or otherwise.” The court, concluding that the private bridge was a purpresture because it encroached upon the state’s land without its permission, ordered that the bridge be removed.
For an early case recognizing a private right to remove, as a nuisance, an unlawful obstruction to navigation, see Selman v. Wolfe, 27 Tex. 68 (1863).
Obstruction By Fencing
Texas Attorney General Opinion S-107 (1953) addressed fishing rights of the public along a stretch of the Trinity River bordered by Mexican land grants made under the civil law in 1835. The summary of the opinion stated:
The public may use the bed and banks of the Trinity River up to the gradient boundary for fishing and may make certain uses of its banks above that line if they are held under civil law grants. The riparian owners cannot prevent the public from gaining access to the river by means of a highway right of way by erection of a fence thereon and cannot prevent the public from going up and down the river in boats and fishing in its waters by the erection of fences across the river.
Authority of Commissioner of General Land Office
Natural Resources Code § 51.291. Grants of Easements.
(a) Except as provided by Subsection (b) of this section, the commissioner [of the General Land Office] may execute grants of easements for rights-of-way across, through, and under unsold public school land, the portion of the Gulf of Mexico within the jurisdiction of the state, the state-owned riverbeds and beds of navigable streams in the public domain, and all islands, saltwater lakes, bays, inlets, marshes, and reefs owned by the state within tidewater limits for:
(1) telephone, telegraph, electric transmission, and powerlines;
(2) oil pipelines, including pipelines connecting the onshore storage facilities of a deepwater port ..., gas pipelines, sulphur pipelines, and other electric lines and pipelines of any nature;
(3) irrigation canals, laterals, and water pipelines;
(4) roads; and
(5) any other purpose the commissioner considers to be in the best interest of the state.
(b) Consent to conduct an activity that would disturb or remove marl, sand, gravel, shell, or mudshell on or near the surface of a state-owned riverbed or the bed of a navigable stream in the public domain may be granted only under Chapter 86, Parks and Wildlife Code.
(c) Money received by the land office for the grants of easements through and under the state owned riverbeds and beds of navigable streams in the public domain shall be deposited in a special fund account in the state treasury to be used for the removal or improvement of unauthorized structures on permanent school fund land. This fund does not impose a duty or obligation on the state to accept ownership of, remove, or improve unauthorized structures on permanent school fund land.
Natural Resources Code § 51.302. Prohibition and Penalty.
(a) No person may construct or maintain any structure or facility on land owned by the state, nor may any person who has not acquired a proper easement, lease, permit, or other instrument from the state as required by this chapter or Chapter 33 of this code and who owns or possesses a facility or structure that is now located on or across state land continue in possession of the land unless he obtains from the commissioner, the board, or the board of regents an easement, lease, permit, or other instrument required by this chapter or Chapter 33 of this code for the land on which the facility or structure is to be constructed or is located.
(b) A person who constructs, maintains, owns, or possesses a facility or structure on state land without a proper easement or lease from the state under this chapter or under Chapter 33 of this code is liable for a penalty of not less than $50 or more than $1,000 a day for each day that a violation occurs. The penalty shall be recovered by the commissioner under Section 51.3021 of this code or in a civil action by the attorney general.
(c) A person who owns, maintains, or possesses an unauthorized facility or structure is, for purposes of this section, the person who last owned, maintained, or possessed the facility or structure.
(d) The commissioner or attorney general may also recover from a person who constructs, maintains, owns, or possesses a facility or structure on state land without the proper easement the costs to the state of removing that facility or structure under Section 51.3021 of this code.
(e) Penalties and costs recovered under this section shall be deposited in the special fund established under Sections 52.297 and 53.155 of this code.
(f) This section is cumulative of all other applicable penalties or enforcement provisions of this code.
(g) In lieu of seeking administrative penalties or removal of the facility or structure under Section 51.3021 of this code, the commissioner may elect to accept ownership of the facility or structure as a fixture and may exercise the state’s rights as owner of the facility or structure by filing notice of such ownership in the real property records of the county in which the facility or structure is located. For facilities or structures located on coastal public land and connected with the ownership of adjacent littoral property, notice of ownership shall be filed in the county in which the adjacent littoral property is located.
Natural Resources Code § 51.3021. Removal of Facility or Structure by Commissioner.
(a) The commissioner may remove and dispose of a facility or structure on land owned by the state if the commissioner finds the facility or structure to be:
(1) without the proper easement or lease from the state under Chapter 33 or 51 of this code; or
(2) an imminent and unreasonable threat to public health, safety, or welfare.
(b)-(g) [procedures for removal].
Authority of Governor
Natural Resources Code § 11.076(a).
If the governor is credibly informed that any portion of the public land or the land which belongs to any of the special funds has been enclosed or that fences have been erected on the land in violation of law, he may direct the attorney general to institute suit in the name of the state for the recovery of the land, damages, and fees.
Authority of Attorney General
Natural Resources Code §11.077. Suit Against Adverse Claimant.
If any public land is held, occupied, or claimed adversely to the state or to any fund of the state by any person or if land is forfeited to the state for any reason, the attorney general shall file suit for the land, for rent on the land, and to recover damages to the land.
Parks & Wildlife Code § 86.001. Management and Protection.
The [Parks and Wildlife] commission shall manage, control, and protect marl and sand of commercial value and all gravel, shell, and mudshell located within the tidewater limits of the state, and on islands within those limits, and within the freshwater areas of the state not embraced by a survey of private land, and on islands within those areas.
Parks & Wildlife Code § 86.002(a).
No person may disturb or take marl, sand, gravel, shell, or mudshell under the management and protection of the commission or operate in or disturb any oyster bed or fishing water for any purpose other than that necessary or incidental to navigation or dredging under state or federal authority without first having acquired from the commission a permit authorizing the activity.
Trice v. State, 712 S.W.2d 842 (Tex.App. Waco 1986, writ ref’d n.r.e.) discussed who was allowed to bridge Texas streams under the laws then in effect. The court noted (at p. 847):
The State, through legislative action, has also authorized certain entities to erect bridges over the navigable waters within its boundaries. [citing statutes pertaining to counties, municipalities, railroads, and toll road corporations] However, except for its tidal waters, the State has not authorized an individual to construct a bridge over its navigable waters. Furthermore, the State has not created an agency or designated any public official to regulate bridge construction over its navigable waters.
Under a change in law in 1993, the Commissioner of the General Land Office was granted limited permitting power to allow private road crossings over public streams. See Natural Resources Code § 51.291 (quoted in section on OBSTRUCTIONS)
Permitting of Dams by the Texas Natural Resource Conservation Commission
Water Code § 11.121. Permit Required.
Except as provided in Sections 11.142, 11.1421, and 11.1422 of this code, no person may appropriate any state water or begin construction of any work designed for the storage, taking, or diversion of water without first obtaining a permit from the commission to make the appropriation.
Water Code § 11.142. Permit Exemptions.
(a) Without obtaining a permit, a person may construct on the person’s own property a dam or reservoir with normal storage of not more than 200 acre feet of water for domestic and livestock purposes. A person who temporarily stores more than 200 acre-feet of water in a dam or reservoir described by this subsection is not required to obtain a permit for the dam or reservoir if the person can demonstrate that the person has not stored in the dam or reservoir more than 200 acre-feet of water on average in any 12-month period. This exemption does not apply to a commercial operation.
[text of subsection (b) as added by HB 247, Chapter 1427, Acts of the 77th Legislature, 2001:]
(b) Without obtaining a permit, a person may construct on the person’s property in an unincorporated area a dam or reservoir with normal storage of not more that 200 acre-feet of water for commercial or noncommercial wildlife management, including fishing but not including fish farming.
[text of subsection (b) as added by SB 2, Chapter 966, Acts of the 77th Legislature, 2001:]
(b) Without obtaining a permit, a person may construct on the person’s property a dam or reservoir with normal storage of not more that 200 acre-feet of water for fish and wildlife purposes if the property on which the dam or reservoir will be constructed is qualified open-space land, as defined by Section 23.51, Tax Code. This exemption does not apply to a commercial operation.
(c) Without obtaining a permit, a person who is drilling and producing petroleum and conducting operations associated with drilling and producing petroleum may take for those purposes state water from the Gulf of Mexico and adjacent bays and arms of the Gulf of Mexico in an amount not to exceed one acre foot during each 24 hour period.
(d) Without obtaining a permit, a person may construct or maintain a reservoir for the sole purpose of sediment control as part of a surface coal mining operation under the Texas Surface Coal Mining and Reclamation Act (Article 5920 11, Vernon’s Texas Civil Statutes).
Water Code § 11.1421. Permit Exemption for Mariculture Activities [Using Brackish or Marine Water].
Water Code § 11.1422. Permit Exemption for Historic Cemeteries.