In Texas a stream is navigable if it is either “navigable in fact” or “navigable by statute.” These tests are explained below. Simply put, a non navigable stream is a stream which is neither navigable in fact nor navigable by statute. Along a navigable stream, the public may boat, fish, swim, camp, and in general carry on any legal activity. Public use must be confined to the stream bed and, to a limited extent, the banks.
Along a non navigable stream, the public generally has no right of use, and a private landowner may forbid public entry upon or along the waterway. However, there are some instances in which a perennial stream, even though it is not navigable in fact or navigable by statute, is nevertheless open to public use because the land bordering it was granted (prior to December 14, 1837) under the civil law, which reserved ownership of beds of perennial streams.
A number of criteria have been suggested for whether a stream is navigable in fact. Some relate to passage by boats, others to the ability to float logs, and still others to its usefulness in commerce. Various courts, both state and federal, have recognized different tests. Texas courts have acknowledged a wide range of uses in support of navigability in fact.
Tests for Navigability in Fact
Texas courts have sometimes found navigability as a result of capacity for commercial use. See, e.g., Jones v. Johnson, 25 S.W. 650, 651 (Tex.Civ.App. 1894, writ ref’d) and Orange Lumber Co. v. Thompson, 126 S.W. 604, 606 (Tex.Civ.App. 1910, no writ). The Texas Supreme Court in Selman v. Wolfe, 27 Tex. 68, 71 (1863) (quoted on p. 1) has recognized a broad concept for navigable streams that of “common highways of trade and travel.”
The case of Welder v. State, 196 S.W. 868, 873 (Tex.Civ.App. Austin 1917, writ ref’d) has discussed the concept underlying the “navigable in fact” tests:
Behind all definitions of navigable waters lies the idea of public utility. Waters, which in their natural state are useful to the public for a considerable portion of the year are navigable. Boats are mentioned in the decisions because boats are the usual means by which waters are utilized by the public, and commerce is usually mentioned because carrying produce and merchandise is the usual public demand for such waters. But floating logs has frequently been held to be navigation, and hunting and fishing, and even pleasure boating, ha[ve] been held to be proper public uses.
See also 73 Tex.Jur.3d Water § 208-210 (2003).
The federal power over navigable streams derives from the federal government’s powers over interstate commerce set out in the U.S. Constitution. Thus, the federal test of navigability in fact relates to use as highways for commerce. States are free to adopt, and most have adopted, broader concepts of navigability for the purposes of state regulation. (Of course, state control of waters is subject to federal jurisdiction for interstate commerce and navigation.) These matters are beyond the scope of this overview.
Under a law dating from 1837, a stream is navigable so far as it retains an average width of 30 feet from its mouth up. The width measured is the distance between the fast (or firmly fixed) land banks. A stream satisfying the 30 foot rule is sometimes referred to as “statutorily navigable” or “navigable by statute.” Under a court decision, the public has rights along a stream navigable by statute just as if the stream were navigable in fact.
Measurement of Stream Width for Navigability by Statute
The entire bed is to be included in the width, not just the area covered by flowing water. The bed extends all the way between the fast land banks. These are the banks which separate the stream bed from the adjacent upland (whether valley or hill) and confine the waters to a definite channel. Further, stream segments having a width of less than 30 feet do not defeat the stream’s navigability by statute, so long as the stream’s width maintains an average of 30 feet or more.
Original Statutory Provision (effective December 14, 1837)
That all streams of the average width of 30 feet shall be considered navigable streams within the meaning of this act, so far up as they retain that average width, and that they shall not be crossed by the lines of a survey.
1 Sayles’ Early Laws of Texas, p. 271, quoted at 286 S.W. 466.
Natural Resources Code§ 21.001. Definitions.
In this chapter ...
(3) “Navigable stream” means a stream which retains an average width of 30 feet from the mouth up.
Natural Resources Code§ 21.012. Surveys on Navigable Streams.
(a) If the circumstances of the lines previously surveyed under the law will permit, land surveyed for individuals, lying on a navigable stream, shall front one half of the square on the stream with the line running at right angles with the general course of the stream.
(b) A navigable stream may not be crossed by the lines of a survey.
Diversion Lake Club v. Heath, 126 Tex. 129, 86 S.W.2d 441, 445 (1935):
Thus it is apparent that statutory navigable streams in Texas are public streams, and that their beds and waters are owned by the state in trust for the benefit and best interests of all the people, and subject to use by the public for navigation, fishing, and other lawful purposes, as fully and to the same extent that the beds and waters of streams navigable in fact are so owned and so held in trust and subject to such use.
In Motl v. Boyd, 116 Tex. 82, 286 S.W. 458, 467 (1926), the Texas Supreme Court explained what a stream consists of:
A water course, river, or stream consists of a bed, banks, and a stream of water. ... The bed of a stream is that portion of its soil which is alternatively covered and left bare as there may be an increase or diminution in the supply of water, and which is adequate to contain it at its average and mean stage during an entire year, without reference to the extra freshets of the winter or spring or the extreme drouths of the summer or autumn. ... The banks of a stream or river are the water washed and relatively permanent elevations or acclivities at the outer lines of the river bed which separate the bed from the adjacent upland, whether valley or hill, and served to confine the waters within the bed and preserve the course of the river when they rise to the highest point at which they are still confined to a definite channel.
Since the stream is a navigable one, the elevations of land adjacent to its bed, which hold its navigable waters in place, and to which boats might be tied or anchored, and wharves or other instrumentalities of navigation attached, are its banks ... .
The court went on to explain the stream bed measurement:
[T]he bed of the stream defined by the statute is that portion of the terrain between its fast land banks. So when the statute says that the average width shall be 30 feet between the banks, it does not mean the space covered by the water at low tide or flow, but the entire bed of the stream as above defined.
In this case the court held that the creek involved was navigable by statute. It stated, “The bed of the creek has an average width of more than 30 feet, although the waters flow in an ordinary season over less than 30 feet of this width.” The court went on to note:
The fact that at times and places there may be some distance between the bordering banks which limit the survey lines, and the water does not militate against the right of the riparian owner to have access to the water.
Motl v. Boyd, 116 Tex. 82, 286 S.W. 458, 468 (1926).
In a case involving the North and South Forks of the Guadalupe River, a question was raised because the streams were measured to be less than 30 feet wide for short reaches just above their mouths before they became substantially wider farther upstream. The court stated:
Several witnesses testified as to the width of the river and the general import of their testimony is that the width of the river substantially exceeds thirty feet. Appellants’ main complaint is with the method of measurement used. The statute provides no precise method of measurement for determining if a stream maintains an average width of thirty feet from the mouth up. We have found no case which absolutely mandates any certain method be used. We have concluded that the testimony in the record sufficiently supports the trial court’s finding as to navigability.
Adjudication of Upper Guadalupe Segment of Guadalupe River Basin, 625 S.W.2d 353, 362 3 (Tex.Civ.App. San Antonio 1981), aff’d, 642 S.W.2d 438 (1982).
The question of navigability of a stream is ultimately to be decided by the courts. See State v. Bradford, 121 Tex. 515, 50 S.W.2d 1065, 1070 (1932).