Case Information

*1 /l (b

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, lhere is excess in each survey, but neither V. A. C. 5, survey contains sufficient acreage of a portion the awardees are entitled to of the river bed, therefore, 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 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 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 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 granted to the town, unless the tract granted, 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 of land for the Town of Refugio *3 Hon. Basoom Giles, page 3

In 1834, and the cause will be remanded to the distriot oourt for asoertalnment of that faot.

If is found that the tract surveyed for the it town in 1834 oontains, the 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 eluding is found to contain, ia-

the bed of the river, more than of land, judgment will be rendered dis- missing 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 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,

of the river bed, less than four of land, Judgment will be rendered. under nrober pleadim Eartitionina

the entire river bed within the said’ i tract 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 ,river bed , , . between the State of Texas and the the entire it intended that the river bed should be Town of Refugio’, separate& and divided into parcels, and that eabh should be *4 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 (signed) BY Those B. Duasn, Jr Assistant TBD:fo: Jm O.K. C.C.R.

APPROVED NOV. 8, 1943

(signed) Grover Sellers

FIRST ASSISTANT

ATTORNEY GENERAL

i.

APPROVED Opinion Committee BY BWB Chairman