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Show 110 NAVIGABLE WATERS In the Rio Grande Dam case, the Supreme Court pointed out that pursuant to the statute of 1890, the creation of any such obstruction may be enjoined by proper proceedings in equity under the direction of the Attorney General of the United States. It then "becomes a question of fact whether the act sought to be enjoined is one which fairly and directly tends to obstruct (that is, interfere with or diminish) the navigable capacity of a stream." In the instant case, the question was whether the appropriation of the upper waters of a navigable river "substantially interferes with the navigable capacity within the limits where navigation is a recognized fact."42 Texas Statutory Navigable Streams A statute originally enacted by the Republic of Texas-and still extant- which relates to the surveying for individuals of lands lying on navigable watercourses, provides that for the purpose of the statute all streams shall be considered navigable as far up from their mouths as they retain an average width of 30 feet, and that no such stream shall be crossed by the lines of a survey.43 The apparent object of this early act was not to regulate navigation, but to prevent persons locating on the public domain from monopolizing the waters of the State.44 However, the inevitable result of the statute is that streams of the stated width were made public and title to their beds was reserved to the Republic and to the succeeding State, so that in these respects such streams, whether or not navigable in fact, have the same legal quality and character as streams actually navigable.45 Unquestionably, when the evidence brings a stream within the statute, the statute is controlling.46 However, some interpretations of the applicability of the statute have been made by the courts.47 42174 U.S. 690, 709 (1899). 43Tex. Rev. Civ. Stat. Ann. art. 5302 (1962), first enacted, Tex. Acts 1837, p. 63; 1 Sayles' Tex. Early Laws, pp. 266, 271. In the "Small Bill," enacted in 1929, the State's title to beds or abandoned beds of watercourses of navigable streams was relinquished to certain grantees whose grants actually crossed them: Tex. Rev. Civ. Stat. Ann. art. 5414a (1962). **Austin v.Hall, 93 Tex. 591, 596-598, 57 S. W. 563 (1900). 45Diversion Lake Club v. Heath, 126 Tex. 129, 137-140, 86 S. W. (2d) 441 (1935). 46Burr's Ferry, B. & C. Ry. v. Allen, 164 S. W. 878, 880 (Tex. Civ. App. 1914, error refused). 47 It is common knowledge that most streams in the State only 30 feet wide-and all of such streams in the arid sections-are not navigable streams in the sense of the common law; the statutory designation of navigable streams does not mean streams so designated at common law: Barrett v. Metcalfe, 12 Tex. Civ. App. 247, 255, 33 S. W. 758 (1896, error refused). A Federal court indicated its disbelief that the statute was intended to apply to surveys of lands located on tidewaters which, while navigable waters, are not streams at all in the usual meaning of the term: Texas v. Chuoke, 154 Fed. (2d) 1, 3 (5th Cir. 1946). The statute applies to streams only, not to lakes: Taylor Fishing Club v. Hammett, 88 S. W. (2d) 127, 129 (Tex. Civ. App. 1935, error dismissed). The statute is not applicable to ordinarily dry gullies, draws, and branches |
