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Show 128 NAVIGABLE WATERS The Texas courts have held consistently that in the case of attachment of water rights to a watercourse the navigability or nonnavigability of its waters is not material. In 1896, the old court of civil appeals rejected a claim by one of the parties that there could be no right for purposes of irrigation as an incident to the ownership of land on a navigable stream.130 That riparian rights may attach to navigable waters has been held or recognized in a number of subsequent cases.131 One of the conclusions expressed by the supreme court, although dictum, in Motl v. Boyd was that the creek in litigation was a public navigable stream under the State statute, and that title to its waters was in the State in trust for the public for certain purposes of which navigation was first and use by the riparian owners second.132 On the other hand, the Washington Supreme Court has held that owners of uplands bordering upon navigable waters cannot assert riparian rights for irrigation as against the claims of appropriators.133 LANDS UNDERLYING NAVIGABLE WATERS Original Title Vests in the Sovereign "Dominion over navigable waters and property in the soil under them are so identified with the sovereign power of government that a presumption against their separation from sovereignty must be indulged, in construing either grants by the sovereign of the lands to be held in private ownership or transfer of sovereignty itself."134 Title to lands under navigable waters in the West vested in the United States on the transfer thereto of sovereignty over the several western additions, exclusive of lands previously granted by the previous governments and of lands owned by the Republic of Texas. Texas, which was annexed to the United States as a full-fledged State, retained for the State the lands previously 130Barrett v. Metcalfe, 12 Tex Civ. App. 247, 254, 33 S. W. 758 (1896, error refused). 131 See, for example, Bigham Bros. v. Port Arthur Channel & Dock Co., 100 Tex. 192, 97 S. W. 686 (1906); King v. Schaff, S. W. 1039, 1042 (Tex. Civ. App. 1918); Heard v. State of Texas, 146 Tex. 139, 146, 148, 204 S. W. (2d) 344 (1947). 132Motl v. Boyd, 116 Tex. 82, 111, 286 S. W. 458 (1926). 133State ex rel. Ham, Yearsley & Ryrie v. Superior Court, 70 Wash. 442, 453, 126 Pac. 945 (1912). In the language of the court: "We are of the opinion that common law riparian rights in navigable waters, if it can be said that the common law recognized such rights, have not existed or been recognized in this state since the adoption of our constitution; at least so far as the upland owner having any right to occupy in any way the beds or shore lands of such waters or to take from such waters water for irrigation as against the state, its grantees, or those who have appropriated such water for purposes of irrigation in compliance with the laws of the state." See also Johnson, R. W.,"Riparian and Public Rights to Lakes and Streams," 35 Wash. L. Rev. 580, 601-605 (1960). 134 United States v. Oregon, 295 U. S. 1, 14 (1935). |