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Show 122 THE RIPARIAN DOCTRINE (3) Fishing and propagation of fish. Fishing as a recognized riparian use appears under several of the foregoing subtitles. Following are some cases dealing with riparian and public rights to fish in public or navigable watercourses. The public shares with the owner of riparian land the right to fish in the public water of Texas. This right of the public does not include a right to cross or trespass on privately owned land in order to reach the water. However, in Diversion Lake Club v. Heath, the Texas Supreme Court held that members of the public who had lawful access to the waters of a lake (created by a dam across a navigable river) from a bridge on a public road had the right to fish in the waters not only above what was the State-owned bed of the river, but also above parts of the lakebed that were privately owned.636 The Court indicated that by voluntarily damming the navigable river and flooding adjoining lands, the public had been afforded a new additional bed for the public waters and that this artificial change in the river and its bed did not take away the right of the public to use the waters for fishing. Shortly thereafter, a Texas court of civil appeals said: It may be conceded as a general proposition, as contended by appellee, that under the common law a riparian landowner whose land abuts on a nonnavigable lake and whose field notes call for the lake as a boundary line impliedly owns the land under the water to the center of the lake and that all riparian owners whose lands abut on such a lake have a right to the joint use of the entire lake for fishing and boating. 26 C.J. 599; Hardin v. Jordan, 140 U.S. 371, 11 S. Ct. 808, 838, 35 L.Ed. 428; Weller v. State (Tex. Civ. App.) 196 S.W. 868, and authorities there cited. But regardless of what may be the rights of the abutting owners under such circumstances, we are of the opinion that such rule has no application to the facts here under consideration. Here the appellee, by specific grant from the state, owned the land under a definite and specific portion of the lake, and we think it a sound proposition that an abutting landowner whose field notes cross a nonnavigable lake and who, by virtue thereof, holds title to a specific portion of the bed of the lake, has a right to control that part of the surface of the lake above his land, including the right to fish in or boat upon the water, and that any use or interference therewith by another constitutes an infringement on his rights as such owner. This is particularly true where, as in this case, the land lines are capable of being marked. Our holding in this respect is not at variance with that of the 245 N.W. 390 (1932); swimming, Great Am. Dev. Co. v. Smith, 303 S.W. (2d) 861, 864 (Tex. Civ. App. 1957); boating, swimming, fishing, Snively v. Jaber, 48 Wash. (2d) 815, 821-822, 296 Pac. (2d) 1015 (1956); Back v. Sarich, 74 Wash. (2d) 575,445 Pac. (2d) 648,651 (1968). 6MDiversion Lake Club v. Heath, 126 Tex. 129, 132-140, 86 S.W. (2d) 441 (1935). |