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HomeNL-2018-06 River Rights 1

My Rights... Their Rights... Who's Right?
Reprinted from Feb. - Mar. 1989
by Leonard Hulsebosch


The newsletter section of this web site contains 40 years of Houston Canoe Club newsletters. Amidst those many publications are buried a lot of gems of information and wisdom, that are still just as valid today as when they first appeared. The following article from 30-years ago is one of those gems.

This was originally a six-part article, but instead of making everyone wait six months to read it all, I'm going to combine two parts per month, so that you'll get it over three months instead.  Or if you're in a hurry, you can hunt them down yourself in the 1989 newsletters.

Part I of VI

     Texas has more than 80,000 miles of waterways. She also has 184 lakes and reservoirs with almost one million acres of surface water.* The variety of Texas waterways and reservoirs is probably greater than any other state.

East Texas rivers with tropical jungle-like climate, pine covered banks and lazy currents, often provide a serene float trip.
Hill Country rivers on the other hand, have a steeper gradient, cutting through rocky terrain and often have stretches of whitewater. These waterways offer a more exciting type of float trip.
West Texas rivers traversing arid country with high bluffs and steep, rocky canyons, offer the boater a "wilderness" experience.

     Although recreation is a non-consumptive use of water, the magnitude of recreational use of the state's rivers and reservoirs is an indicator of the value of these recreational waters to Texans. In 1980, not counting any river usage, nearly 60 million people visited the 24 Texas reservoirs maintained by the U.S. Corps of Engineers.Furthermore, the ever-increasing recreational use of Texas waters has resulted in increasing conflicts between the public recreational user and the private riparian landowner.

     In Texas, 98 percent of the land bordering Texas rivers is in private ownership.* Most of the navigable rivers are public property, with the state owning the riverbed, but the shorelines of these rivers are usually privately owned. The conflict between public use of the rivers and private property rights on the river banks results in "confrontation" and often in prosecution for "criminal trespass". Landowners along the rivers must endure loss of privacy, litter, vandalism and loss of solitude as ever increasing numbers of Texans use rivers for recreation. Without a doubt, the unsettled, complex and ambiguous legal picture of public access to, and use of rivers and riverbanks leads to many conflicts between private riparian landowners and the recreating public. In subsequent articles, we will examine this problem in great detail in an attempt to educate the boating public of each parties' "rights", both legal and moral.

* Texas Water Resources Institute, TAMU, College Station, Texas 77843

Part II of VI

No where in the Texas Water Code is there statutory recognition of the public access rights to state inland waters for recreation purposes. Except for a provision that states water may be appropriated, stored, or diverted for recreation, there is no mention of the public right to use the state's rivers for recreation.

This is in sharp contrast to the statutory recognition extended to coastal beaches in "The Texas Open Beaches Act". Be made aware of the fact that the "Open Beaches Act" applies only to those beaches directly bordering on the open waters of the Gulf of Mexico. The Act does not apply to (1) beaches on the landward side of islands and bays, {2) remote beaches on islands not accessible by public ferry, (3) beaches over which predescriptive rights have been established. The "Act" grants to the public the right of ingress and egress over all Gulf-side beaches below the vegetation line. Theoretically, a person could travel the entire Texas Gulf coastline below the vegetation line and not trespass on private property. But if one crosses upland private property to reach a beach covered by this Act, he is trespassing and is subject to prosecution. However, once a user obtains lawful access to open beach areas, he may travel freely, without restriction, up and down the beach below the vegetation line.

In the case of inland waters, however, references must be made to numerous court cases dealing with different aspects of river use to discern the public's right to travel and use the waters, banks, and shores of streams and rivers. From all of the varied cases, it is possible to "patchwork" some general rules regarding the public's right to travel and use the "navigable" rivers of Texas; the public right of access to Texas rivers; and the public right to use riverbanks. We'll discuss each of these areas in detail in three subsequent articles.

To jump to parts III and IV, click here.

The author, Leonard Hulsebosch