A Tale of Trespassing

Two of the least understood aspects of the Texas outdoors involves navigability and access to Texas streams or rivers, and this lack of understanding has led to numerous disputes over the years between paddlers and landowners, with several of the disputes ending badly for the paddlers.

In Texas more than 95% of the land is privately owned, so access to a navigable stream is severely limited.  Anglers basically have five ways to access a navigable stream: own the adjoining land; know a friend who owns adjoining land (and grants you access); find a private landowner who provides access for a fee; use a federal/state/county/local park; or use a road right-of-way (ROW) easement.

The first four ways are fairly straightforward, but the fifth one isn’t always as clear.  A ROW essentially grants the public the ability to legally “trespass” across private land so long as the public stays within the easements route.  When a ROW crosses a navigable stream the public has the ability to access the stream as long as they stay within the easement.  ROW easement widths vary depending on the class of road, so county road easements are narrower than an interstate.

“A canoeist needs a law book, a copy of the original land grant, a surveyor’s instrument, and five justices from the Texas Supreme Court.” – Amon Burton, Texas Monthly, III, No. 4 (April, 1975)

The law regarding navigability – stated in simple terms – puts forth that while the land alongside navigable streams is privately owned, the stream beds are generally owned by the state and held in trust for the public’s use, but Amon’s words are as true today as they were 40 years ago, because determining whether a stream is navigable or not is still as confusing today as it was then. Prior to Texas independence, land was granted under Spanish Civil Law and then Mexican Civil Law when it gained independence from Spain in 1821.  Under civil law, the sovereign retained the rights to all perennial streams, regardless of navigability.

When Texas gained independence in 1836 they held to civil law, but in December of 1837 they passed the “30 Foot Statute”, referred to today as the “Navigability by Statute.”  In other words,  a stream is considered navigable so far as it retains an average width of 30 feet from its mouth.  This task is not simple as it would take a survey of the stream bed to determine its average width.  If a survey is being conducted of a river then it’s highly likely a suit has been filed and the case is being seen by a court.

In 1840, Texas switched from Mexican Civil Law to English Common Law and with that another way of determining navigability was established.  “Navigability in Fact” is a stream which is determined to be navigable because commerce can happen for considerable portions of the year. This includes passage of boats with goods, floating logs, fishing and pleasure boating.

Between Mexican Civil Law, the passing of the “30 Foot Statue” in 1837, and the switch to English Common Law in 1840 there was some confusion among surveyors regarding property lines and streams, where the acreage of an original land grant included the land which fell in a navigable stream.  In 1929, Texas passed what is commonly referred to as the Small Bill which essentially states that in some situations the landowner gets the oil & gas royalties from under their property’s stream bed (meaning they pay taxes on the stream bed), the state owns the sand and gravel, and the public has the right to recreate (meaning walk, swim, float, fish, etc)  within the stream bed so long as they do not trespass to access the stream.

In the end, the way the laws are written make it difficult at best for determine a stream’s navigability and the public’s right to access the stream.  Under these circumstances, its understandable to see why these confrontations between landowners and anglers continue to occur. Unfortunately, in some cases, the only way to determine navigability is a ruling passed down from the courts.

In a sea of this confusion enter Josh Neumeyer and his fiancé, who had accessed the Sabinal River on foot through what they determined to be a legal access point only to be confronted by one such landowner who accused them of trespassing.  This is the story of that that encounter, as written by Josh:

You’re trespassing on private property.

Those words form a short sentence but carry huge ramifications in the state of Texas.  It’s something every river or creek angler fears they’ll hear, especially those who, like me, like fishing off the beaten path. I’ve always thought that it was not a matter of if, but when, I’d hear the words, but I was still shocked as the words echoed down from the bluff overlooking the Sabinal River. 

I’d visited that river a half dozen times in the last two years, always fishing the same one-mile stretch between Utopia and Vanderpool.  My fiance and I have a tradition to pack a picnic and head for a Hill Country river whenever we didn’t have anything planned for a weekend, so one Saturday in August I suggested heading to my favorite little stretch of the Sabinal for one such trip.We began the day relaxing and wade fishing a county road crossing where I would normally start wading upriver for my solo trips.  It’s a deep, wide pool that offers terrific fishing, swimming and lounging, however, for our picnic we wanted to head upriver to one of my favorite fishing spots, a pretty stretch of the river that’s home to a large spring and huge cypress trees.

We parked along the roadside just before the FM crossing, gathered our things and accessed the river to enjoy chicken salad and crackers.  At this access point there are no posted signs, purple paint (or a fence for that matter), nor are there even signs of cultivation or livestock. Only overgrown vegetation and signs of flooding.  But I knew somebody owned this piece of land, so we made our way to the riverbed via the right of way.  As we reached the spring and our picnic site, a voice from above yelled down upon us.

“Excuse me, you’re trespassing on private property,” a lady called down from the top of the cliff.

“Ma’am, we accessed a navigable river from a right-of-way easement”, I responded.

The lady and I exchanged a few more words up and down the cliff, and my fiancé said she thought the woman was on the phone calling the sheriff.  We left our cell phones in the truck and decided to head back so I could grab my phone and contact a local game warden.  Before I could make the phone call, the landowner had jumped into her vehicle and drove down to my truck quickly.  Her father also made his way down the bluff and hustled past my fiancé to get to me.

This is a moment I’d expected to happen sooner or later and had prepared myself by reading TPWD’s website as well as court cases and other legal documents. I have taken the time to educate myself on my rights to access and recreate within a stream bed as well as the property owner rights along the riverbed.After explaining that we accessed the river through a ROW and were therefore not trespassing, the landowner claimed ownership to the riverbed saying her survey lines crossed and included the riverbed. She also asserted the Sabinal River was no longer a navigable river upstream of the town of Sabinal. 

Then the landowner mentioned that one of her neighbor’s was an attorney (which I confirmed) and another was a local game warden (which I could not confirm); I took it as a form of intimidation and her attempt to validate her claims.  She also said that if we’d canoed in, we’d been OK.  Her father added if we had set foot in the riverbed from a canoe, we would have been trespassing.

I cited the Small Bill, which I asserted still guaranteed our rights to wade, fish, and enjoy the river even if their survey included the riverbed, as long as we accessed the river without trespassing and remained within the riverbed.  The discussion lasted 15 minutes and ended with the landowner giving me her business card and a handshake. I promised to look into the matter more.

The following Sunday I researched the original Texas land survey (OTLS) for that section of the Sabinal. That, coupled with a map of where we had accessed the river, and some other documents seemed to confirm that we were right. On Monday I sent some emails and called the General Land Office (GLO) as well as Texas Parks & Wildlife Department (TPWD), explaining my situation and asking whom I should speak to regarding the matter.

Two weeks later I received an email from the GLO stating in their opinion, with input from an attorney at TPWD, we had been legally recreating in a river which qualifies as a navigable stream by statute, even though the landowner’s property lines crossed and included the riverbed. Again, in the opinion of the GLO, the riverbed we traversed was protected by the Small Bill of 1929 which states that while landowner may own the acreage and mineral rights under the riverbed, but the public still has the right to recreate in them.My fiancé said something about it feeling good to be vindicated, but I had mixed feelings.  Both state agencies agreed with me that the Sabinal, from the Lost Maples SNA down to its confluence with the Frio River, was in fact a navigable stream.  On the other hand, I knew this was only an opinion and there is no certainty we were in a navigable river without having a survey to prove the Sabinal River maintained a 30 foot average at our point of access.

Luckily, in our case, no gun was involved and we were able to hold a cordial conversation, but it was still unnerving. I plan on visiting this section of river again and I’m anxious to see what changes, if any, the landowner will make regarding access to the Sabinal. I forwarded the landowner the email I received from the GLO with a summary of the GLO’s opinion as well as a short message where I promised to continue to be a good steward of the river.  As of this posting, the landowner has not responded.

Postscript: On August 5, 2016, a landowner along the West Sister Creek near Sisterdale, Texas was convicted on three counts of aggravated assault against “trespassing” tubers. The incident occurred the year before when two teenage girls were dropped off by one of the girls’ fathers for a tubing trip down the creek to its confluence with the Guadalupe River. They encountered an irate land owner who claimed the girls were trespassing and fired a warning shot into the ground before escorting the girls off the creek at gun point.

The land owner originally claimed she feared for her life but later changed her story to the gun discharging accidentally when she stumbled. The father showed up, after being called by his daughter, and he too was escorted off at gun point.

The landowner faced 20 years for each count, but the jury recommended 2 years’ probation.  In September, the judge ordered she serve 30 days in jail as a condition of probation because of her lack of remorse during her sentencing.

Lone Star Chronicles – Life, Liberty & the Pursuit of Fish

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  2 comments for “A Tale of Trespassing

  1. Rick Irving
    January 25, 2017 at 7:19 PM

    Great Article!

    • Bert Rodriguez
      January 25, 2017 at 9:13 PM

      Thanks, Rick…

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