Diversion Lake Club v. Heath (126 Tex. 129, 1935)

Mr. Judge SMEDLEY

delivered the opinion for the court,

This case presents the interesting and important question: Do the public have the right to fish in a lake created by the lawful construction of a dam across a river not navigable in fact, but declared to be navigable by statute, or does the exclusive right to fish in such lake belong to one who owns both the bed of the lake, except that part of same which was originally the bed of the river, and the land bordering the lake on both sides?

Tn the year 1911 and 1912, as part of an irrigation project and under authority given by the statutes pertaining to the appropriation of water for' irrigation and other purposes, two dams were built across the Medina River and two lakes formed, the upper lake covering 5,800 acres and the lower lake, known as Diversion Lake, covering about 150 acres when full. Prior to the construction of the dam, Medina River, ] which is described as being as old as the watershed and as (. draining- about 700 square miles, was not navigable in fact, but it was, according to the verdict of the jury, which is not questioned here, a navigable stream as defined by Article 5302 of the Revised Civil Statutes of 1925 (the Act of 1837), in that it retained an average width of more than 30 feet from its mouth up to the upper dam. The surveys pursuant to which the land in the vicinity of the two lakes was granted by the State, in accordance with the mandate of the statute, front on the river and do not cross it. Thus the title to the bed of the river was reserved to the State.

Plaintiff in error Diversion Lake Club, a corporation formed about the year 1926, became the owner of two strips of land, each about 1,500 feet in width and 4 miles in length, fronting on what were originally the two banks of the river, and extending from the dam forming Diversion Lake up to the dam forming the main or upper lake, but not including either the bed of the river or a public road which crosses Diversion T