TEEA~TORNEYGENEICAL

                                   OF-XAS



      WI&   WILSON
A--           GENERAI.
                                  April 6, 1961


  Honorable Jerry Sadler                    Opinion No. WW-1034
  Commissioner
  General Land Office                       Re:   Authority of Commissioner of
  Austin, Texas                                   the General Land Office to
                                                  issue patent on a fractional
                                                  portion of a section of land,
                                                  which portion was awarded to
                                                  the purchaser in 1909, with-
                                                  out excluding from such
                                                  patent, the bed of a river
                                                  flowing through such land.
  Dear Mr. Sadler:
            From your opinion request, as well as from a memorandum
  brief furnished our respective offices by interested counsel, we
  are presented with the following facts:
            A section of land was surveyed for the State by a railroad
  company, the latter bein awarded the adjoining section under the
  Act of January 30, 1854 73 Gam. 1455).  Field notes of the State sec-
  tion, being Section No. 400, showing a tract 1900 varas square, were
  filed in the General Land Office. The State thereafter sold 400
  acres to various parties, leaving unsold the NW* and N* of the SE*
  of said Section 400.
            Sec. 6e of the Act of May 16, 190'7(13 Gam. 490), a State
  Land Sales Act, provided that "all surveys and unsold portions of
  surveys shall be sold as a whole." Accordingly, in 1909, the remaln-
  der of Section 400 was sold by the State, being classified as
  "watered grazing" land. The application to purchase recited the
  number of acres at 240 and the price as $1.00 per acre. A down pay-
  ment of $6.00 was made and the purchaser executed his obligation to
  pay the deferred balance of the purchase price in the sum of $234.00
  with 5% interest. The then Land Commissioner endorsed the applica-
  tion "Awarded T-3-09" and signed the endorsement officially. The
  Commissioner further signed the following notice of award:
                    "I have this day accepted said appli-
               cation and do hereby award to the applicant
               the following land at the price shown thereon,
               to-wit: NW* and N* of SE*, Section 400. . e
               240 acres."
Honorable Jerry Sadler, page 2 (WW-1034)


          No new field notes were filed at the time of the award
covering the fractional portion of the survey.
          A short time ago, the present owner of the award completed
payment of the purchase price and requested issuance of a patent by
your office. A ground survey was made by a licensed State land
surveyor and his field notes have been recently tendered to you,
reflecting that the Pease River, which you state is a navigable
stream, runs through the said land.
          You request our opinion as to whether you have the autho-
rity to Issue a patent covering the said fractional portion of said
section without excluding said river bed.
          The law has been, at least since 1837, that surveyors in
running land lines were not to cross navigable streams. Art. 5302,
R.S. In the statute cited, such streams were designated as having
"an average width of 30 feet from the mouth up." The purpose of the
statute, of course, was to give as many land owners as possible
frontage on such streams. Inevitably some surveyors, through errors
of judgment or otherwise, actually laid out surveys including a navi-
gable stream within their boundaries, in violation of said statute.
Nevertheless, title to the beds of such streams remained in the
State. State v. Bradford, 121 Tex. 515, 50 S.W.2d 1065, 1069 (1932).
(As to title to b eds of streams in civil law grants, see McCurdy v.
Morgan, 265 S.W.2d 269 (1954) error ref.)
          Article 5414a, popularly known as the Small Bill, enacted
in 1929, undertook to validate uncancelled patents and awards, ten
years old or older, to lands containing water courses or navigable
streams within their boundaries. Further, said Act relinquished to
such patentees and awardees and their assignees the beds of such
streams, provided that such relinquishment or quitclaim should not
cause the survey to exceed the number of acres included in the
original grant.
          From the facts stated, It is clear that the purchaser
actually bought 3/8ths of a section of land, or 240 acres. The
field notes of the whole section, 1900 varas square, as prepared by
the railroad surveyors, were on file at the time of the sale of the
240 acres. It is well settled that a description of a definite
fractional portion of a rectangular land survey, such as a definite
quarter or half thereof, is legally sufficient. 14B Tex.Jur. 670,
Deeds, Sec. 209, and authorities there cited. It was not necessary
for new field notes of the fractional portion of the section to be
filed in order to make the award binding on the State.
Honorable Jerry Sadler, page 3 (ww-1034)


        .. The Small Bill makes its relinquishment to "patentees and
awardees". If the Leglslature had intended that only a holder of a
patent would receive the benefits of the Act, it would have been un-
necessary to use the word "awardee". The award is made when the
purchase is made. The patent is not issued until payment is made in
full, which is often many years after the award. The Supreme Court
In State v. Bradford, supra, Indicated that holders of unpatented
awards were also covered by the statute when it stated at page 1072:
               "It is therefore shown that the Small
          Bill expressly purports to be retrospective
          and to validate the titles to lands whose
          surveys have heretofore been made across
          streams now claimed to be navigable, and
          which had heretofore been awarded or
          patented." (Emphasis added)       -
          Indeed there would appear to be no valid reason why the
Legislature would grant a river bed to a patent holder and withhold
same from an awardee who had exercised acts of ownership in his
lands for over ten years, but who happened to owe a few dollars on
the purchase price of same, or from an awardee who had paid in full
for his land but had never taken the trouble to get his patent. The
fact that, throughout the Act, the Legislature used the language
"patentees and awardees" makes conclusive, we think, its intention
to grant the benefits of the Act to awardees without patents. The
validating portion of the Act (Section 1) eovers stream beds on
which "patents -or awards" have been issued.
          Against the constitutional attack that this was "give away"
legislation, the Court in the Bradford case said at page 1071:
               ,I
                . 0 . There is no contention that the
          surveys contain an excess acreage and that
          the patentees and awardees are receiving more
          than their title papers convey. Whatever
          consideration the state asked for the land
          under the law has been paid or agreed to be
          paid by the patentees and awardees. This
          record shows that the state acted in good
          faith in issuing these patents and awards,
          and that they were accepted in good faith by
          the purchasers. Whatever amount of land
          embraced within the patents and awards lying
          in the river bed has been paid for or agreed
          to be paid for by the owners thereof. The
          state for years has received and held the
          consideration paid for the land, and, if it
          is to be retained by the state, the patentees
Honorable Jerry Sadler, page 4 (WW-1034)


          and awardees have paid for or agreed to pay
          for land they will not receive. The state
          has a right to exact strict obedience to its
          laws and Constitution, but It also should be
          the policy of the state to deal fairly with
          those who in good faith have accepted its
          offer to purchase public lands upon terms
          fixed by the state. . . ." (Emphasis added)
          This language clearly shows that the Court construed the
Act as covering awardees whose lands were not yet paid for, and who
consequently were not yet entitled to receive patents. Art. 5413,
V.C.S.

          The purchaser of the 3/8ths of Section 400 bought 240
acres. He obligated himself to pay and did pay $240.00 therefor.
Under the reasoning supra, he is entitled to his full complement of
acreage within his 3/8ths section, including the river bed if neces-
sary to complete the required 240 acres.
          However, as we understand the Bradford opinion, it is not
incumbent upon or within the authority of the Land Commissioner to
pass upon the question of navigability of the Pease River as it
courses through Section 400, nor to pass upon what portion, if any,
of the bed of such river passes to the purchaser under the Small
Bill. The river, regardless of the language of the patent, as a
matter of law belongs entirely to the State, or entirely to the pur-
chaser, or in part to each, depending on whatever portion, if any,
is needed to make 240 acres. Heard v. Town of Refuglo, 129 Tex.
349, 103 S.W.2d 728, 734 (1932‘). If the question of ownership
becomes material, that is a legal matter to be determined by the
courts. At page 1070, the Bradford opinion states:
               II
                . . . No power under the law is given
          the surveyor or the land commissioner to
          grant soil under navigable waters, and no
          subsequent recognition or confirmation by
          the land commissioner of a survey made to
          pass soil under such waters will be presumed.
          . . .
                "We find nothing in any of the matters
          relied upon which would take the question of
          the navigability or nonnavigability of this
          stream out of the rule stated in article
          5302.   This is an important and valuable
          right. The public policy of this state
          with respect to navigable streams long has
          been established and enforced, and it is
          not a question left to the discretion and
Honorable Jerry Sadler, page 5 (W-1034)


          judgment of ministerial officers. Under
          the law, those officers were and are not
          clothed with the power to settle questions
          of navigability of streams, but, in view
          of the~very nature and importance of the
          matter, for obvious reasons, it Is a
          question for judicial determination. . . ."
          (mphasis added)
          The Court may well have had in mind the very heavy burden
which would have been imposed upon the Land Commissioner, with his
limited staff, in determining the many and complex problems involved
in passing upon such matters and mercifully excused him from the
task. See, for example, Morgan v. McCurdy, supra; Diversion Lake
Club v. Heath, 126 Tex. 129 8b S.W.2d 441 (19%); Mot1 v. ;~y;;~&l,';,
Tex. 82 2tibS.W. 458 (1926j. The Gradient Boundary y A.
30 Tex.'Law Rev. 305. The recent requirement by the Commissioner
that a ground survey of the 3/8ths section be made and that detailed
field notes be filed is a matter of mechanics in connection with ob-
taining a patent. It does not alter the fact that the award in
question for 3/8ths of Section 400 was validated by the Small Bill;
and as soon as all requirements have been met, a patent should issue
therefor, without excluding the river.

                             SUMMARY
               The Commissioner of the General Land
          Office should issue a patent to a fractional
          part of a section of land,whichfractional
          part was awarded in 1909, without excluding
          the bed of the Pease River which passes through
          such land.
                               Yours very truly,
                               WILL WILSON
                               Attorney General of Texas




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                                           -.




Honorable Jerry Sadler, page 6 (WW-1034)


APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
W. Ray Scruggs
Robert T. Lewis
Dudley McCalla
Sam Wilson
REVIEWED FOR THE ATTORNEY GENERAL
By: Morgan Nesbitt