-- Last Updated: Apr-22-13 5:53 PM EST --
The preexisting Spanish and Mexican land grants on some property actually make MORE streams publicly accessible than would otherwise be.
The law of Spain and Mexico did not distinguish public and private streams on the basis of navigability. This makes sense, since Spain has only one navigable river, located far in the south, so river navigation rights weren't important. Streams were valued primarily as a source of water for household use and for irrigation, rather than a way to move people and goods. So when the sovereign granted land, perennial streams were retained for public use, regardless of navigability, so as to make as much land as possible capable of settlement. A stream is perennial if it flows most or all of the year. In determining the rights of holders of title under Mexican grants, the laws of Mexico in effect when the grants were made control. So in counties that contain Spanish or Mexican land grants, there are an unknown number of perennial streams which are public streams, even though they may not be navigable.
So in Texas freshwater streams and rivers are open to the public if they meet anyone of three tests: (1) "Navigable by statute" ("'Navigable stream' means a stream which retains an average width of 30 feet from the mouth up"); (2) "Navigable in fact"; (3) or recognition as a perennial stream under a Spanish land grant issued prior to December 14, 1837.
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