Can a Texas navigation district require an easement for utility lines crossing over its land?

Plain-English summary

A navigation district is a special-purpose local government that exists to improve waterways and aid navigation, and the Jackson County Navigation District owns submerged land, parts of the Lavaca and Navidad Rivers, that it bought from the State. The county auditor asked the AG whether the district could require an easement for aerial utility lines, both new and existing, that cross over the district's boundaries. An easement is a right to use someone else's land for a limited purpose, like running power or utility lines across it.

The AG built the analysis from property-ownership basics. The State can convey land to a navigation district in fee simple (the full set of ownership rights, except minerals) under the former article 8225 by which the district acquired its land. Fee simple ownership generally carries the right to grant an interest in the nature of an easement, and only the owner of land can create an easement. The AG also noted that once the State has conveyed fee simple title to submerged land, it cannot afterward grant an easement over that same land, so the power to grant easements would sit with the district as owner, not the State.

But ownership alone does not settle it, because a navigation district is not a private landowner. It is a special-purpose district that has only the powers expressly delegated to it by statute or clearly implied from those powers, and it may use its land only in accordance with the laws governing navigation districts. So the district's authority to grant an easement has to be read alongside its limited statutory purpose: navigation. Navigation districts are governed by chapters 60 through 63 of the Water Code, and whether a district operates under article III, section 52 or article XVI, section 59 of the Constitution, its purpose is to improve rivers, bays, creeks, streams, and canals and to construct and maintain canals and waterways to aid navigation, with contracting authority necessary or convenient to operating or developing district waterways. The AG declined to interpret the specific patent deed, because this office does not construe particular contracts. With that caveat, and assuming the patent did not exclude or limit the power to grant easements, the AG concluded the district may require an easement for new and existing aerial utility lines crossing its boundaries, provided that doing so is consistent with the district's constitutional and statutory navigation purposes.

Currency note

This opinion was issued in 2019. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

What the opinion meant for those who asked

Navigation districts and their boards: At the time of the opinion, the AG read the law to let a district that owns its land in fee simple require easements for aerial utility lines crossing its boundaries, but only as an exercise of authority consistent with the district's navigation purpose, not as an unrestricted landowner power. The district's special-purpose status limited how it could use its ownership rights.

Utility companies running lines over district land: The opinion suggested a district could require an easement for both new and existing aerial lines crossing its boundaries, subject to the navigation-purpose limitation and to whatever the district's land patent actually said.

County auditors and counsel: The opinion flagged two fact-specific gatekeepers it would not resolve: the terms of the particular patent deed (which the AG does not construe) and whether the district operates under article III, section 52 or article XVI, section 59. Both would need to be checked before relying on the general conclusion.

Common questions

Can a navigation district that owns land grant or require easements like a private owner?
Only within limits. The opinion explained that fee simple ownership generally includes the right to grant an easement, but a navigation district may exercise that right only consistent with its constitutional and statutory navigation purposes.

Why does the navigation purpose matter so much?
Because a navigation district is a special-purpose district with only the powers expressly delegated or clearly implied. The AG said its authority to grant an easement has to be considered alongside the statutes establishing its limited purpose of navigation.

Did the AG decide what this district's land patent actually allows?
No. The opinion stated this office does not construe particular contracts or patents, so it answered only on the assumption that the patent did not exclude or limit the power to grant easements.

Can the State grant an easement over the district's submerged land instead?
No, not after a fee simple conveyance. The opinion noted that once the State conveys fee simple title to submerged land, it cannot later grant an easement over that same land.

Background and statutory framework

The district was established by county-voter election under former article 8198 of Vernon's Revised Civil Statutes (repealed when the Water Code was enacted in 1971) and bought submerged land under former article 8225 (also repealed in 1971). The AG relied on Texas Parks & Wildlife Department v. Champlin Petroleum Co. for the holding that article 8225 allowed the State to convey land by patent in fee simple (except minerals) to a navigation district, and on Hawkins v. Ehler and Calhoun v. Killian for what fee simple means. It cited First American Title Insurance Co. v. Adams for the rule that the State cannot grant an easement over land it has already conveyed in fee simple, Drye v. Eagle Rock Ranch for the rule that only a landowner can create an easement, and Stephen F. Austin State University v. Flynn for the nature of an easement as a nonpossessory interest.

On the limits of district power, the AG cited Natland Corp. v. Baker's Port, GA-0905, and Tri-City Fresh Water Supply District No. 2 v. Mann for the special-purpose-district rule that a district has only delegated or clearly implied powers, and the Texas Supreme Court's 2019 decision in Chambers-Liberty Counties Navigation District v. State for reading a navigation district's authority in conjunction with its limited navigation purpose. Navigation districts are governed by Water Code chapters 60 through 63, with the navigation purpose stated in sections 61.111 and 62.101 and general contracting authority in section 60.003. The AG declined to construe the patent itself, citing KP-0041, and described a land patent using Galan Family Trust v. State and Louisiana Pacific Corp. v. Holmes.

Citations

Statutes, constitutional, and session-law provisions:

• Vernon's Revised Civil Statutes art. 8198 (repealed 1971); art. 8225 (repealed 1971)
• Tex. Water Code §§ 60.002-.564; § 60.003; § 60.241; §§ 61.001-.239; § 61.022; § 61.111(1)-(2); §§ 61.111, .115-.117; §§ 62.001-.318; § 62.101; §§ 63.001-.379
• Tex. Const. art. III, § 52; art. XVI, § 59
• Act of Mar. 29, 1971, 62d Leg., R.S., ch. 58, §§ 1-2, 1971 Tex. Gen. Laws 110

Cases:

• Tex. Parks & Wildlife Dep't v. Champlin Petroleum Co., 616 S.W.2d 668, 672 (Tex. Civ. App.-Corpus Christi 1981, writ ref'd n.r.e.)
• Galan Family Tr. v. State, No. 03-15-00816-CV, 2017 WL 744250, at *1 n.1 (Tex. App.-Austin Feb. 24, 2017, pet. denied)
• La. Pac. Corp. v. Holmes, 94 S.W.3d 834, 837 (Tex. App.-San Antonio 2002, pet. denied)
• Hawkins v. Ehler, 100 S.W.3d 534, 548 (Tex. App.-Fort Worth 2003, no pet.)
• Calhoun v. Killian, 888 S.W.2d 51, 55 (Tex. App.-Tyler 1994, writ denied)
• First Am. Title Ins. Co. v. Adams, 829 S.W.2d 356, 363-64 (Tex. App.-Corpus Christi 1992, writ denied)
• Drye v. Eagle Rock Ranch, Inc., 364 S.W.2d 196, 202 (Tex. 1962)
• Natland Corp. v. Baker's Port, Inc., 865 S.W.2d 52, 62 (Tex. App.-Corpus Christi 1993, writ denied)
• Tri-City Fresh Water Supply Dist. No. 2 v. Mann, 142 S.W.2d 945, 946 (Tex. 1940)
• Chambers-Liberty Ctys. Navigation Dist. v. State, 62 Tex. Sup. Ct. J. 969, 2019 WL 2063575, at *9 (May 10, 2019)
• Stephen F. Austin State Univ. v. Flynn, 228 S.W.3d 653, 658 (Tex. 2007)

Attorney General opinions:

• Tex. Att'y Gen. Op. No. KP-0041 (2015)
• Tex. Att'y Gen. Op. No. GA-0905 (2012)

Secondary authority:

• Black's Law Dictionary 1300 (10th ed. 2014)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/ken-paxton/kp-0262
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2019/kp0262.pdf

Original opinion text

KEN PAXTON
ATTORNEY GENERAL OF TEXAS

July 15, 2019

Ms. Michelle Darilek Opinion No. KP-0262
Jackson County Auditor
411 North Wells, Room 201 Re: Whether the Jackson County Navigation
Edna, Texas 77957 District may require an easement for new and
existing aerial utility lines which cross over its
boundaries (RQ-0268-KP)

Dear Ms. Darilek:

    You ask whether the Jackson County Navigation District (the "District") may require an

easement for new and existing aerial utility lines which cross over its boundaries.1 You state that
the District was established by an election of county voters under article 8198 of Vernon's Revised
Civil Statutes.2 Request Letter at 1. You inform us that the District purchased a tract of submerged
land from the State consisting of portions of the Lavaca River and the Navidad River. Id. Quoting
from the patent deed,3 you state that the property was "sold for navigation purposes as stated in
Article 8225, Vernon's Civil Statutes, and that the provisions of said Article, and rights, privileges
and limitations described therein are incorporated into this Patent by reference the same as if they
were specifically set out" in the patent.4 Id.

    You do not provide a copy of the patent, and in any event, this office generally does not

construe the terms of a particular transaction. See Tex. Att'y Gen. Op. No. KP-0041 (2015) at 4
("This office does not construe particular contracts or contract provisions."). However, the State
may convey its full interest in land, minus minerals, to a navigation district under former article
8225. See Tex. Parks & Wildlife Dep't v. Champlin Petroleum Co., 616 S.W.2d 668, 672 (Tex.
Civ. App.-Corpus Christi 1981, writ ref'd n.r.e.) (holding that article 8225, "when interpreted in
its entirety, allows the State of Texas to convey lands by patent in fee simple (except minerals) to
any navigation district"). "Fee simple" generally means the full bundle of property ownership
rights, including the right to dispose of or grant an interest in the property. See Hawkins v. Ehler,
100 S.W.3d 534, 548 (Tex. App.-Fort Worth 2003, no pet.) ("Fee simple title is an estate over
which the owner has unlimited power of disposition in perpetuity without condition or
limitation."); Calhoun v. Killian, 888 S.W.2d 51, 55 (Tex. App.-Tyler 1994, writ denied) (stating
that "a fee simple absolute constitutes the full panoply of rights in real property"). Once the State
has conveyed fee simple title to submerged lands, the State may not thereafter grant an easement
over the same lands. See First Am. Title Ins. Co. v. Adams, 829 S.W.2d 356, 363-64 (Tex. App.-
Corpus Christi 1992, writ denied) (holding that easement granted by the State in 1947 could not
affect submerged land conveyed in fee simple in 1931). One of the incidents of property ownership
is the general right to convey a property interest in the nature of an easement.5 See Drye v. Eagle
Rock Ranch, Inc., 364 S.W.2d 196, 202 (Tex. 1962) (holding that only the owner of land may
create an easement). However, a navigation district may exercise any property ownership rights
it may possess only within the bounds of its constitutional and statutory authority. Natland Corp.
v. Baker's Port, Inc., 865 S.W.2d 52, 62 (Tex. App.-Corpus Christi 1993, writ denied) (stating
"it is axiomatic that [a navigation district can only use its] land in accordance with the laws
governing navigation districts").

   A navigation district is a special purpose district and, as such, "has only those powers

expressly delegated to it by statute or by the clear implication of its express powers." Tex. Att'y
Gen. Op. No. GA-0905 (2012) at 2; see also Tri-City Fresh Water Supply Dist. No. 2 v. Mann, 142
S.W.2d 945, 946 (Tex. 1940). Thus, a navigation district's authority to grant an easement must
"be considered in conjunction with the ... statutory provisions establishing the District's limited
purpose: navigation." Chambers-Liberty Ctys. Navigation Dist. v. State, 62 Tex. Sup. Ct. J. 969,
2019 WL 2063575, at *9 (May 10, 2019).

    Navigation districts are governed by chapters 60 through 63 of the Water Code. Chapter

60 contains general provisions applicable to navigation districts. See TEX. WATER CODE
§§ 60.002-.564. Chapter 61 concerns navigation districts created under article III, section 52 of
the Texas Constitution. See id. §§ 61.001-.239. Chapter 62 concerns districts operating under
article XVI, section 59. See id. §§ 62.001-.318. Chapter 63 concerns self-liquidating districts.
See id. §§ 63.001-.379. A navigation district created under article III, section 52 may convert into
a district operating under article XVI, section 59. Id. § 60.241.

    The information you provided does not establish whether the navigation district was

created or operates under article III, section 52 or article XVI, section 59 of the Constitution. The
stated purpose of a district under either chapter 61 or 62 is to "improve rivers, bays, creeks,
streams, and canals inside or adjacent to the district" and "construct and maintain canals and
waterways to permit or aid navigation." Id. §§ 61.111(1)-(2), 62.101. All navigation districts
have contracting authority necessary or convenient to the operation or development of district
waterways. Id. § 60.003. Thus, assuming the State's patent did not exclude or otherwise limit the
power to grant easements, a navigation district may require an easement for new and existing aerial
utility lines which cross over its boundaries, provided that doing so is consistent with the
navigation district's constitutional and statutory purposes.

                                 SUMMARY

                  Assuming that the patent by which the Jackson County
          Navigation District purchased submerged land from the State does
          not provide otherwise, the District may require an easement for new
          and existing aerial utility lines which cross over its boundaries,
          provided that doing so is consistent with the navigation district's
          constitutional and statutory purposes.

                                        Very truly yours,

                                        KEN PAXTON
                                        Attorney General of Texas

JEFFREY C. MATEER
First Assistant Attorney General

RYAN L. BANGERT
Deputy Attorney General for Legal Counsel

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

WILLIAM A. HILL
Assistant Attorney General, Opinion Committee

1See Letter from Ms. Michelle Darilek, Jackson Cty. Auditor, to Honorable Ken Paxton, Tex. Att'y Gen. at 1-2 (Jan. 31, 2019), https://www2.texasattorneygeneral.gov/opinion/requests-for-opinion-rqs ("Request Letter").
2Article 8198 was repealed with the enactment of the Texas Water Code in 1971. See Act of Mar. 29, 1971, 62d Leg., R.S., ch. 58, §§ 1-2, 1971 Tex. Gen. Laws 110, 587, 660 ("1971 Act"); see TEX. WATER CODE § 61.022 (current version).
3A land patent "is an instrument by which the State conveys land to a private person." Galan Family Tr. v. State, No. 03-15-00816-CV, 2017 WL 744250, at *1 n.1 (Tex. App.-Austin Feb. 24, 2017, pet. denied) (citing Black's Law Dictionary 1300 (10th ed. 2014)); La. Pac. Corp. v. Holmes, 94 S.W.3d 834, 837 (Tex. App.-San Antonio 2002, pet. denied) (referring to an instrument conveying property from the State to an individual as a "patent deed").
4Article 8225 was also repealed by the 1971 Act enacting the Water Code. See Act of Mar. 29, 1971, 62d Leg., R.S., ch. 58, §§ 1-2, 1971 Tex. Gen. Laws 110, 592-94, 660; see TEX. WATER CODE §§ 61.111, .115-.117 (current version).
5See Stephen F. Austin State Univ. v. Flynn, 228 S.W.3d 653, 658 (Tex. 2007) ("An easement does not convey title to property. It is instead a nonpossessory interest that authorizes its holder to use the property for only particular purposes." (citations and quotation marks omitted)).