The Common Law

My friends and I plan to take a multi-day canoe camping trip down a Texas river. We've never done this before. Are we allowed to canoe the river if it's surrounded mostly by private property? And what about camping – can we camp alongside the river?

Navigation of Texas' inland and coastal waters is one of several "public rights and duties" declared by the Texas Constitution. As long as it is navigable, the river is a public waterway that can be used by all. The public can engage in a number of activities in, on, and along a navigable public stream (think river) or a public lake. The main question is whether the river you plan to canoe is navigable. The answer is very likely yes.

In Texas, a stream is public if it is "navigable by statute" or "navigable in fact." The Texas Natural Resources Code defines a stream as navigable by statute if it retains an average width of 30 feet from the mouth up. The entire stream bed should be included in determining the width, including any dry areas of the stream bed not covered by water on any particular day. This means a navigable stream that is sometimes dry can still be considered navigable. There is no precise test for whether a stream is "navigable in fact", although in an old (but still applicable) Austin Court of Appeals case, the Court stated that "waters, which in their natural state are useful to the public for a considerable portion of the year are navigable."

Because Texas law uses a broad definition of navigable streams, and because most rivers in Texas fall within that definition, the vast majority of rivers are public. Boating, swimming, floating, walking, and fishing (with a license) are all allowed by the public on navigable streams, even when they are surrounding by private property. It is important to note that the public does not have the right to cross private property to get to and from the river.

Camping is also allowed along the river bed and banks; however, if the surrounding land is private, it's important to camp within the riverbed. Under Texas law, the riverbed is public property up to the "gradient boundary," which generally means the point where more woody vegetation begins. The public does not have the right to go past the gradient boundary and camp – this would constitute trespass. The exact definition of the gradient boundary is somewhat tricky. Checkout the Texas Parks and Wildlife website (tpwd.texas.gov) for more background on how Texas law determines the gradient boundary.