BROWN, Associate Justice.
The Court of Civil Appeals for the Third Supreme Judicial District has certified to this court the following statement and questions:
“Appellee, Amelia Hall, joined pro forma by her husband, brought this suit to recover damages from the city of Austin, alleged to have been sustained by her as the owner of a tract of land with improvements, constituting the homestead of herself and husband, and located west of the Colorado River, near the city of Austin.
“In the main, the plaintiff’s case is based upon the theory that the construction and maintenance by the city of a certain dam across the Colorado River has destroyed a certain roadway leading from the plaintiffs’ land to the city and constituting plaintiffs’ shortest and best roadway to and from the city.
“It was not shown that the land over which the road runs had ever been condemned in the manner prescribed by statute or donated by the owners thereof for a public road; and the plaintiffs sought to establish the fact that it was a public road by prescription, resulting from long continued use by the public. The road extended across various tracts of land and also crossed the Colorado River. As to some of these tracts, the evidence does not show who were the owners during the prescriptive period, and it does not show whether any of the owners were sui juris during the time referred to. In fact, there was no direct proof that the title to the tracts of land referred to had ever passed out of the State. Furthermore, testimony was submitted showing that the Colorado River, at and about the point where the road crossed, was of an average width
of more than thirty feet before the building of the dam, and that the lines of survejrs fronting thereon do not cross the river.
“With the foregoing statement and explanation, the Court of Civil Appeals certifies to the Supreme Court for decision the following questions which are material to the rights of the parties and are presented in appellant’s brief:
“1. In order for the plaintiffs to establish a prescriptive right to the road, was it necessary to show that during the prescriptive period the servient estates, the various tracts of land against which the prescriptive right is claimed, were owned by persons free from legal disability and against whom limitation or prescriptive right could be acquired by adverse use ?
“2. Under the facts stated, conceding that the land on each side of the river where the road crossed it had been granted by the State to individuals, did the title to the channel of the river remain in the State, so that no prescriptive right to the use thereof as a public road could be acquired by the plaintiffs P In other words, is a stream navigable within the purview of article 4147 of the Revised Statutes because it is of an average width of thirty feet, a navigable stream in the sense that abutting owners acquire title to the water-mark only and title to the channel of the stream remains in the government?”
To the first question we reply in the affirmative.
To the second question, we answer: Article 4147, Revised Statutes, gives to the streams described therein the charactér of navigable streams under the rules which govern the courts in determining that question, and a grant made upon a stream declared by the statute to be navigable would confer title only to the same extent as if the stream were navigable under the general definition given to such water-courses.
A right claimed by prescription rests upon the presumption that the owner of the land has granted the easement and the grant has been lost. To sustain this claim, it must appear that the use upon which the right is predicated has continued for the requisite time, during which the owner was not under disability to resist the claim. 2 Washburn on Real Property, 327, sec. 20; Watkins v. Peck, 13 N. H., 376; Melvin v. Whiting, 13 Pick., 188; Ferrell v. Ferrell, 1 Baxter, 332; Saunders v. Simpson, 37 S. W. Rep., 195. Mr. Washburn states the rule in this language : “To give a user this effect, it must be uninterrupted in the land of another by the acquiescence of the owner, for a period bf at least twenty years (or the period of limitation of the State where the land lies), under an adverse claim of right; while all persons concerned in the estate, in or out of which it is derived, are free from disability to resist it, and are seized of the same in fee and in possession during the requisite period.”
Where the right is claimed against one other than the defendant in a suit or some person under whom he claims, the plaintiff must prove his right and that no disability existed with the person from whom he claims to have derived the right. We do not intend to decide what would
be the rule if a prescriptive right were claimed as against the defendant in the suit or some person whose title he asserts.
Article 4147 of the Revised Statutes reads as follows: "All lands surveyed for individuals, lying on navigable water-courses, shall front one-half of the square on the water-course and the line running at right angles with the general course of the stream, if circumstances of lines previously surveyed under the laws will permit; and all streams, so far as they retain an average width of thirty feet, shall be considered navigable streams within the meaning hereof, and they shall not be crossed by the lines of any survey.” The first part of the article provides for the location of lands upon waters which are navigable according to the general rule of decisions on that subject. The consequences of such a location would be that the grantee would take title only to the water line of the navigable stream and the title of the bed of the stream would remain in the State. This language, "and all streams, so far as they retain an average width of thirty feet, shall be considered navigable streams within the meaning hereof,” was intended to prescribe a definite rule by which surveyors and others could determine what are navigable streams so far as it affects the question of locating lands thereon. The result to the locator is the same as if the stream were navigable under the general rule of decision, and he would take title limited to the water line the same as if the stream were navigable. Hnder article 4147 there can be no difference in the effect of a grant fronting upon a navigable stream and one fronting on a stream declared by the statute to be navigable because of its width. Bach grant must give title to the center of the stream or both must be limited to the water line. The statute places all of these streams which have an average width of thirty feet on equality, whether they are actually navigable or not, and does not undertake to change the rule that limits the title of the grantee when the stream is navigable, but, in effect, applies that rule to the stream or that portion of the stream, which, being within the statutory requirement, would not be navigable except for its provisions. The grant of a tract of land upon the margin of a stream which retains an average width of thirty feet gives title to the grantee only to the water line of such stream, the title to the bed of the stream being reserved to the State.
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BROWN, Associate Justice.
The Court of Civil Appeals for the Third Supreme Judicial District has certified to this court the following statement and questions:
“Appellee, Amelia Hall, joined pro forma by her husband, brought this suit to recover damages from the city of Austin, alleged to have been sustained by her as the owner of a tract of land with improvements, constituting the homestead of herself and husband, and located west of the Colorado River, near the city of Austin.
“In the main, the plaintiff’s case is based upon the theory that the construction and maintenance by the city of a certain dam across the Colorado River has destroyed a certain roadway leading from the plaintiffs’ land to the city and constituting plaintiffs’ shortest and best roadway to and from the city.
“It was not shown that the land over which the road runs had ever been condemned in the manner prescribed by statute or donated by the owners thereof for a public road; and the plaintiffs sought to establish the fact that it was a public road by prescription, resulting from long continued use by the public. The road extended across various tracts of land and also crossed the Colorado River. As to some of these tracts, the evidence does not show who were the owners during the prescriptive period, and it does not show whether any of the owners were sui juris during the time referred to. In fact, there was no direct proof that the title to the tracts of land referred to had ever passed out of the State. Furthermore, testimony was submitted showing that the Colorado River, at and about the point where the road crossed, was of an average width
of more than thirty feet before the building of the dam, and that the lines of survejrs fronting thereon do not cross the river.
“With the foregoing statement and explanation, the Court of Civil Appeals certifies to the Supreme Court for decision the following questions which are material to the rights of the parties and are presented in appellant’s brief:
“1. In order for the plaintiffs to establish a prescriptive right to the road, was it necessary to show that during the prescriptive period the servient estates, the various tracts of land against which the prescriptive right is claimed, were owned by persons free from legal disability and against whom limitation or prescriptive right could be acquired by adverse use ?
“2. Under the facts stated, conceding that the land on each side of the river where the road crossed it had been granted by the State to individuals, did the title to the channel of the river remain in the State, so that no prescriptive right to the use thereof as a public road could be acquired by the plaintiffs P In other words, is a stream navigable within the purview of article 4147 of the Revised Statutes because it is of an average width of thirty feet, a navigable stream in the sense that abutting owners acquire title to the water-mark only and title to the channel of the stream remains in the government?”
To the first question we reply in the affirmative.
To the second question, we answer: Article 4147, Revised Statutes, gives to the streams described therein the charactér of navigable streams under the rules which govern the courts in determining that question, and a grant made upon a stream declared by the statute to be navigable would confer title only to the same extent as if the stream were navigable under the general definition given to such water-courses.
A right claimed by prescription rests upon the presumption that the owner of the land has granted the easement and the grant has been lost. To sustain this claim, it must appear that the use upon which the right is predicated has continued for the requisite time, during which the owner was not under disability to resist the claim. 2 Washburn on Real Property, 327, sec. 20; Watkins v. Peck, 13 N. H., 376; Melvin v. Whiting, 13 Pick., 188; Ferrell v. Ferrell, 1 Baxter, 332; Saunders v. Simpson, 37 S. W. Rep., 195. Mr. Washburn states the rule in this language : “To give a user this effect, it must be uninterrupted in the land of another by the acquiescence of the owner, for a period bf at least twenty years (or the period of limitation of the State where the land lies), under an adverse claim of right; while all persons concerned in the estate, in or out of which it is derived, are free from disability to resist it, and are seized of the same in fee and in possession during the requisite period.”
Where the right is claimed against one other than the defendant in a suit or some person under whom he claims, the plaintiff must prove his right and that no disability existed with the person from whom he claims to have derived the right. We do not intend to decide what would
be the rule if a prescriptive right were claimed as against the defendant in the suit or some person whose title he asserts.
Article 4147 of the Revised Statutes reads as follows: "All lands surveyed for individuals, lying on navigable water-courses, shall front one-half of the square on the water-course and the line running at right angles with the general course of the stream, if circumstances of lines previously surveyed under the laws will permit; and all streams, so far as they retain an average width of thirty feet, shall be considered navigable streams within the meaning hereof, and they shall not be crossed by the lines of any survey.” The first part of the article provides for the location of lands upon waters which are navigable according to the general rule of decisions on that subject. The consequences of such a location would be that the grantee would take title only to the water line of the navigable stream and the title of the bed of the stream would remain in the State. This language, "and all streams, so far as they retain an average width of thirty feet, shall be considered navigable streams within the meaning hereof,” was intended to prescribe a definite rule by which surveyors and others could determine what are navigable streams so far as it affects the question of locating lands thereon. The result to the locator is the same as if the stream were navigable under the general rule of decision, and he would take title limited to the water line the same as if the stream were navigable. Hnder article 4147 there can be no difference in the effect of a grant fronting upon a navigable stream and one fronting on a stream declared by the statute to be navigable because of its width. Bach grant must give title to the center of the stream or both must be limited to the water line. The statute places all of these streams which have an average width of thirty feet on equality, whether they are actually navigable or not, and does not undertake to change the rule that limits the title of the grantee when the stream is navigable, but, in effect, applies that rule to the stream or that portion of the stream, which, being within the statutory requirement, would not be navigable except for its provisions. The grant of a tract of land upon the margin of a stream which retains an average width of thirty feet gives title to the grantee only to the water line of such stream, the title to the bed of the stream being reserved to the State.
The apparent object of the Congress of the Republic in enacting the law which is now embodied in article 4147 and of the several Legislatures which have continued it in force ivas to prevent locators upon the public domain from monopolizing the water of the State. At the time the act was passed, the great body of the lands of Texas was public domain, and ivas subject to location by many grants already in existence as well as those necessarily to be issued in the future, and the Congress, foreseeing the necessity of preserving in that territory the streams which afforded water, that the public might have the use of them, enacted this statute. By requiring the grant to be located, one-half of its front upon the stream, the locator was prevented from ex
tending it up and down the margin and thereby controlling largely the water front on one side. By the prohibition against crossing the stream with the lines of a survey, the locator was likewise prevented from controlling the water front of the stream on both sides, and thus the water of such streams would be preserved in a larger measure to those who were entitled to locate the lands of the State. But, in addition thereto, by declaring such streams to be navigable, the State reserved the title to the beds thereof, which are subject to the control of the State.