The opinion
On Motion for Rehearing.
We are not passing upon any controversy between the owner of the title to the land adjacent to the river where the oil well is located with that of appellees. The discussion arises only incidentally. When we spoke of the navigability of such streams, it was su-perinduced by suggestion of appellant, but we did not intend to, nor do we now pass upon the question as to who owns the land where the oil well is located, or the constitutionality of the law appellant presents. We were quite familiar with the-opinion of Judge Brown in the case of City of Austin v. Amelia Hall et al., 93 Tex. 591 , 57 S. W. 563 , cited by appellee and the long line of eases citing it with approval. In that case two questions were certified to the Supreme Court for answer: The first as to a prescriptive right of passage acquired by user, and the other as to *581 navigable streams. There is no claim in this case of a right of way by limitation. In regard to the law defining a navigable stream and what was reserved to the state, we think it appropriate now to quote what our Supreme Court has said on the subject:
“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. Under 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. Each 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 was 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 was 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 extending 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.”
Article 4147, R. S., is now changed to articles 5338, 5330.
It will be observed from what Judge Brown said that “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.” Apropos to this case, what is the bed of the river here spoken of?
We cannot agree with the contention of the appellee because the state was adopting a policy of preventing the location of lands, as said in City of Austin v. Hall, supra, across streams of the average width of 30 feet that it was retaining title to and property rights to sell or lease such lands “upon [or between] the margin of a stream” * * * and “the water line of such stream” and the “bed of the streain,” for that would defeat the very object of the law as Illustrated by the opinion of Mr. Justice Brown who said in preserving “streams which afforded water, that the public might have the use of them * * * by requiring the grant to be located, one-half of it's front upon the stream, * * * prevented [such location] from controlling the water front of the streams on both sides * * * (so that) the water of such streams would be preserved in a larger measure to those who were entitled to locate the lands of the state, * * * the state reserved the title to the beds thereof.”
If there were any such vacant unappropriated lands between surveys located upon and calling for the river as a boundary line and the so-called bed of the river with the reserved power of the state, as contended for, every acre of land on the margin of the stream between the bed, if any, could be sold or leased, and thereby prevent .the true and real riparian owner from appropriating the water for domestic or other purposes. It' is not necessary for us to pass upon that question here, as no question of appellees’ title is controverted by the abutting landowner upon whose land the oil well is situated, and the only question intended to be disposed of is the one we disposed of in the original opinion that appellee has shown no right of way of *582 necessity, or otherwise, over and upon appellants’ land.
The right to take one’s land for public use under our Constitution - and laws must come from' some constitutional power that authorizes the taking of private property. It requires some sovereign power to vest the procedure in some tribunal. In this state, such power, called eminent domain, is vested only in the county courts, and if not there then no other court is endowed with it.
A careful reinvestigation of this case, on rehearing, has convinced this court that the state has no power or authority to grant the privilege to any one.for any purpose, especially putting down wells for oil, that is at variance with or antagonistic to the title retained by the state to the beds of streams 30 or more feet wide, for certain specific purposes, as is indicated in article 5338, Vernon's Sayles’ Civ. Statutes, and as construed by the Supreme Court in the cited case of City of Austin v. Hall, 93 Tex. 591 , 57 S. W. 563 . As held in that opinion the object of the statute, which was enacted by the Congress of the Republic of Texas, and embodied in succeeding statutes, was to conserve the water of all streams really navigable or those made navigable by law, for public use and purposes and to prevent the monopoly of it by 'individuals or corporations. The jealous care exercised by the state over the waters of its streams is indicated by the provision that it can be appropriated only for irrigation, mining, milling, manufacturing, the development of power, the construction and operation of waterworks for cities and towns, or for stock raising. Article 4994. It may be argued that the digging of oil wells is not an appropriation of the waters of a stream, but there could not be a more perfect appropriation of the waters, for by its pollution of the stream it destroys the use of the waters for all purposes by man, beast, or fishes. It is known to every one that an oil well cannot be operated without a waste of oil about it, and there could not be an operation of a line of oil wells in the waters of a stream without rendering the water unfit for use and utterly destroy any fish life in the waters. The waters of navigable streams were not only reserved for use for man and beast, but were conserved for the propagation and rearing of fish for food purposes.
The state of Texas having set apart the beds of all navigable streams for certain purposes has no power to divert the use thereof to other and different purposes, especially. when the diversion will destroy the uses and set aside the purposes for which the reservation was made. No more effective means could be employed by the state to effectually withdraw the reservation of the waters and destroy the use for which the reservation was made than to" “pour oil upon the troubled waters.” There has been no\ authority given by law to the state to set aside a grant, express or implied, made by it', and, when it seeks to divert the privi-le¿es of a grant made to the public and place ■' them in the hands of an individual or corporation, it is giving an exhibiton of lawlessness, not filled with inspiration to obedience to law for the citizens of the commonwealth. The streams were sacredly set apart for water and not' for oil, and no right of way to such streams should be granted except to obtain water.
At least since 1869, it has been a violation of a statute to pollute the water of any water course, lake, pond, marsh, or common sewer, and we understand ’ that law has been made more vigorous and effective than ever by the Thirty-Eighth Legislature, and yet the spectacle is presented of the state of not only licensing the violation of one of its laws,-but actually going into court and lending all its prestige and power to oil men and corporations to open up a highway across private property in • order for them to more easily approach the places where the pollution of a stream will be begun and prosecuted. This court will not place the stamp of its approval upon any such scheme.
The motion for rehearing is overruled.