Adjudication of the Water Rights of Upper Guadalupe Segment of Guadalupe River Basin, In re

• Decision Date: 24 November 1982
• Docket Number: No. C-770,C-770
• Citation: 642 S.W.2d 438
• Parties: In re the ADJUDICATION OF THE WATER RIGHTS OF the UPPER GUADALUPE SEGMENT OF the GUADALUPE RIVER BASIN.
• Court: Texas Supreme Court

Page 438

642 S.W.2d 438

In re the ADJUDICATION OF THE WATER RIGHTS OF the UPPER GUADALUPE SEGMENT OF the GUADALUPE RIVER BASIN.

No. C-770.

Supreme Court of Texas.

Nov. 24, 1982.

Rehearing Denied Dec. 31, 1982.

Darrell G. Lochte, Wallace & Jackson, Kerrville, Hooper, Robinson & Moeller, Elbert Hooper, Henry & Lowerre, Richard Lowerre, Austin, for petitioner.

Mark White, Atty. Gen., R. Lambeth Townsend and Timothy Brown, Asst. Attys. Gen., Austin, for respondent.

POPE, Justice.

This is an appeal from an adjudication of the water rights along the Upper Guadalupe River. The Texas Water Rights Commission, acting under the Water Adjudication Act of 1967, determined the water rights of owners of 208 separate tracts of land that border the Upper Guadalupe River. Nineteen parties excepted, and, after hearing additional evidence, the 57th District Court made final the adjudication. The judgment fully recognized the riparian right to domestic and livestock uses; it recognized no riparian rights for lands granted after July 1, 1895; it recognized the riparian right to water used for irrigation but limited the right to the extent of the actual use during any year of the statutory test period from 1963 to 1967. The court of civil appeals affirmed the judgment of the trial court. 625 S.W.2d 353. We granted the writ of error because the decision in this case conflicts in some respects with the decision of the court of appeals in the case of Schero v. Texas Dept. of Water Resources, 630 S.W.2d 516 (Tex.App.--Waco, 1982), which is also decided today. Common to both appeals are several constitutional attacks upon the validity of the Water Adjudication Act. We affirm the judgments of the courts below in this case.

Water law in Texas was in a chaotic state prior to the enactment of the Water Rights Adjudication Act in 1967. Tex.Water Code Ann. §§ 5.301-5.341. Texas recognized both the law of riparian rights and also the law of appropriation of waters. Texas judicially adopted the riparian rights system, at least by 1856. Haas v. Choussard, 17 Tex. 588 (1856); see also Fleming v. Davis, 37 Tex. 173, 201 (1872). During the same general period of time, however, the Texas Legislature treated the ordinary flow of rivers, including that of the Guadalupe, as waters that the State could legislatively appropriate. ¹ In 1852 the Texas Legislature by enacting its first irrigation law, authorized county courts to regulate dams and the distribution of shares of water. 1852 Tex.Gen.Laws, ch. 74, at 80, 3 H. Gammel, Laws of Texas 958 (1898).

Following the severe drought that began in the summer of 1883, Governor Lawrence S. Ross called on the 21st Legislature to adopt for Texas the appropriation system of water rights. ² The legislature responded enacting The Irrigation Act of 1889, 1889 Tex.Gen.Laws, ch. 88, at 100, 9 H. Gammel, Laws of Texas 1128 (1898). Governor Culberson called on the 24th Legislature six years later to preserve the State's storm waters for beneficial use, and that resulted in the enactment of the Irrigation Act of 1895. 1895 Tex.Gen.Laws, ch. 21, at 21, 10 H. Gammel, Laws of Texas 751 (1898). The acts declared that the unappropriated waters of streams in the arid parts of the State were the property of the public, but provided that the rights of riparian owners were not prejudiced.

Those two acts launched Texas upon its dual system of water rights. The State today makes appropriations of (1) its flood waters, Motl v. Boyd, 116 Tex. 82, 286 S.W. 458 (1926), (2) the waters in streams riparian to lands previously granted by Spain and Mexico, State v. Valmont Plantations, 346 S.W.2d 853 (Tex.Civ.App.--San Antonio 1961), opinion adopted, 163 Tex. 381, 355 S.W.2d 502 (1962), and (3) the ordinary flow and underflow of streams riparian to lands granted after July 1, 1895, Tex.Water Code Ann. § 11.001(b). It distributes those waters for beneficial use by the issuance of permits.

The acts of 1889 and 1895 generated an entirely new problem. They authorized the use of state waters by those who filed in the offices of the county clerks affidavits describing the amount of water claimed and where it would be used. 1889 Tex.Gen.Laws, ch. 88, § 5, at 101, 9 H. Gammel, Laws of Texas 1128 (1898); 1895 Tex.Gen.Laws, ch. 21, § 6, at 22, 10 H. Gammel, Laws of Texas 751 (1898). The filings, called certified filings, actually magnified the problems, because paper appropriations exceeded the capacity of the streams. Furthermore, "less than one-fourth of the total appropriated quantity was put to consumptive use." Rollins, The Need For a Water Inventory in Texas, Proceedings, Water Law Conference, University of Texas, 67, 68 (1952).

The droughts in 1910 and 1917 prompted the citizens of Texas to adopt the "Conservation Amendment" to the Texas Constitution, mandating the conservation of public waters. Tex.Const. art. XVI, § 59. The Legislature also enacted the Irrigation Act of 1917. 1917 Tex.Gen.Laws, ch. 88, at 211. That act authorized the Board of Water Engineers to make determinations of conflicting water rights, but in 1921 this court held the adjudicatory powers of the Board unconstitutional as an invasion by the executive branch upon the judicial branch of government. Board of Water Engineers v. McKnight, 111 Tex. 82, 229 S.W. 301 (1921). The Texas Legislature in 1953 again created a forum for the adjudication of the massive confusion about claims to water rights. 1953 Tex.Gen.Laws, ch. 357, at 874. Again, the legislation failed because of its provision for a hybrid method of review that inconsistently authorized both a factual de novo review as well as a legal substantial evidence review. Southern Canal Co. v. State Board of Water Engineers, 159 Tex. 227, 318 S.W.2d 619 (1958).

McKnight ushered in a half century interregnum during which there was no inventory of available water and no record of the extent of claims upon the dwindling supply. The appropriators did not know the extent of their claims vis-a-vis other appropriators; riparian claimants did not know their rights vis-a-vis other riparians, and appropriators and riparians did not know their rights vis-a-vis each other. The problem was that the concepts basic to the two systems were hostile to each other. The appropriative system is based upon the beneficial consumption or use of water, while the riparian system is based on an ongoing right to an undetermined amount of future use to the falsely assumed undiminished flow of Texas streams. The appropriation system quantifies both the available waters and the amount of the authorized beneficial uses. Permittees use or lose their rights. Riparians on the other hand assert that their unquantified rights, though unexercised, continue indefinitely to the undiminished flow of streams that periodically ranges between flood levels to long periods of slight flow or no flow at all.

The judiciary has tried to reconcile the conflicts between the two systems. This court held in 1905 that the riparian doctrine, like the appropriation system, permitted irrigation. Watkins Land Co. v. Clements, 98 Tex. 578, 86 S.W. 733 (1905). The Supreme Court in 1926 undertook to divide the waters between riparians and appropriators, so that riparians would get the ordinary flow and underflow of streams; appropriators would get the flood waters. Motl v. Boyd, 116 Tex. 82, 286 S.W. 458 (1926). The line was amorphous, and engineers and hydrologists had problems determining the ordinary flow of a stream that flowed only when it rained. Mean flow, average flow, and ordinary flow are measures that have not been judicially addressed. Motl also generated a new problem by its dicta that Spain and Mexico also recognized the riparian system. The error was corrected in State v. Valmont Plantations, 346 S.W.2d 853 (Tex.Civ.App.--San Antonio 1961), opinion adopted, 163 Tex. 381, 355 S.W.2d 502 (1962).

The story of water law in Texas is also the story of its droughts. Texas' longest sustained recorded period of drought was between 1950 and 1957. The judicial focus during those years was upon the Lower Rio Grande--the region from Falcon Dam, not then completed, to the Gulf of Mexico. The region was irrigated by water districts that variously claimed both riparian and appropriative rights. Upper irrigators were depriving citizens of lower municipalities of water essential for basic domestic uses. With no adjudicatory body in Texas, the District Court of Cameron County, acting under the common law, took judicial custody of the scarce waters of the Rio Grande and appointed a watermaster to distribute the waters equitably. ³

The procedure, though bitterly contested, was approved. Hidalgo County Water Improvement District No. Two v. Cameron County Water Control & Improvement Dist. No. 5, 253 S.W.2d 294, 298 (Tex.Civ.App.--San Antonio 1952, writ ref'd n.r.e.); Hidalgo County Water Improvement District No. Two v. Cameron County Water Control & Improvement District No. Five, 250 S.W.2d 941, 945 (Tex.Civ.App.--San Antonio 1952, no writ). The legislature later enacted a statute authorizing the appointment of a watermaster. Tex.Water Code Ann. §§ 5.326, 5.401-5.409.

Ordinary trial rules were inadequate to regulate an entire waterway. The rivers of Texas do not flow according to venue rules. Procedures about parties, venue, and jurisdiction do not fit suits concerning multiple claimants to waters that flow great distances. Maverick County Water Control & Improvement Dist. v. City of Laredo, 346 S.W.2d 886 (Tex.Civ.App.--San Antonio 1961, writ ref'd n.r.e.). After a number of subsidiary cases were concluded, the main suit that decided the rights of more than three thousand claimants to the dwindling waters of the Rio Grande finally terminated in a final judgment in 1970. ⁴ State of Texas v. Hidalgo County Water Control & Improvement District No. Eighteen, 443 S.W.2d 728 (Tex.Civ.App.--Corpus Christi 1969, writ ref'd n.r.e.).

The same expensive and sterile judicial...