Adjudication of Upper Guadalupe River Segment of Guadalupe River Basin, In re, 16475

• Decision Date: 24 July 1981
• Docket Number: No. 16475,16475
• Citation: 625 S.W.2d 353
• Parties: In re the ADJUDICATION OF the UPPER GUADALUPE RIVER SEGMENT OF the GUADALUPE RIVER BASIN.
• Court: Texas Court of Appeals

Page 353

625 S.W.2d 353

In re the ADJUDICATION OF the UPPER GUADALUPE RIVER SEGMENT OF the GUADALUPE RIVER BASIN.

No. 16475.

Court of Civil Appeals of Texas, San Antonio.

July 24, 1981.

Rehearing Denied Aug. 28, 1981.

Elbert Hooper, Hooper, Robinson & Moeler, Austin, Darrell G. Lochte, Edgar A. Wallace, Wallace & Jackson, Kerrville, for appellant.

Douglas G. Caroom, Asst. Atty. Gen., Austin, for appellee.

OPINION

KLINGEMAN, Justice.

This is an appeal by John Duncan (Duncan) and Shelton Land & Cattle Company et al. (Shelton) of a decision of the District Court of Bexar County, Texas, affirming the Texas Water Rights Commission's Final Determination in all regards, ¹ including the Commission's determination of navigability, the Commission's determination that riparian rights do not exist on lands granted after 1895, and the Commission's determination that riparian waters may not be used to irrigate non-riparian land. The trial court also held that the Texas Water Rights Adjudication Act is constitutional in all respects. Findings of Fact and Conclusions of Law were filed by the trial court. ²

Although there are two sets of appellants, some points of error are common to both. Appellant Duncan's brief is addressed primarily to the navigability issues and the issue of riparian irrigation rights in lands sold by the State. Appellant Shelton complains of these issues also, and urges that the trial court erred in affirming the Final Determination of the Texas Water Rights Commission. Most of appellant Shelton's complaints, however, are to the constitutionality of the Texas Water Rights Act.

Appellants' contentions may be summarized as follows: (1) The issue of navigability became moot by virtue of the Commission's finding that riparian landowners had the right to maintain and use dams and reservoirs under the reasonable use concept regardless of navigability; (2) the Water Rights Commission has no jurisdiction or authority to determine navigability; (3) the evidence was insufficient to support a finding of navigability; (4) riparian rights had vested in the lands; (5) riparian waters can be diverted to non-riparian lands under certain circumstances; (6) the action of the Water Rights Commission operated to take vested rights without compensation; (7) the action of the Commission is ex post facto in nature and results in impairment of contracts; (8) the action of the Commission violates due process; (9) the action of the Commission is an impairment of the landowners' title to the stream beds; (10) the action of the Commission constitutes an outright taking of riparian rights without compensation; (11) the trial court should have adopted appellants' findings of fact and conclusions of law; (12) the Commission's Final Determination is an unauthorized exercise of judicial authority; and (13) the independent review standard set forth in the Water Code is unconstitutional.

Appellee, the State of Texas, asks that this court uphold the constitutionality of the Texas Water Rights Adjudication Act in all respects and affirm the judgment of the trial court in all things. Appellee urges that (1) the Water Rights Act does not take or destroy vested rights by simply imposing a limitation on the unexercised or unvested portion of such water rights; (2) the Water Rights Act may constitutionally affect water rights and impose limitations on their use in the interest of conservation of water and the public welfare; (3) the district court correctly held that riparian rights do not attach to lands upon which title passed from the State after July 1, 1895; (4) the district court properly held that riparian waters cannot be used on non-riparian lands; (5) the district court correctly held that the north and south forks of the Guadalupe River are navigable streams within the meaning of Section 21.001(3) of the Texas Natural Resources Code; (6) the Water Rights Act does not violate Article II, section 1, or Article V, section 1, of the Texas Constitution by conferring judicial powers on an administrative agency and the Commission is not performing judicial functions since the final review is by the court; (7) Section 11.320 of the Water Rights Act providing for independent review by the court is constitutional; (8) the trial court did not err in failing to adopt appellants' proposed findings of fact and conclusions of law; (9) the Water Code is constitutional because it is enacted in the interest of conservation of water and public welfare, under constitutional authority.

We basically agree with appellee's contentions and affirm the judgment of the trial court. It is clear that prior to the passage of the current Water Rights Adjudication Act Texas water law was in a state of great confusion. One court remarked that Texas water laws and decisions are in hopeless confusion and their application would be difficult; that such laws confer little real authority upon the State Board of Engineers; that permits have been granted on many streams and if riparian rights are given the full effect for which plaintiffs contend practically every drop of water, normal flow or flood is bespoken. Martinez v. Maverick County Water Control & Improvement District No. 1, 219 F.2d 666 (5th Cir. 1955).

A notable example of problems involved, including the complexity and length of litigation is demonstrated in State 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.), which took over thirteen years to decide, involved approximately 3,000 parties and cost an estimated $10 million in court costs and attorneys' fees. In an effort to clear up such confusion the Texas Water Rights Adjudication Act was passed.

The Water Rights Adjudication Acts passed by the western states are primarily divided into three types: (a) the Colorado type Act which is entirely a court adjudication conducted before special water judges; (b) the Wyoming type Act, which is an entirely administrative adjudication in which the agency's decision is final unless appealed to the courts under the normal review of administrative decisions procedure; and (c) the Oregon type Act which consists of a two-step procedure-an initial determination by the administrative agency followed by automatic judicial review, with the final decision of contested issues being made by the courts. The Texas Act is generally the Oregon type, with some variations.

Appellants' points may be classified into three general categories: (1) riparian issues; (2) navigability issues; and (3) constitutional issues. They will be so discussed in this opinion.

The conservation amendment, Article XVI, section 59(a), provides:

The conservation and development of all the natural resources of this State, including the control, storing, preservation and distribution of its storm and flood waters, the water of its rivers and streams, for irrigation, power and all other useful purposes, the reclamation and irrigation of its arid, semi-arid and other lands needing irrigation, the reclamation and drainage of its overflowed lands, and other lands needing drainage, the conservation and development of its forests, water and hydro-electric power, the navigation of its inland and coastal waters, and the preservation and conservation of all such natural resources of the State are each and all hereby declared public rights and duties; and the Legislature shall pass all such laws as may be appropriate thereto.

Section 11.302 of the Water Act, Declaration of Policies, states as follows:

The conservation and best utilization of the water resources of this state are a public necessity, and it is in the interest of the people of the state to require recordation with the commission of claims of water rights which are presently unrecorded, to limit the exercise of these claims to actual use, and to provide for the adjudication and administration of water rights to the end that the surface-water resources of the state may be put to their greatest beneficial use. Therefore, this subchapter is in furtherance of the public rights, duties and functions mentioned in this section and in response to the mandate expressed in Article XVI, Section 59 of the Texas Constitution and is in the exercise of the police powers of the state in the interest of the public welfare.

Riparian Rights

An article written in 1954 by Frank J. Trelease, a professor of law at the University of Washington, entitled, Coordination of Riparian and Appropriative Rights to the Use of Water, points out common problems in the western states pertaining to riparian rights, wherein it is stated:

In 1943 the National Resources Planning Board published State Water Law in the Development of the West, the end product of a comprehensive study which concluded that "... the existence of unused riparian rights in some States is a formidable obstacle to the best utilization of water." Today such rights are protected in California, North Dakota, Oklahoma, South Dakota, Texas and possibly Kansas. In each of these states the problem is different, but the ultimate goal the same-to get the maximum benefit from the water available.

It is doubtful that this can ever be accomplished under riparian law with its correlative but uncertain rights fluctuating as the stream rises and falls and as demands increase or decrease, limiting the benefits of development to a few persons favored because of the location of their lands and administered by slow and expensive litigation in the courts. The ultimate coordination of appropriation and riparian rights into an integrated system lies in the adoption of some variant of the "Oregon plan" by which existing riparian uses are vested and stabilized and future development is carried on under the law of appropriation without regard to the location of the water use.

Trelease, Coordination of Riparian and Appropriative Rights to the Use of Water, 33 Tex.L.Rev. 24 (1954).

The ...