Board of Water Engineers v. McKnight

• Decision Date: 16 March 1921
• Docket Number: (No. 3277).
• Citation: 229 S.W. 301
• Parties: BOARD OF WATER ENGINEERS et al. v. McKNIGHT.
• Court: Texas Supreme Court

Page 301

229 S.W. 301

BOARD OF WATER ENGINEERS et al. v. McKNIGHT.

(No. 3277).

Supreme Court of Texas.

March 16, 1921.

Error to Court of Civil Appeals of Eighth Supreme Judicial District.

Suit by C. K. McKnight against the Board of Water Engineers and others. An order refusing an injunction was reversed and an injunction granted by the Court of Civil Appeals (207 S. W. 599), and defendants bring error. Affirmed.

C. M. Cureton, Atty. Gen., W. F. Potter, of Austin, and Gaines & Corbett, of Bay City, for plaintiffs in error.

Jno. B. Howard, of Pecos, and Clay Cooke, of Fort Worth, for defendant in error.

GREENWOOD, J.

Defendant in error, C. K. McKnight, brought this suit against the plaintiffs in error, Pecos & Toyah Lake Irrigation Company and the Board of Water Engineers of the State of Texas, besides others, to enjoin a proceeding before said Board of Water Engineers, instituted by the Irrigation Company, for the determination of the relative rights of various claimants to the waters of the Pecos river. The injunction was sought on the ground that sections 105 to 132 of the Act of March 19, 1917, chapter 88, being articles 5011½f to 5011½ss of the Supplement to Vernon's Texas Civil and Criminal Statutes, were void because repugnant to section 1 of article 2, and to section 1 of article 5, of the State Constitution. From an order of the district judge refusing the injunction, defendant in error appealed to the Court of Civil Appeals, where he obtained a judgment, granting the injunction which he sought. 207 S. W. 599.

The writ of error was allowed because of the great importance of the question presented.

It will suffice here to briefly state the substance of articles 5011½f to 5011½ss, save as to some of them, which will be set out in full.

Article 5011½f declares it shall be the duty of the Board of Water Engineers, when they find facts and conditions justify it, to make a determination of the relative rights of the various claimants to the waters of any stream or of any other source of supply, on the petition of any water user, after fixing a time to take testimony and to make examinations. The article provides that any suit brought in any court to determine rights to the use of water may be transferred to the Board for its determination.

Article 5011½ff requires the publication, in two issues of one or more newspapers of general circulation in the portion of the state wherein the water supply is situated, of notice of the date when the Board will begin to take testimony as to the rights of the parties claiming water, and of the date when it will begin to investigate the flow of the stream and of ditches and pumps taking water from the stream.

Article 5011½g provides:

"It shall be the duty of the Board of Water Engineers to cause a notice to be sent by registered mail to each person, firm or corporation shown by the records of the Board to the Board to be a user or claimant to the use of water upon such stream or other source of water supply, which said notice shall set forth the date when a member or members of the Board will sit within the county of such claimant's residence, or the county in which may be situated the land to which such water right may be appurtenant, and also setting forth the date when the examination of the stream or other source of water supply, and the ditches and pumps diverting water therefrom, will begin; and also the date when testimony will be taken as to the rights to the water of said stream, or other source of water supply. Said notice shall be mailed at least thirty days prior to the date set therein for making examination of such stream, or other source of water supply, and the taking of testimony."

Articles 5011½gg and 5011½h require the claimant or owner of water to present to the Board, on a blank form to be furnished him by the Board with the notice last mentioned, all particulars necessary for the determination of the water rights to which he lays claim, including such facts as will disclose a compliance with the law in acquiring the rights claimed; all to be verified by the claimant's oath.

Article 5011½hh directs that the Board shall begin taking testimony at the time fixed in the notice and shall continue until completed, with adjournments from time to time and from place to place for convenience. The article also forbids a member who is interested in the waters of a stream from taking any part in proceedings to determine the rights of claimants to such waters.

Article 5011½i prescribes notice, from the Board, by registered mail to the various claimants that at a time and place named, such time being not less than ten days thereafter, all of the evidence shall be open to the inspection of the claimants and others.

Articles 5011½ii and 5011½j empower the Board to employ stenographers, hydrographers, and other experts in the performance of certain duties, and to charge such expenditures as costs.

Article 5011½jj provides that any person claiming any interest in the stream or water supply involved may "contest any of the rights of the persons who have submitted evidence," by notifying the Board, in writing, within 30 days after the expiration of the period for public inspection of testimony taken, such written notice to be duly verified and to state with reasonable certainty the grounds of contest. Thereupon it becomes the duty of the Board to notify the contestant and contestee to appear before the Board at a designated, convenient time and place.

Article 5011½k authorizes the Board to compel witnesses to testify, after being subpœnaed, and to order the taking of depositions.

Article 5011½kk directs that all evidence on original hearings and on contests be transmitted to the Board, upon the expiration of the period for which same is kept open, and that such evidence shall thereupon be filed as a public document in the Board's office.

Article 5011½l makes it the duty of the Board, either through some member or by agent, to proceed at the time specified in its notice to examine the stream or other source of water supply, and all works for the diversion of the water, all ditches and canals, all lands irrigated or irrigable, and to gather all data which may be essential to a proper understanding of the relative rights of the parties, and to reduce to writing all observations and measurements, which shall become a part of the Board's records. The article also directs the Board to make a map or plat showing the course of the stream, the location of each ditch and canal, and the lands which have been irrigated or are susceptible to irrigation from canals and ditches already constructed.

Article 5011½ll provides:

"As soon as practicable after the compilation of said data and the filing of said evidence in the office of the Board of Water Engineers, the Board shall make and cause to be entered of record in its office, findings of fact and an order of determination, determining and establishing the several rights to the waters of said stream. And where the evidence taken at such a hearing as herein provided shall disclose existing water rights not represented at such a hearing, said rights shall be included in such findings of fact of said Board and shall be likewise determined and established. A certified copy of such order of determination and findings shall be filed in every county in which such stream or any portion of a tributary is situated, or by which it flows, with the county clerk of said county."

Article 5011½m is as follows:

"Upon the final determination of the rights to the waters of any stream or other source of water supply, it shall be the duty of the secretary of the Board of Water Engineers to issue to each person, association or corporation represented in such determination, upon payment of the fee required by law, a certificate to be signed by the chairman of the Board of Water Engineers, and attested under seal by the secretary of said board, setting forth the name and post office address of the owner of the right, the date of the priority, extent and purpose of such right, and if such water be for irrigation purposes, a description of the legal subdivisions of the land to which the water is appurtenant. Such certificate shall be transmitted by the secretary in person or by registered mail, to the county clerk of the county in which such right is located, and it shall be the duty of the county clerk, upon receipt of the statutory * * * fee, to record the same in a book prepared and kept for that purpose, and the clerk shall, upon receipt of the filing fee and the recording of said certificate, immediately transmit the certificate to the owner."

Article 5011½mm provides:

"Any party or any number of parties, acting jointly, who may feel themselves aggrieved by the determination of the Board of Water Engineers, may take an appeal from the decision of the board to the district court. All persons joining in the appeal shall be joined as appellants, and all others, parties to the proceedings, shall be joined as appellees."

Articles 5011½n, 5011½nn, and 5011½o, prescribe how an appeal shall be perfected and prosecuted, requiring, besides certain notice to all adversary parties and to the secretary of the Board, the filing of a bond in the district court, to be approved by the clerk, within 60 days after the date of the determination appealed from, such bond to be payable to all the parties to the proceeding other than the appellant, to be in such amount as the clerk may fix, and to be conditioned that the appellant will prosecute his appeal to effect and pay all costs which may be adjudged against him. The transcript is to be filed with the district clerk within 90 days from the date of the order appealed from and consists of a certified copy of such order and of all of the records relating thereto, and also the originals or certified copies of all documentary evidence offered or prepared by the Board, including measurements. The...