City of Corpus Christi v. Nueces County Water Control and Imp. Dist. No. 3

• Citation: 540 S.W.2d 357
• Decision Date: 30 June 1976
• Docket Number: No. 977,977
• Parties: CITY OF CORPUS CHRISTI et al., Appellants, v. NUECES COUNTY WATER CONTROL AND IMPROVEMENT DISTRICT NO. 3 et al., Appellees.
• Court: Court of Appeals of Texas. Court of Civil Appeals of Texas

Page 357

540 S.W.2d 357

CITY OF CORPUS CHRISTI et al., Appellants,

v.

NUECES COUNTY WATER CONTROL AND IMPROVEMENT DISTRICT NO. 3

et al., Appellees.

No. 977.

Court of Civil Appeals of Texas,

Corpus Christi.

June 30, 1976.

Rehearing Denied Aug. 30, 1976.

James F. McKibben, Asst. City Atty., Corpus Christi, Frank R. Booth, Austin, Allen Wood, Wood, Burney, Nesbitt & Ryan, Corpus Christi, for appellants.

Roger Butler, Corpus Christi, Victor W. Bouldin, Vinson, Elkins, Searls, Connally & Smith, Houston, for appellees.

OPINION

NYE, Chief Justice.

This is a suit for declaratory judgment brought by the plaintiffs for construction of the various water rights of the parties. The City of Corpus Christi and the Lower Nueces River Water Supply District as plaintiffs sued the Nueces County Water Control and Improvement District No. 3 as defendant to adjudicate the relative rights, priorities and values claimed by the parties.

Trial was before a jury which was ultimately dismissed prior to the entry of judgment by the trial court. All parties appealed from the entry of judgment.

The suit was originally filed in April of 1964. The controversy relates to certain water rights claimed by the parties to divert water from the Nueces River near Calallen, Texas. The City and the Lower Nueces River Water Supply District (hereinafter called Supply District) appeal complaining principally of that part of the judgment which authorizes the board of directors of the Nueces County Water Control and Improvement District No. 3 (hereinafter called Robstown District) to change the use of the water appropriated for irrigation purposes to a superior use of domestic and municipal purposes when in the opinion of the Board of the Robstown District the welfare of the District may require. The City and the Supply District also appeal from that portion of the judgment which assigns a specific quantity of water to the Robstown District's water rights under C.F. 70. The City further appeals from that part of the judgment which limits the City's water rights under C.F. 64 and which authorizes the Robstown District to divert water from a certain natural enlargement occurring in the Nueces River. The Robstown District by cross-point complains of the trial court's judgment that assigned a superior priority to the City's water rights (C.F. 64) over their prior water right (C.F. 70).

The Robstown District (defendant appellee) is a conservation and reclamation district which owns and operates a water supply and irrigation system. This system furnishes all of the water to the City of Robstown in Nueces County and also a supply of water for irrigation of the surrounding land. The Robstown District claims the right to take water from the Nueces River under certified filing 70 and Permit No. 529. The Robstown District's diversion facilities are located in a natural pool in the Nueces River in Nueces County approximately one mile upstream from where the City's diversion facilities are located. The City obtains water pursuant to Certified Filing 64 and Permit No. 51.

Because this case involves appropriative rights under Certified Filings and Permits, a brief history of this system of appropriation will be helpful. The appropriative system was imported into Texas by the 1889 Irrigation Act (Acts 1889, 21st Leg., p. 100, Ch. 88, Gammel, Laws of Texas 1128). This Act provided that an appropriator could acquire a water right and fix a priority by diverting water from a stream, putting it to a beneficial use and by then filing with the County Clerk an affidavit and map depicting the diversion works and describing the proposed use.

In 1895, the Legislature rewrote the appropriation law (Acts 1895, 24th Leg., p. 21, Ch. 21, 10 Gammel, Laws of Texas 751 and divided the public waters of the state into 'ordinary flow and underflow' on the one hand, and storm or rain waters on the other. It also carried forward the 1889 provisions which required the filing of a map and affidavit of use by the appropriator. The Act also specified the items to be included in the sworn statement filed for record with the County Clerk. It required that the affidavit should show the approximate number of acres to be irrigated, the name of the ditch or canal, its size, capacity and location, the name of the appropriator, and the name of the stream from which water was to be taken. A map showing the route of the ditch or canal was to be attached to the affidavit. Upon filing with the County Clerk, the appropriator was required to proceed with diligence in the construction of his proposed works. Completion of the water works, following the filing with the County Clerk, constituted the perfection of the water right. In other words, the project was completed and a water right was perfected by the taking of the water into the system and conveying it through the canal as shown on the map to the place of intended use described in the sworn statement.

In 1913, the Legislature adopted the Burges-Glasscock Act (Acts 1913, 33rd Leg., p. 358, Ch. 171, 16 Gammel, Laws of Texas 358) which had state wide application. All waters in Texas streams to which prior rights had not attached were declared to be the property of the State of Texas. A Board of Water Engineers (the predecessor agency to the present Texas Water Rights Commission) was created. The 1913 Act gave rise to the term 'Certified Filing' (C.F.). It required the County Clerk of the respective counties to prepare certified copies of all instruments that were on file in his office relating to the appropriation of public waters and forward them to the office of the Board of Water Engineers, where they were filed and serially numbered.

The 1913 Act introduced the 'Permit System' which was placed under the control of the Board of Water Engineers. The County Clerk's filing procedure was then superseded and an application to the Board of Water Engineers for a 'permit' to appropriate water was substituted therefor. In the case at bar, appropriative rights are involved, these being mainly C.F. 64 and Permit No. 51 belonging to the City and C.F. 70 and Permit 529 belonging to the District.

The City of Corpus Christi began using the Nueces River as a municipal water supply in 1892 or 1893. In 1892, the City entered into a contract with Jaeger and McMullen whereby they agreed to construct a complete system of water works for the City. In September, 1892, Jaeger and McMullen assigned the contract to the Corpus Christi Water Supply Company. On October 8, 1892, the City acquired a one acre tract on the Nueces River near Calallen, on which was to be built a diversion plant.

In 1892, a sack dam was built across the Nueces River near Calallen, Texas, to stop the intrusion of salt water up the river. In 1895, the 24th Legislature enacted House Bill 740 authorizing the Corpus Christi Water Supply Company to construct a dam to be substituted for the old sack dam across the Nueces River. The purpose of constructing the dam was to keep the salt water of the Nueces Bay from contaminating the sweet or fresh water of the Nueces River upstream from that point. The dam was located a short distance downstream from the City's pumping plant. The height of the dam as constructed was approximately eighteen (18) inches above mean sea level. The 'reservoir' (being that water contained upstream from the dam in the 10 1/2 mile enlargement) as was then created had a storage capacity of 928 acre-feet ¹ and a dependable yield ² of 4.4 C.F.S. ³

On February 1, 1910, this water supply system was purchased by and conveyed to the City. On December 26, 1913, the City filed with the County Clerk of Nueces County, a statement in conformity with the 1913 statute detailing its water works system. This sworn statement will hereinafter be referred to as certified filing 64. The statements made by the City which are contained in C.F. 64, are quite lengthy. They may be summarized as follows: 1) the City has, for the past twenty years, been the owner of a pumping plant and water works system whereby certain waters of Nueces River are diverted and pumped through a pipeline to the City of Corpus Christi; 2) the pumping plant is situated in Nueces County, Texas, on a one-acre tract owned by the City, fronting on the Nueces River at the town of Calallen; 3) the capacity of the present pipeline is 0.93 cubic feet per second; 4) between the Nueces Bay and a point at which the pump is situated, a dam was constructed of loose rock; 5) this dam serves to keep back the salt waters of the Nueces Bay; 6) at and above the point where the water is diverted is a natural enlargement and deepening in the Nueces River, ten and one-half miles long by about eighty feet in average width; 7) said portion of the river has a holding capacity of 40,400,000 cubic feet (928 acre-feet).

The certified filing (C.F. 64 above) and the permits ultimately obtained and held by the City which are material to the rulings of the trial court and to the questions before us include:

1) C.F. 64:$ The City is authorized to divert and use for municipal purposes water not to exceed 675 acre-feet per annum of the natural flow of the waters of Nueces River and waters occurring in the 10 1/2 mile natural enlargement and deepening of the river above Calallen, Texas, at a maximum diversion rate of 0.93 c.f.s. and with a priority date of 1895. (In this case, the City claims the diversion rate should be 4.4 c.f.s. The Robstown District claims the priority date should be 1913.)

2) Permit No. 51 was granted to the City on February 19, 1915, which authorizes the City to pump, divert and use from the water impounded and sweetened in the bed of the Nueces River in what is known as the 10 1/2 mile enlargement above the dam and from the normal flow not to exceed 4,054 acre-feet of water per annum at a maximum rate of diversion of 5.6 cubic feet per second of time and with a priority date of May 4, 1914.

3) Permit No. 933 was granted to...