City of San Antonio v. Texas Water Commission

• Decision Date: 26 October 1966
• Docket Number: No. A--10989,A--10989
• Citation: 407 S.W.2d 752
• Parties: CITY OF SAN ANTONIO et al., Petitioners, v. TEXAS WATER COMMISSION et al., Respondents.
• Court: Texas Supreme Court

Page 752

407 S.W.2d 752

CITY OF SAN ANTONIO et al., Petitioners, v. TEXAS WATER COMMISSION et al., Respondents.

No. A--10989.

Supreme Court of Texas.

Oct. 26, 1966.

Boyle, Wheeler, Gresham, Davis & Gregory, A. W. Worthy with above firm, Robert Sawtelle, Sam S. Wolf, City Atty., J., Bruce Aycock, Asst. City Atty., San Antonio, for petitioners.

Clark, Thomas, Harris, Denius & Winters, Austin, for respondent Central Power & Light Co.

Waggoner Carr, Atty. Gen., Hawthorne Phillips, Stanton Stone, George C. Black and Roger Tyler, Asst. Attys. Gen., Austin, for Texas Water Commission.

Vinson, Elkins, Weems & Searls, Victor W. Bouldin, with above firm, Houston, for Guadalupe-Blanco River Authority.

Baker, Botts, Shepherd & Coates, John H. Sellingsloh, James G. Ulmer and Edward S. Howell, with above firm, Houston, for E. I. duPont and Union Carbide Corp.

Louis Saegert, City Atty., Seguin, for City of Seguin.

Frank B. Shepherd, City Atty., Cuero, for City of Cuero.

Howard Hartzog, Port Lavaca, for City of Port Lavaca.

Calvin E. Reidel, New Braunfels, for City of New Braunfels.

Gerald T. Bissett, Victoria, for Refugio County.

Kemper Williams, Jr., Fly, Cory, Moeller & Stevenson, Victoria, for City of Victoria.

SMITH, Justice.

This is an appeal by the City of San Antonio and the Water Works Board of Trustees of San Antonio from an affirmance by the Court of Civil Appeals of an adverse judgment in two consolidated suits against the Texas Water Commission and the Guadalupe-Blanco River Authority to set aside and vacate two orders of the Commission. The first order under attack, entered on July 5, 1957, granted an application by the Guadalupe-Blanco River Authority to appropriate water for municipal purposes from the Canyon Dam Reservoir in Comal County to the extent of 50,000 acre-feet per annum. The second order, entered the same day, denied an application by the City of San Antonio to appropriate 100,000 acre-feet of water annually from the same source for a like purpose. After trial the 98th District Court of Travis County, sitting without a jury, entered a judgment upholding the orders of the Commission. This judgment was affirmed by the Court of Civil Appeals. 392 S.W.2d 200. We affirm the judgments of the trial court and the Court of Civil Appeals.

On March 2, 1953, San Antonio tendered to the Board of Water Engineers a 'presentation' pursuant to Article 7496, ¹ Vernon's Annotated Texas Civil Statutes, ² for the purpose of determining the feasibility of their participation in the cost and construction of the Canyon Dam Project, a United States Corps of Engineers project on the Guadalupe River in Comal County, and the right to appropriate certain unappropriated water which was to be impounded in the Canyon Dam Reservoir. In an order dated April 2, 1953, the Board refused to accept and file the presentation on the ground that Article 1434a specifically forbade withdrawal of water from the Guadalupe watershed. San Antonio then brought suit attacking the constitutionality of Article 1434a, and, on April 5, 1954, the Board accepted San Antonio's presentation conditioned on the outcome of the pending appeal in the aforementioned suit. On September 13, 1954, the Board granted San Antonio's request for an extension of time in which to make further study of the proposed project. This study was made at a cost of $239,272.74 with the conclusion in 1955 that the Canyon Dam Project was the most feasible source of water available to the City of San Antonio. Thereafter, on October 26, 1955, San Antonio's contention with regard to the unconstitutionality of Article 1434a was sustained in the case of Board of Water Engineers of State v. City of San Antonio, 155 Tex. 111, 283 S.W.2d 722 (1955).

On January 11, 1956, San Antonio filed with the Board one of the applications involved here, seeking a permit to appropriate 100,000 acre-feet per annum of water for municipal purposes from the Canyon Dam Reservoir. It was contemplated that the water sought to be appropriated would be removed from the Canyon Dam Reservoir in Comal County and transported by pipeline to the watershed of the San Antonio River in Bexar County.

On March 6, 1956, the Guadalupe-Blanco River Authority filed its Application No. 1964 seeking a permit to appropriate 102,700 acre-feet of water per annum from the Canyon Dam Reservoir as follows: 50,000 acre-feet for municipal and domestic purposes; 32,000 acre-feet for manufacturing and industrial uses; and 20,000 acre-feet for irrigation.

The Board of Water Engineers, with the consent of all parties, consolidated both applications for a hearing which began on June 25, 1957, and continued through July 27, 1957. On July 5, 1958, the Board issued an order granting the application of GBRA to the extent of 50,000 acre-feet annually for municipal uses. On the same day, the Board issued an order denying the San Antonio application. In accordance with the order granting Guadalupe-Blanco River Authority's application on January 22, 1959, for municipal use, the Board issued Permit No. 1886 to Guadalupe-Blanco River Authority to the extent of 50,000 acre-feet per annum.

On September 23, 1957, the City of San Antonio and its Water Works Board of Trustees filed two appeals from the abovementioned orders in the 98th District Court of Travis County, Texas, under Article 7477. One appeal was from the order of the board denying San Antonio's application, the other appeal was from the order of the board granting the Guadalupe-Blanco River Authority application to the extent of 50,000 acre-feet. The cities of New Braunfels, Seguin, Gonzales, Cuero and Victoria intervened in the case as did E. I. duPont de Nemours & Company, Union Carbide Corporation, Central Power and Light Company, and the counties of Calhoun and Refugio. All of the intervenors aligned themselves with the position taken by the Guadalupe-Blanco River Authority. Although both appeals were given individual docket numbers, they were consolidated for trial purposes, and on June 19, 1964, judgment was rendered upholding the action of the Board in denying San Antonio's application and in granting the Guadalupe-Blanco River Authority's application and subsequent permit to the extent of 50,000 acre-feet.

Pursuant to a request by this Court, the parties herein have briefed the effect, if any, upon the merits of this cause resulting from the adoption of the Water Resources Administration and Development Act (Acts 1965, 59th Leg. p. 587, ch. 297). This question will be discussed with regard to Guadalupe-Blanco River Authority's motion to dismiss, infra.

The Board of Water Engineers became the Texas Water Commission in 1962 and the Texas Water Rights Commission in 1965. This agency will be referred to as the Water Rights Commission or the Commission; the Guadalupe-Blanco River Authority will be referred to as the GBRA.

The City of San Antonio and the Water Works Board of Trustees of San Antonio are petitioners before this Court; the Water Rights Commission, GBRA, and the various intervenors are respondents.

Motion to Dismiss

After writ of error was granted by this Court, GBRA, joined by all of the respondents, filed a motion to dismiss San Antonio's application for writ of error alleging six separate grounds for dismissal. We will, at this juncture dispose of the motion insofar as it relates to the order denying the San Antonio application. For purposes of convenience, we have grouped the grounds for dismissal into three categories.

Under the first category, the respondents contend that San Antonio has failed to assign error to various findings of fact of the trial court; and, therefore, this Court has no jurisdiction to review these findings, each of which, standing alone, would justify and support the orders of the Commission. Having failed to assign error in this Court on several of these findings which support the Commission's orders, respondents contend that San Antonio has failed to invoke the jurisdiction of this Court to render effective relief. We disagree. In Southern Canal Co. v. State Board of Water Engineers, 159 Tex. 227, 318 S.W.2d 619 (1958), we held that appeals from orders of the State Board of Water Engineers (Water Rights Commission) were to be tried under the substantial evidence rule. Under the substantial evidence rule the issue to be decided and on which evidence is to be heard is the Reasonableness of the Commission's order; this is a question of law and an appellate court cannot render its decision based upon facts found by a trial court because the legal test of the Reasonableness of an order of the Commission is whether it is reasonably supported by substantial evidence and not whether it is supported by a preponderance of the evidence. Furthermore, trial of fact issues by a judge or jury is avoided; it is the Commission's fact finding that is before the trial and appellate courts. Thomas v. Stanolind Oil & Gas Co., 145 Tex. 270, 198 S.W.2d 420 (1946); Jones v. Marsh, 148 Tex. 362, 224 S.W.2d 198 (1949); Board of Firemen's Relief and Retirement Fund Trustees of Houston v. Marks, 150 Tex. 433, 242 S.W.2d 181 (1951); Hawkins v. Texas Co., 146 Tex. 511, 209 S.W.2d 338 (1948). As was stated in Gulf Land Co. v. Atlantic Refining Co., 134 Tex. 59, 74, 131 S.W.2d 73, 82 (1939):

'* * * the court does not act as an administrative body to determine whether or not it would have reached the same fact conclusion that the Commission reached, but will consider only whether the action of the Commission in its determination of the facts is reasonably supported by substantial evidence.'

GBRA's second ground for dismissal is that San Antonio is without justiciable interest and standing to complain of the order of the Commission granting GBRA's application and permit. This ground will be discussed later in this opinion in connection with San Antonio's contention that the order granting Permit No. 1886 to GBRA is void because in granting said...