Fairbanks v. Hidalgo County

• Decision Date: 20 December 1923
• Docket Number: (No. 6712.)<SMALL><SUP>*</SUP></SMALL&gt
• Citation: 261 S.W. 542
• Parties: FAIRBANKS et al. v. HIDALGO COUNTY WATER IMPROVEMENT DIST. NO. 2 et al.
• Court: Texas Court of Appeals

261 S.W. 542

FAIRBANKS et al. v. HIDALGO COUNTY WATER IMPROVEMENT DIST. NO. 2 et al.

(No. 6712.)^*

Court of Civil Appeals of Texas. Austin.

December 20, 1923.

Rehearing Denied January 23, 1924.

Appeal from District Court, Travis County; Cooper Sansom, Judge.

Suit by Margaret McAllen Fairbanks and husband against the Hidalgo County Water Improvement District No. 2 and others. An order was made sustaining pleas to the jurisdiction of the court filed by defendant State Board of Water Engineers, and dismissing such defendant, and an interlocutory order sustaining plea of privilege filed by remaining defendant and transferring venue to another county, and from that judgment plaintiffs appealed. Affirmed.

Jas. A. Harley and Templeton, Brooks, Napier & Brown, all of San Antonio, for appellants Fairbanks.

W. A. Keeling, Atty. Gen., and W. W. Caves, Asst. Atty. Gen., for appellees Board of Water Engineers.

Kibbe & Perkins, of Brownsville, and Dougherty, Dougherty & Tarlton, of Beeville, for appellees Louisiana-Rio Grande Canal Co. and Hidalgo County Water Improvement Dist. No. 2.

Statement of Case and Pleadings.

BLAIR, J.

This is an appeal from an order of the district court sustaining certain pleas to the jurisdiction of the court, filed by the appellee state board of water engineers, and dismissing it from the suit, and from an interlocutory order sustaining a plea of privilege, filed by appellees Hidalgo county water improvement district No. 2 and the Louisiana-Rio Grande Canal Company.

The suit, in so far as this appeal is concerned, was brought by appellants, Margaret McAllen Fairbanks, joined by her husband, George Fairbanks, against the state board of water engineers, Hidalgo county water improvement district No. 2, and the Louisiana-Rio Grande Canal Company, to declare forfeited several water appropriations made by the said canal company and assigned by it to the Hidalgo county water improvement district No. 2, and to require the state board of water engineers to cancel and hold for naught the records and files in its office of the water appropriations made by the canal company assigned to the district, and under which the said district clothed itself with the right to commit the various trespasses alleged, because of an alleged failure of the parties to complete the appropriations as required by law.

We have found it very difficult to ascertain the exact grounds of complaint against the board of water engineers, since the pleadings deal in generalities and conclusions of the pleaders and are interwoven with allegations of fact whereby the pleaders seek to hold the other appellees in trespass of their lands, because of an alleged breach of a contract between them and appellants' predecessors in title relative to furnishing water for irrigation purposes. However, appellants suggest an abandonment of all pleadings as to the contract on this appeal, and we gather from the whole pleadings the following with reference to the board of water engineers. It is alleged:

That on April 24, 1910, appellee Louisiana-Rio Grande Canal Company, hereinafter designated canal company, properly filed a declaration to appropriate water from the Rio Grande river with which to irrigate 32,000 acres of land in Hidalgo county, Tex., and later, on July 16, 1910, declared to appropriate water for an additional 30,000 acres, and since then numerous other declarations were made by it under the irrigation laws of Texas.

That on December 31, 1920, appellee canal company, without the knowledge or consent of appellants, conveyed to appellee, Hidalgo county water improvement district No. 2, hereinafter designated district, all its rights in the various appropriations, and that the appropriations thereby became forfeited; but notwithstanding such forfeiture said district is in possession of and unlawfully entering, withholding, and trespassing upon appellants' land under and by virtue of this assignment, and diverting water to its use, to the prejudice of appellants, without their consent, without a lawful permit from the state of Texas, without securing a permit for lawful appropriation of the public waters, which the waters of the Rio Grande river have been declared to be, and without condemning the land and water rights as provided by law; that the declaration for water appropriation by the canal company was under the Acts of 1895 and subsequent acts, which declaration was legally filed in the office of the county clerk of Hidalgo county, as provided by the irrigation law, and later, in accordance with an amendment to such law, was filed and is on record in the office of the state board of water engineers, hereinafter designated board, in Travis county, Tex.; that the canal company, by assignment, abandoned its appropriation of water, and ceased to use or furnish water under it, and such right was therefore forfeited, and the appropriation void, and ought to be canceled; that the district forfeited its right as an appropriator of water, by a failure and refusal to complete its irrigation system, as required by article 4999, Revised Statutes, in that it neither built laterals or gates, nor furnished any facilities to supply water to appellants, as riparian water owners affected by said appropriation, as required by law.

That appellants had notified the board of the unlawful appropriations of water by appellees, but the board refused to require them to make a lawful appropriation, and the various acts and trespasses complained of by appellants against appellees canal company and district were done with the full consent and connivance of the board, which refuses to restrain the district in its unlawful use of the waters; that the maintenance and use of the unlawful files and records are prejudicial to appellants and other water owners, and furnish a shield by which appellees may defraud others, and are contrary to public policy, and therefore the board ought to be made to cancel them.

The prayer against the board is that they be required to cancel and hold for naught the records and files of the canal company under which the district is claiming the rights of water appropriation and possession of the lands, and for general and special relief.

The appellees, canal company and district, filed a plea of privilege to be sued in Hidalgo county. The plea of privilege was controverted by appellants solely upon the ground that venue as against the board of water engineers was fixed by law in Travis county, in a suit where it is a necessary or proper party, and that being true the other appellees could be joined with it there. So, if the pleas of the board of water engineers that the court had no jurisdiction over it in this suit be sustained, then as a matter of course the plea of privilege should be sustained.

The board of water engineers filed three separate pleas to the jurisdiction. The first plea was to the effect that, in so far as this was a suit against said board, it was a suit against state officers and the court was without jurisdiction to grant relief. The second plea was to the effect that, as this was not a suit seeking relief concerning or in respect to any decision, rule, rate, charge, order, or act of regulation made by said board, the court was without authority to hear it. The third plea was to the effect that the court was without jurisdiction to make an order with reference to canceling the records in its office because the board had no authority or power to cancel said records and was charged with no duty in respect thereto, but that, if it did have any such power, the exercise of the same was discretionary with said board.

The court overruled the first plea to the jurisdiction filed by the board of water engineers, but sustained its second and third pleas, and dismissed the board of water engineers from the suit. Thereupon the plea of privilege of the Hidalgo County Water Canal Company was sustained and the case ordered transferred to the District Court of Hidalgo County. To these several actions of the court plaintiffs excepted and gave notice of appeal.

Opinion.

Numerous assignments are made by appellants in their brief, but it is conceded that only one question is presented by this appeal for determination. The question is: Is the state board of water engineers a necessary or proper party to this suit under appellants' pleadings? No evidence was introduced upon the hearing of the pleas to the jurisdiction of the court presented by the board; hence it must be determined from the allegations of appellants' petition whether it is a necessary or proper party to the suit. In other words, does the petition allege a cause of action against the board of water engineers? Appellants controverted the plea of privilege solely upon the ground that their cause of action against the board was one authorized to be filed by the statutes, and that the statutes in such cases fixed venue as against it in Travis county, the seat of the state government, and headquarters for the board. Appellants contend that, having properly fixed venue as to one defendant concerning the same matter, they were entitled to invoke the provisions of article 1830, subd. 4, of the Revised Statutes as to venue against the other defendants. Strictly construing the controverting plea, if it should be held that appellants did allege a cause of action upon a matter not specified by the statutes against the board, and that it could properly be maintained, it would avail appellants nothing, as they are limited to the exact grounds set forth in such controverting plea to fix venue.

However, we are of the opinion that the petition alleged no cause of action against the board of water engineers, either for a failure to perform some duty required of it by statute or otherwise, and it is the well-settled law that a plea to the venue is properly sustained to a petition which states no cause of action against the only defendant who lived in the county where...