Freeland v. Peltier, 9594.

• Citation: 44 S.W.2d 404
• Decision Date: 29 October 1931
• Docket Number: No. 9594.,9594.
• Parties: FREELAND et al. v. PELTIER et al.
• Court: Court of Appeals of Texas

44 S.W.2d 404

FREELAND et al. v. PELTIER et al.

No. 9594.

Court of Civil Appeals of Texas. Galveston.

October 29, 1931.

Appeal from District Court, Brazoria County; M. S. Munson, Judge.

Suit by C. A. Freeland and others against R. S. Peltier and others. Judgment for defendants, and plaintiffs appeal.

Affirmed.

C. H. Chernosky, of Houston, and Rucks & Enlow, of Angleton, for appellants.

C. R. Wharton, of Houston, for appellees.

PLEASANTS, C. J.

This is a suit by appellants against appellees for injunction to restrain appellees from further pumping water from Austin bayou in Brazoria county for the irrigation of land of appellees on and riparian to said bayou.

The following full statement of the cause of action set out in plaintiffs' petition is copied from appellants' brief:

"That on or about the 23rd day of August, 1906, plaintiffs and the other members of their family purchased (and now own) approximately 1896 acres of land upon and riparian to said Austin Bayou, constructed a rice irrigation plant and canal thereon, together with other valuable improvements, and in the year 1907 planted and irrigated from said bayou approximately 600 acres of rice, and that they have, each and every year since said date, operated their said pumping plant and rice canal on said bayou and during each and every year have pumped and used from said bayou for rice irrigation purposes substantially all of the ordinary and normal fresh water supply from said stream, and that during each and every year thereof plaintiffs and their predecessors in title have had and held the continuous, uninterrupted, visible, adverse, exclusive and peaceable possession, use and control of all of the ordinary and normal and irrigable water supply of said Austin Bayou, pumping the said water from said stream into their said canal and irrigating and growing rice upon their said lands, by virtue of which plaintiffs have absolute title by limitation and by prescription to all of the normal and ordinary water supply and riparian waters in said Austin Bayou and also absolute title to all riparian rights in and to said bayou and the waters thereof at and near their said pumping plant.

"Plaintiffs further allege that on the 24th day of June, 1914, their sister, Sarah Jane Freeland, in behalf of herself and these plaintiffs as owners of said 1896-acre tract of land, filed with the county clerk of Brazoria County, Texas, a record of their appropriations of sufficient of the irrigable waters of Austin Bayou to irrigate portions of said 1896 acres of land for the growing of rice in accordance with and under the provisions of the law of this State in force at the time of such filing, and on the 26th day of June, 1914, filed a certified copy of such appropriations with the Board of Water Engineers of the State of Texas, in accordance with law, and that after said filings plaintiffs continued to operate their pumping plant and rice canal and to appropriate the ordinary and normal flow of the irrigable waters from Austin Bayou under and by virtue of their said appropriations each and every year from 1914 to the date of the filing of said petition, and, for more than three years, have had and held exclusive, continuous, adverse and peaceable possession, use and control of all of the normal and ordinary flow of irrigable waters in said bayou available for pumping at their plant, and that by virtue thereof plaintiffs have and hold absolute title to all of said water and riparian rights under and by virtue of three years limitation as provided by article 7592, Revised Statutes of the State of Texas.

"Plaintiffs allege that defendants own a tract of 822 acres of land situated on the opposite side of Austin Bayou to plaintiffs' land in the E. P. Myrick survey, Abstract 102, and that they are asserting some right, title and interest to the normal and ordinary flow of fresh and irrigable water in said bayou and to the riparian rights in said water in said stream by virtue of their ownership of said land; that defendants have constructed and are operating a pumping plant and irrigation canal upon their said land at a point almost directly opposite plaintiffs' pumping plant on said bayou, and are pumping and again threatening to pump from said bayou a portion of the normal and ordinary fresh water and irrigable water from said bayou for the purpose of irrigating rice upon their land for the year 1930.

"Plaintiffs allege that Austin Bayou is a stream of limited fresh water supply; that said bayou is tributary to Bastrop Bayou which emptied into the waters of the Gulf of Mexico; that said bayou is a stream of limited water shed and is comparatively short, having its source near the north line of Brazoria County and extending in a general southeasterly direction to its confluence with Bastrop Bayou and the Gulf of Mexico; that said stream is about 60 feet in width and six or eight feet in depth at the point where plaintiffs' pumping plant is situated and that said stream contains permanent water for about one and one-half or two miles above plaintiffs' pumping plant; that said stream is not a permanently flowing stream, but only flows during and for a short period after heavy rain falls; that following heavy rains and freshets at its source, said stream contains fresh water which continues fresh until mingled with salt water entering from below and that practically all of the fresh water supply in the upper reaches of said stream is subject to being pumped and can be pumped from plaintiffs' pumping plant and made available for their use in irrigation through their canal; that said fresh water supply is very limited and upon pumping the fresh water from the upper reaches of said stream the salt water entering said stream encroaches from below; that said stream only contains fresh water sufficient to irrigate from three to four hundred acres of rice annually, as shown by the experience of plaintiffs' upon said stream for a long period of years, and that when attempt is made to pump water from said stream sufficient to irrigate more than three or four hundred acres per annum the salt water encroaches into the upper reaches of said stream before the pumping season and rice season is over and that said rice crops are cut short or entirely lost. And plaintiffs allege that if defendants are permitted to appropriate and pump water from said bayou sufficient to irrigate three or four hundred acres of land that they will deplete said bayou of fresh water and plaintiffs' crop of 1931 will thereby be destroyed."

The defendants answered by general demurrer, special exceptions to plaintiffs' pleas of limitation and prescription on the grounds that they are too indefinite and do not state the facts relied on to support the pleas with sufficient clearness, and that the facts stated do not sustain a plea of prescription or limitation against defendants' right to use the water of the stream to irrigate their riparian land.

They further answered by general denial, and by special plea in which they aver that as owners of land on and riparian to Austin bayou they had the right to take water from that stream to irrigate their said land.

The cause was tried with a jury in the court below, and in answer to the only issue submitted to them the jury found that the plaintiffs had not taken and appropriated all of the normal flow of water in Austin bayou available at plaintiffs' pumping plant for any ten consecutive years between the years 1907 and 1924, taking "claiming and using said water visibly, continuously, peaceably, adversely, and uninterruptedly as their own against all persons who might have rights to take waters from said stream available to said pump."

The court refused to submit the issue of limitation of three years.

Upon return of the verdict judgment was rendered thereon in favor of the defendants.

The first proposition presented in appellants' brief is as follows: "Where an appropriator of water shall have filed an appropriation in accordance with the laws of this State in force at the time of such filing and shall have filed with the Board of Water Engineers certified copy of such appropriations as required by chapter 171 of the Acts of the Regular Session of the 33rd Legislature, and shall have made use of the waters under the terms of such permit for a period of three years after the enactment of section 83, Chapter 88, of the Acts of the Regular Session of the 35th Legislature, which became effective June 20, 1917, he shall be deemed to have acquired a title to such appropriations by limitation as against any and all riparian owners upon said stream; and since the undisputed evidence in this case shows that the plaintiffs were appropriators of water from Austin Bayou, beginning in 1907, and that on the 24th day of June, 1914, they filed an appropriation in accordance with the laws of this State in force at such time, and on the 26th day of June, 1914, filed a certified copy of such appropriation with the Board of Water Engineers as required by law, and further, since there was ample testimony to sustain a finding of the jury that plaintiffs, under the terms of such filing and for a period of more than three years after said Act of 1917 went into effect, made use of substantially all of the ordinary and normal flow of irrigable water from said stream, available to their pumping plant, the court should have submitted to the jury said issue of plaintiffs' right and title to said water and riparian rights in said stream under said three years statute of limitation, plaintiffs having excepted to said charge for failure so to do, and having requested the submission of said issue by special charge."

It is not amiss to here note that no assignments of error were filed in the court below, and that the complaints made in the motion for new trial upon which the proposition is based are not identical with those presented by the proposition. The motion for new trial...