Hidalgo County Water Control & Imp. Dist. v. Hedrick
Decision Date | 01 November 1955 |
Docket Number | No. 15407.,15407. |
Citation | 226 F.2d 1 |
Parties | HIDALGO COUNTY WATER CONTROL AND IMPROVEMENT DISTRICT No. 7, et al., v. Wyatt C. HEDRICK et al. |
Court | U.S. Court of Appeals — Fifth Circuit |
Neal King, Mission, Tex., Sawnie B. Smith, Edinburg, Tex., Hill, Lochridge, King & Hodson, Mission, Tex., for appellants.
Wilbur S. Cleaves, Houston, Tex., U. S. Algee, Laredo, Tex., Harbert Davenport, Brownsville, Tex., G. C. Mann, Laredo, Tex., Osce Fristoe, Harlingen, Tex., Henry H. Rankin, Jr., Edinburg, Tex., Raymond, Algee, Alvarado, Kazen & Woods, Laredo, Tex., for appellees.
John A. Pope, Jr., Rio Grande City, Tex., Rankin, Kilgore & Cherry, Edinburg, Tex., Fred J. Newland, Harlingen, Tex., Davenport & Ransome, Brownsville, Tex., for movant appellees.
Before TUTTLE, CAMERON and JONES, Circuit Judges.
Two Water Control and Improvement Districts, political subdivisions of the State of Texas, and two individuals, filed a complaint against a Texas corporation and a number of individuals, seeking a declaratory judgment and injunction. Federal jurisdiction rests solely on 28 U.S.C.A. § 1331, which is:
"The district courts shall have original jurisdiction of all civil actions wherein the matter in controversy exceeds the sum or value of $3,000, exclusive of interest and costs, and arises under the Constitution, laws or treaties of the United States."
The plaintiffs, appellants here, assert that they have certain rights to divert and use waters of the Rio Grande which inure by virtue of or are protected by the Treaty between the United States and Mexico effective November 8, 1945, and a protocol supplementary thereto, 59 Stat. 1219. This action was brought for a declaration of plaintiffs' asserted rights and to prevent the taking of waters from the Rio Grande by the defendants, who are the appellees here, in derogation of the rights of the plaintiffs.
In the complaint it is said that prior to the treaty waters of the Rio Grande were being diverted and used in the Counties of Hidalgo, Willacy and Cameron, Texas, for the irrigation of some 500,000 acres of land and for supplying water for domestic municipal and industrial purposes to a population of 250,000. Of the water so diverted and used a substantial portion had its origin in Mexico and it had begun to tap the tributaries in its territory to the lessening of the flow of the Rio Grande. Drought added to the diminution of the flow of the stream. Little of the periodic flood flows were used. Problems also existed with respect to the waters of the Colorado River. With these we are not here concerned.
In the treaty preamble the purpose was recited as being "to fix and delimit the rights of the two countries with respect to the waters * * * of the Rio Grande (Rio Bravo) from Fort Quitman, Texas, United States of America, to the Gulf of Mexico, in order to obtain the most complete and satisfactory utilization thereof * * *."
The treaty begins with definitions, the only one of which we need notice being:
"`To divert\' means the deliberate act of taking water from any channel in order to convey it elsewhere for storage, or to utilize it for domestic, agricultural, stock-raising or industrial purposes whether this be done by means of dams across the channel, partition weirs, lateral intakes, pumps or any other methods." Treaty, Art. 1(d).
The International Boundary Commission, set up under a prior treaty, was continued with new powers and duties under a name changed to the International Boundary and Water Commission. An allotment of the waters of the Rio Grande was made by the treaty between the two countries. Agreements were made for the construction of dams and for the study and planning of flood control works plants for generating electric current. Regulations were contemplated to provide for water conservation programs.
The claim of plaintiffs is based upon and solely upon the treaty and particularly upon Article 9 of the treaty which provides:
By a protocol between the two governments, an agreement was made specifying the jurisdiction of agencies of the respective governments as to the construction or use of the works required in the performance of the treaty. The protocol does not contain any provision that has application to the problems here presented. In the Resolution of the Senate ratifying the treaty it was stipulated:
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