Hidalgo County Water Imp. Dist. No. Two v. Cameron County Water Control & Imp. Dist. No. Five, 12453

• Decision Date: 16 July 1952
• Docket Number: No. 12453,12453
• Parties: HIDALGO COUNTY WATER IMPROVEMENT DIST. NO. TWO et al. v. CAMERON COUNTY WATER CONTROL & IMPROVEMENT DIST. NO. FIVE et al.
• Court: Texas Court of Appeals

Page 941

250 S.W.2d 941

HIDALGO COUNTY WATER IMPROVEMENT DIST. NO. TWO et al. v. CAMERON COUNTY WATER CONTROL & IMPROVEMENT DIST. NO. FIVE et al.

No. 12453.

Court of Civil Appeals of Texas, San Antonio.

July 16, 1952.

Strickland, Wilkins, Hall & Mills, Hill, Lochridge & King, Mission, Ewers, Cox & Toothaker, McAllen, Rankin, Kilgore & Cherry, Edinburg, for appellant.

Harbert Davenport, Sharpe, Cunningham & Garza, Brownsville, N. A. Colvin, San Benito, Johnson, Sloan, Phillips, Hester, Jenkins & Lewis, Kent, Brown & George, Harlingen, Rentfro, Rentfro & Vivier, Brownsville, for appellee.

PER CURIAM.

Relators have asked for writs of prohibition and injunction against O. E. Van Berg as Master in Chancery (sometimes called River Master), certain other persons and certain Water Control and Improvement Districts, and against the Judge of the 107th District Court, during the pendency of an appeal from an order of that court. The essence of their position is that the trial court's interlocutory order was essentially the appointment of a receiver or a trustee. An interlocutory order appointing a receiver may be superseded upon an appeal. Shell Petroleum Corporation v. Grays, 122 Tex. 491, 62 S.W.2d 113; Brown v. Faulk, Tex.Civ.App., 231 S.W.2d 743, 746. Relators then rely upon Article 2276a, Vernon's Ann.Civ.States., which exempts water improvement, water control, and water preservation districts from making a bond in the case of an appeal, and urge that this article even exempts them from making a supersedeas bond. They urge that they are given an automatic statutory supersedeas and that all acts of the trial court and his Master in Chancery, as empowered by the court, are superseded during the appeal. Herring v. Houston National Exchange Bank, 113 Tex. 264, 253 S.W. 813. They urge that the suit is a receivership with an incidental injunction, in which event the injunction also is superseded. Brown v. Faulk, Tex.Civ.App., 231 S.W.2d 743, 746.

A separate contention is also made that the perfection of the appeal deprives the trial court of all further control of the phase of the case before us and that unless prohibited the trial court might take further action or enter further orders in the case, which would interfere with the effective exercise of the jurisdiction of this Court.

The trial court's order states the facts of this case. There is not enough water in the lower Rio Grande. More than 250,000 people, their crops and livestock suffer from a drought. Drains upon the river have been so great that the water supply grows increasingly less as the river approaches the Gulf. The decree recognizes that all parties, including others in the same class, are entitled to their respective correlative shares of the normal flow of the Rio Grande. Since 1948, by reason of the erection of dams on both American and Mexican tributaries to the river, a water shortage has existed; but it has been coped with under a voluntary agreement of all users. Since January of 1952, the shortage has been so severe that voluntary inhibitions and self-control have broken down. The result has been that those on the higher reaches of the river have used water and those along the lower reaches in some instances have received none at all. The court found that some of the riparian owners, though legally entitled to a share of the water, have received nothing. The order recites further that some persons, including the City of Brownsville, are in grave danger of such shortage that the minimum drinking, health and sanitation needs will not be supplied.

The order further finds that though all are entitled to equal apportionment, that since April 5th not even voluntary control has been successful, and that upper riparian diverters, since March 1, 1952, have used the greater portion of the waters.

The order further recites that the Treaty between United States and Mexico at Washington, February 3, 1944, 59 Stat. 1219, apportioned the waters of the Rio Grande between users on the American side and those on the Mexican side of the river; that American users are entitled to a share of waters stored in a reservoir on the San Juan River in Mexico; that the International Boundary & Water Commission is willing to supplement the scant flow of the river by releasing waters from the reservoir for American use, but that between March 5th and March 31, 1952, when waters were released from the reservoir, some of the parties diverted the waters so that other persons down the river received none. Those are the facts before us as recited by the trial court's order.

The court established certain machinery to relieve this situation, and we think it may not be gainsaid that the situation is that of use by some persons of waters to such an extent that it deprives or will deprive others, equally entitled to the use, of a fair share or of any water at all. Relators urge that the machinery, though not so designated, was in fact a receivership in which event there was a supersedeas. Respondents reply that the machinery was an injunction, aided by a Master in Chancery.

The argument that the Master is a receiver seizes upon the following parts of the order: (1) The order recited that 'justice requires that the present scant flow of the Rio Grande be taken into judicial custody and administered and controlled, pendente lite, under reasonable rules and regulations prescribed by the court.' (2) The order recited that the correlative shares of available waters can not be enforced by prohibitory injunction, but required the prescribing and enforcing of just, reasonable and flexible rules, such as the court can modify from time to time, upon evidence and as reason and justice may require. (3) The order then ordered that all public waters of the river be taken into judicial custody to be administered in trust for all riparian owners, under orders of the court. (4) To administer the waters in trust, the court appointed a Master in Chancery and among his duties was the one:

'(c) Of enforcing all rules and regulations as prescribed by the Court; and recommending such amendments and additions thereto, as from time to time he may consider advisable, for hearing, considering and final action of the Court.'

The argument that the order of the court did not anme a receiver of trustee seizes upon the following matters:

(1) The petition in its prayer states that a prohibitory injunction can not do equity, but added, 'unless issued in the light of the special situation for which injunctive relief is sought.' (2) The order from which the appeal was perfected and from which relief by way of prohibitions is sought in this proceeding is based upon a prayer for the issuance of a temporary injunction following a restraining order. After asking for the preliminary injunction, the prayer continues with a request for the appointment of a Special Master, 'as prayed for by Plaintiffs.' The portion in italics, we think, referred to an earlier prayer for a Master following the granting of a restraining order, and that prayer asked that he be charged with the duty of taking into judicial custody all pumping plants and diversion works on the left or American bank of the river, of preparing rules and regulations for use of such plants and works, and of enforcing such rules. (3) The designation of the Master's powers listed four items, one of which was mentioned in connection with the evidences of a receivership or trusteeship, and stated that he should 'enforce all rules and regulations.' The other powers...