Hidalgo County Water Imp. Dist. No. 2 v. Cameron County Water Control & Imp. Dist. No. 5

• Citation: 253 S.W.2d 294
• Decision Date: 12 November 1952
• Docket Number: No. 12452,12452
• Parties: HIDALGO COUNTY WATER IMPROVEMENT DIST. NO. 2 et al. v. CAMERON COUNTY WATER CONTROL & IMPROVEMENT DIST. NO. 5 et al.
• Court: Court of Appeals of Texas. Court of Civil Appeals of Texas

Page 294

253 S.W.2d 294

HIDALGO COUNTY WATER IMPROVEMENT DIST. NO. 2 et al. v. CAMERON COUNTY WATER CONTROL & IMPROVEMENT DIST. NO. 5 et al.

No. 12452.

Court of Civil Appeals of Texas, San Antonio.

Nov. 12, 1952.

Rehearings Denied Dec. 10, 1952.

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

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

NORVELL and POPE, Justices.

This appeal is from an order granting a temporary injunction. The basic question involved is whether or not there is a sufficient factual basis in the record for the issuance of a temporary injunction to maintain the status quo, and whether or not the status quo is in fact preserved by the order. Subsidiary contentions are presented relating to an asserted lack of necessary parties, the efficacy of the suit as a class action, and the powers of the master in chancery appointed by the court. Numerous beiefs have been filed by the various appellants, but the contentions therein set forth relate in the main to the matters above referred to.

Another phase of the case was before us in July of this year and we denied an application for writ of prohibition. Hidalgo County Water Improvement District No. 2 v. Cameron County Water Control and Improvement District No. 5, 250 S.W.2d 941. We refer to said opinion in connection with the statement of the case.

The stated purpose of the injunction was to maintain the status quo with reference to the use of the scant waters of the Rio Grande under the facts stated and found by the district judge. Appellants attack the temporary injunction which controls the unrestrained pumping by water diverters. Some appellants, in argument to this Court, concede the power of a court to apportion waters in a proper proceeding, but deny that this is such an instance. Other appellants urge that water apportionment is beyond the judicial powers of a court. The authorities cited in our former opinion dispel such a spirit of hopelessness, and, as said by McKinney on Irrigation and Water Rights, Volume 3, 2d Edition, § 1532:

'In the determination of the rights of the respective parties, where the Court has jurisdiction of the parties and the subject matter of the suit, a court of equity has the power to prescribe the method to be used in measuring the water, and to locate a measuring box for distribution of the water. And in apportioning the water it is within the power of the Court to apportion the flow to which each party is entitled by periods of time rather than by a division of the quantity when such apportionment would best secure the rights of the parties. And having the power to make such a judgment or decree, the Court also has the power to enforce it, and to so regulate the use of the water by the respective owners as to protect the rights of each from infringement or impairment by others. This may be by way of injunction issued in the same suit determining the right.'

The same rule is announced in 30 Am.Jur., Irrigation, § 15, as follows:

'For the protection of the rights of several riparian irrigators, a court of equity may, in a proper case, apportion the flow of the stream in such a manner as may seem equitable and just under the circumstances. Thus, a court of equity has the power to apportion the flow of water in a stream to the respective owners by periods of time, rather than by a division of its quantity, so that each may have the full flow of the stream during such designated period, instead of a portion of the flow during the whole time, where the circumstances are such that a division in this manner would better conserve the rights of all the owners. This is especially so when the stream, instead of increasing as it goes toward the sea, constantly diminishes until it finally disappears. While the distribution of the waters of the stream among the riparian irrigators is most difficult where the stream is long, the riparian owners numerous, and the quantity of water limited, yet where each of the parties owns the same quantity of land of substantially the same character and their necessities and conditions are substantially the same, an equal distribution of the water of the stream between them will be made, on the ground that is metes out substantial justice as nearly as substantial justice can be attained. * * *'

The purpose of a temporary injunction is not the final adjudication of rights, but, in the exercise of a sound discretion, is the maintenance of the status quo. City of Texarkana v. Reagan, 112 Tex. 317, 247 S.W. 816; Crossman v. City of Galveston, 112 Tex. 303, 247 S.W. 810, 26 A.L.R. 1210; Southwestern Telegraph & Telephone Co. v. Smithdeal, 104 Tex. 258, 136 S.W. 1049; James v. E. Weinstein & Sons, Tex.Com.App., 12 S.W.2d 959; North v. Atlas Lime Co., Tex.Civ.App., 2 S.W.2d 956, 957; 24 Tex.Jur., Injunctions, § 253; 6 Tex.Jur., Ten Year Supp., § 253.

Appellants urge that there can be no status quo in the case of flowing waters, for once the water passes a given point, it is forever gone, and that which is lost, cannot be restored. The status quo was determined by the court after a full hearing lasting into the second week, during which time evidence was considered that is now before us in three volumes of the statement of facts, covering 1196 pages. That record included expert and other testimony showing the irrigated acres along the Rio Grande and the uses made of the river waters during the years between 1949 and the trial of the suit, as well as earlier years. The record shows further that since sometime before 1948, the water users along the Rio Grande voluntarily formed a Water Conservation Association to cope with the limited flow of the river by a self-imposed rationing among the users. A formula for rationing was developed and by use of the records of the International Boundary and Water Commission the flow of the river was ascertained and thus allocated to meet the needs declared by the users and submitted to the Association. From the reports submitted to the Association, a proration committee made its allocations. This is an over-simplification of the method used, but this system substantially met the needs of the users for a long continuous period of time and remained in operation until April 5, 1952, three days before this suit was initially filed. On April 5, 1952, the rationing committee went out of existence when the users refused to abide by the rationing schedules. The recitals in the decree abundantly reveal the long-standing status of water users and that status was continued in operation by the decree. Those recitals in part stated:

'3. Plaintiffs and Defendants are owners of land riparian to the Rio Grande below the western boundary line of the County of Hidalgo; or else claim and have long used the waters of the river under claim of lawful right, or are organized Districts charged by law with the duty of diverting the normal flow of the Rio Grande for the use and benefit of owners of land riparian to the Rio Grande; or to water users who claim such rights; and all Plaintiffs and all Defendants are entitled by law to their respective correlative shares of the normal flow of the Rio Grande below the western boundary of Hidalgo County, and have long used and exercised such right. Normal flow of the Rio Grande below the Sam Juan confluence near Rio Grande City, Texas, is commonly and generally considered to be, and for the purposes of this hearing is treated as being, all waters flowing in the channel of the river below the western boundary line of Hidalgo County when the rate of flow of the Rio Grande at Rio Grande City is less than 5,000 cubic feet per second.

'4. The Counties of Cameron and Hidalgo contain more than 275,000 inhabitants, substantially all of whom are dependent upon the waters of the normal flow of the Rio Grande below the western boundary line of Hidalgo County, for household, livestock, and other domestic uses, and for irrigation of their lands; and all other municipal and industrial uses. Due to increased consumption of said water in the Counties of Cameron and Hidalgo in recent years, and diminution of the flow of the Rio Grande due to construction of dams and reservoirs on Mexican and American tributaries of the Rio Grande, the actual flow of the Rio Grande at periods of highest consumption of said waters had been insufficient each year since 1948 to supply the needs of all water users entitled thereto, without some form of procedure for lawful distribution and control of diversions from the Rio Grande for such uses.

'5. During the years 1949, 1950 and 1951, control and distribution of the Rio Grande at periods of acute shortage was accomplished by voluntary agreement of the water users entitled thereto. Such agreements were not binding upon the water users, and were not intended as a measure of their respective rights, but had the effect of accomplishing reasonable use of the normal flow of the Rio Grande at periods of acute shortage in 1949, 1950, and, less effectively but without too serious complaints, in 1951; but since January 15, 1952, has completely railed of their purpose; and all efforts to procure voluntary distribution were abandoned on or about April 5, 1952.

'6. Due to an extended drought continuing from about December 1, 1951, to the date of this hearing, flow of the Rio Grande has been wholly insufficient to supply the needs of the water users, including Plaintiffs and Defendants herein, of the Counties of Hidalgo and Cameron, who are entitled to the use of said waters; and some form of control and distribution of said water has become necessary to provide for lawful distribution of the American share of the waters flowing in the channel of...