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