Hoefs v. Short

• Court: Texas Court of Appeals
• Writing for the Court: Higgins
• Citation: Hoefs v. Short, 190 S.W. 802 (Tex. App. 1916)
• Decision Date: 23 November 1916
• Docket Number: (No. 625.)
• Parties: HOEFS et al. v. SHORT.

190 S.W. 802

HOEFS et al. v. SHORT.

(No. 625.)

Court of Civil Appeals of Texas. El Paso.

November 23, 1916.

Rehearing Denied January 5, 1917.

Appeal from District Court, Reeves County; S. J. Isaacks, Judge.

Suit by J. C. Short against Otto Hoefs and others. From the judgment, the defendants appeal. Affirmed.

See, also, 178 S. W. 11.

Clay Cooke, of Pecos, for appellants. Ross & Hubbard, of Pecos, for appellee.

HIGGINS, J.

This suit was brought by Short against appellants, Otto, Rudolph, Edwin, and Arthur Hoefs. The material allegations of plaintiff's petition are substantially as follows: That he is the owner of section 58 in block 13, Houston & Great Northern Railway Company survey, which is crossed by an intermittently flowing stream called Barilla creek, situated in the arid or semiarid region of the state, where irrigation is required to grow crops; that said creek is fed by rains falling within its watershed, which lies south of his land; that the creek flows in a well-defined channel, with well-defined banks and bed, to a point below and north of his land; that for many years there had been maintained a dam across the creek, known as the "U" dam, about two miles south of his land; that the residue of the water diverted by the dam for many years after its use for stock watering and irrigation has been permitted to flow back into the channel of the creek and has flowed to and across plaintiff's land; that the water so obstructed by the "U" dam and which flowed around the ends thereof and returned to the channel, in times of flood, aggregated much more than 100 cubic feet per second of time, and was ample to afford plaintiff the water to which he was entitled as well as to satisfy any superior legal rights which the defendants might have; that a permit had been legally issued by the board of water engineers to plaintiff permitting him to appropriate and divert 40 cubic feet of water per second for 24 days of 24 hours each annually from the flood or storm waters of the creek by means of a diversion dam located on his section for the purpose of irrigation; that plaintiff had begun and completed construction of his dam within the time required by law; that defendants own a section of land lying between plaintiff's land and the "U" dam, and are threatening to construct a dam on their land, together with a canal leading therefrom, which will result in diverting all the flood waters of the creek away from the channel of the creek and onto defendants' lands remote from the creek.

An injunction was asked restraining defendants from placing any dam or obstruction in the channel of the creek or any canal or ditch as an adjunct thereto in such manner as that same would divert and withhold from the plaintiff the water to which he was entitled by virtue of his appropriation.

Defendants pleaded that when they and their predecessors in title acquired their lands (describing same) the draw or depression known as Barilla draw did not exist thereon; that they were flat, or only slightly depressed, and they acquired their lands and the state parted with title thereto long before the draw washed out and before the Legislature attempted to reserve title to any waters flowing thereon, and there was no title in the state to any portion of said lands when plaintiff applied for his permit, and no title in the state to any waters flowing across said lands, and no easement or right of way therein by which plaintiff or the state could require defendants to run said waters across their lands, but the title was in defendants free and clear of any claim, reservation, easement, right of way, or any other right in the state; that the lands were owned in fee simple, and neither the state, the Legislature, nor the board of water engineers had the right to limit defendants in the enjoyment thereof, including the right to use the rainwaters falling upon and flowing across same; that the "U" dam was constructed in 1899 by the Wilson-Popham Cattle Company, and since that date all rainwaters reaching the depression had been held up and diverted; that all of said waters were actually appropriated and applied to beneficial uses by the said cattle company, and defendants long prior to the time plaintiff acquired his land from the state; that section 323, upon which is located the diversion dam complained of, was patented in 1874, and all of defendants' lands were patented and acquired by them long prior to the passage of any legislative act attempting to reserve or hold any rainwaters or other flowing waters, and as to such lands no such reservation had ever been or could be made; that at said times and long prior to the time alleged by plaintiff there was no draw or depression across defendants' lands, but all of the waters in the creek were held up, appropriated, and applied to beneficial uses at the "U" dam; that defendants have acquired from the Wilson-Popham Cattle Company a right to the use of the waters diverted at the "U" dam; that on January 24, 1914, defendants Otto Hoefs and said cattle company, being the joint owners of said diversion dam, filed their statement and plat in accordance with the act relating to the appropriation of waters proposing to appropriate at said point 100 cubic feet of water per second of time; that Barilla draw is without water most of the year, and has no water flowing therein, except from rainfall, and none of the rainfall collects or is collected below the "U" dam. Defendants further deny that the plaintiff had procured any appropriation according to law, and deny that there were any unappropriated waters subject to appropriation, and that plaintiff has no right of way across defendants' lands to carry water.

The cause came on for trial, and judgment was entered as follows:

"That the defendants, Otto Hoefs, Rudolph Hoefs, Edwin Hoefs, and Arthur Hoefs, be, and they hereby are, perpetually enjoined from placing or maintaining any dam or obstruction in or across the channel of Barilla creek or draw, or any canal, levee, or ditch as an adjunct thereto or leading therefrom in manner or form as that such obstruction, dam, canal, levee, or ditch will divert from or away from said Barilla creek in excess of 100 cubic feet of water per second of time, unless and until such obstruction dam, canal, levee, or ditch be so constructed and maintained as that the same will permit to flow unimpeded in and into the channel of said Barilla creek and down to the dam of plaintiff, J. C. Short, such excess of water over and above said 100 cubic feet per second (if any) as may be flowing in said channel, or would flow into and therein if not obstructed or impeded by defendants, up to 40 cubic feet of water per second of time for 24 days of 24 hours each, annually, and not to exceed 1,920 acre-feet of water per annum."

From this judgment the defendants prosecute this appeal.

The facts material to a consideration of the questions presented by this appeal are as follows:

Barilla creek or draw rises in the Davis Mountains many miles south of the land described in the pleadings, and extends in a northerly direction. The area drained by the creek south of the "U" dam is about 350 square miles, or 225,000 acres. It only has water in it when it rains; all the water flowing therein being rainfall. After a big rain, it will run a day or two. A light rain runs immediately off. It usually runs from one to twenty-two times annually, on an average about five or six times. There is testimony that the creek had a well-defined channel extending 50 or 60 miles above (south) the "U" dam and a well-defined channel below such dam to and through plaintiff's land. The channel at sections 323 and 58 is 40 to 75 feet wide at the present time and 5 to 10 feet deep. There is testimony that in 1885 or thereabouts there was not a very well-defined channel at plaintiff's land; that there was very little channel, if any, then across defendant's section 323, but the same stopped at the Old Ft. Stockton road, below the "U" dam, and the water then spread out over the country. It has since washed out 75 to 100 feet wide. In 1887 what is now the draw below the Stockton road (above the Hoefs' dam) was covered with soil and grass, with the exception of an occasional small hole or washout. There was then no continuous defined channel there. The waters then would spread out over the country at least one-half mile in time of freshet. Section 323, belonging to defendants, was crossed by the draw; likewise section 58, belonging to plaintiff. Defendants constructed a diversion dam upon section 323. This is the dam complained of, and is situate some distance below (north) the "U" dam. Plaintiff's dam was upon section 58. Plaintiff acquired section 58 in 1911, and has some of it in cultivation. On June 10, 1914, the board of water engineers issued to him a permit to annually appropriate 40 cubic feet per second for 24 days of 24 hours to be diverted from said creek at the diversion dam on section 58. Defendant Otto Hoefs owned section 323, upon which he and his codefendant had constructed the dam complained of. Said section 323 was patented in 1874, and title by mesne conveyances passed to the defendants. The "U" dam was about a mile south of the defendants' dam on section 323. The "U" dam was constructed in 1899 by the Wilson-Popham Cattle Company, and had been diverting water since its construction. On January 24, 1914, Otto Hoefs and said cattle company filed in the county clerk's office a sworn statement of water appropriation from the draw at the "U" dam, proposing to appropriate at said point 100 cubic feet of water per second of time, and filed certified copy thereof in the office of the board of water engineers.

Plaintiff finished his dam in October, 1914, and the defendants built the dam complained of in February, 1915. Both dams washed out, and the plaintiff had commenced rebuilding his, and defendants were intending to rebuild theirs, which,...