Hoefs v. Short

• Court: Texas Supreme Court
• Writing for the Court: Cureton
• Citation: Hoefs v. Short, 273 S.W. 785, 114 Tex. 501, 40 A.L.R. 833 (Tex. 1925)
• Decision Date: 13 May 1925
• Docket Number: (No. 3068.)
• Parties: HOEFS et al. v. SHORT.

Page 785

273 S.W. 785

HOEFS et al. v. SHORT.

(No. 3068.)

Supreme Court of Texas.

May 13, 1925.

Error to Court of Civil Appeals of Eighth Supreme Judicial District.

Suit by J. C. Short against Otto Hoefs and others. To review the judgment of the Court of Civil Appeals (190 S. W. 802), affirming a judgment for plaintiff, defendants bring error. Affirmed.

Clay Cooke, of Fort Worth, for plaintiffs in error.

J. F. Ross, of Pecos, for defendant in error.

CURETON, C. J.

The locus of this controversy is in Reeves county, in the arid or semiarid region, where irrigation is necessary for agricultural purposes. The parties will be designated as in the district court. Suit was brought by J. C. Short against Otto Hoefs and three others of the same name, for the purpose of enjoining them from constructing a dam in Barilla creek and diversion ditches therefrom, in such manner as to prevent the residue of the water in excess of 100 second feet from passing down the channel of the creek to the dam and ditches of the plaintiff, located below and north of those of the defendants. The injunction was granted by the trial court, and the judgment affirmed by the Court of Civil Appeals. The case is reported in 190 S. W. 802, and it is unnecessary for us to make a complete statement of the case.

The effect of the proposed constructions of the defendants would have been to take all of the water out of Barilla creek and convey it to their own lands, and to prevent Short from receiving any of the water of the stream. The primary and fundamental question is whether or not Barilla creek is a stream to which irrigable rights attach.

The plaintiff's section of land No. 58, block 13, H. & C. N. R. R. Co. survey, is crossed by Barilla creek. This stream is fed by the rainfall collected within its watershed, an area of approximately 350 square miles, or about 225,000 acres, in the foothills and mountains lying south of his land. The creek runs only after rainfall, but when it runs it flows in a well-defined channel, with well-defined banks and bed, from a point south of the plaintiff's lands to a point extending below and north of his lands some distance. This well-defined channel, banks, and bed extend up the stream from below plaintiff's lands as far as the witnesses have gone, about 70 miles. The channel is from 3 to 15 feet deep, from 40 to 100 feet wide, and, if full, would carry as much as 4,000 second feet of water. It contains boulders and gravel, and but little, if any, vegetation. One witness said for 50 years it had not had enough dirt to grow grass. The stream flows when it rains, from 1 to 22 times each year, at more or less regular seasons. After rainfall it runs from "a day or two" to "a good while," and the water sometimes stands in holes for as long as two weeks. According to the testimony, Lympia Canyon runs into Barilla creek, and we infer that the creek is in reality an extension of the canyon where the latter passes out into the valley or plain. The creek sometimes has water in it when there has been no rainfall in the immediate vicinity. This water comes from Lympia Canyon.

The evidence shows that the water comes down Barilla creek in such volume that the whole neighborhood would have plenty of water if it was divided according to the land which each man has. The evidence is uncontradicted that the water comes down Barilla creek with sufficient regularity, one year after another, to make it valuable and useful and beneficial for agricultural purposes. One of the witnesses states that, while it does not come down on the same days each year, it comes somewhere about the same time; that the water comes when it rains; that rains generally fall, and that there are certain months when it is more likely to rain than other months. One of the witnesses testified that the water frequently comes down the Barilla when there has been no rain in that immediate vicinity, from rainfall in the mountains 50 or 60 miles above. The testimony shows that two average good overflows with what rains that fall will make good crops in the Barilla country.

We judicially know, as a matter of common knowledge, the natural features of the state, including the general location of its mountains and the courses of its rivers. Chamberlayne's Handbook on Evidence, §§ 352, 355; G., C. & S. F. Ry. Co. v. State, 72 Tex. 404, 409, 10 S. W. 81, 1 L. R. A. 849, 13 Am. St. Rep. 815; Giddings v. Day, 84 Tex. 605, 608, 19 S. W. 682; The Montello, 11 Wall. 411, 416, 20 L. Ed. 191; Greene County v. Clay County, 135 Ark. 301, 205 S. W. 709, 710. We therefore know that Lympia Canyon is located in the Trans-Pecos Mountains, which are a part of the Rocky Mountain System. It rises in the Davis Mountains, southwest of Fort Davis, cuts entirely across these mountains, and flows in a northeasterly direction until it enters the syncline or trough separating the Davis and Barilla Mountains. The size and importance of the canyon as a physiographic feature is beyond question. It is a part of one of the substantial drainage systems of the mountains of that area.

It is true that the age and size of the canyon and the fixed course of the stream within its canyon or valley walls does not establish a channel for Barilla creek at any particular locality after the canyon passes into the plain, but it does show beyond controversy that Barilla creek is a part of a stream and drainage system literally "as old as the hills," with a source of water supply as fixed and permanent as the rainfall on the watershed of Lympia Canyon

The major contention of the defendants is that the waters of Barilla creek are mere surface waters, to which water rights do not attach.

It is obvious from the evidence that this defense is untenable. The waters of Barilla creek are not diffused over the surface of the ground, but are accustomed to flow in a well-defined channel, in a stream, which, though intermittent as to flow, has a well-defined and permanent existence. They are therefore not surface waters, but are the waters of a stream. 27 Ruling Case Law, p. 1137; 3 Farnham on Waters, § 878; 1 Kinney on Irrigation, § 318. We are of the opinion also that Barilla creek is a stream of such character that water rights attach to it.

The evidence shows without controversy that Barilla creek has a substantial existence, with a well-defined channel, with banks and bed, and in times of rainfall, flowing water. The location of the channel and banks is not ephemeral in character. They were there in some form, more or less defined, in their present location, in every part of the stream, as far back as the earliest recollection of the witnesses. Certainly some parts of the present channel are very old, for no witness refers to any abandoned channels in the valley. Besides, the evidence, though brief, shows considerable age for certain sections of the channel. Its denuded condition, absence of soil and vegetation, and presence of boulders and gravel, show without question the long persistence of a current where the channel is now located. In addition to this, the witness Randolph testifies to a feature which evidences both age and stability for the channel. In part he says:

"It is a fact that along the draw below the `U' dam and above Hoefs' dam the banks of Barilla draw immediately beyond where the draw is washed out are higher than the land further away; there is a depression on each side of the draw. The draw is on what you would call a ridge. The banks are higher than either side."

This evidence clearly shows that the stream in the section described has the familiar natural levees made by deposition in flood time. Tarr's College Physiography (1st Ed.) p. 146; Cleland's Geology, p. 123; 1 Chamberlain and Salisbury's Geology, p. 188. This process is necessarily a slow one, and requires both stability and time for its accomplishment.

It is plain, we think, that the channel of Barilla creek is of such substantial, stable, and permanent character that its existence is easily recognized, and that rainfall on its watershed in sufficient quantities will produce a flow of water in this channel. The evidence without dispute shows that rain falls on this watershed at certain seasons with a fair degree of regularity, and it is admitted:

"That the waters which from time to time flow down Barilla draw are sufficient in volume, while not regular, to be valuable for irrigation purposes."

This satisfies every legal requirement as to permanency of source of water supply, and shows the waters of Barilla creek are not mere surface waters.

When it is said that a stream in order to be a natural water course to which water rights attach must have bed, banks, a current of water, and a permanent source of water supply, we have only described in detail such physiographic and meteorological characteristics as make the use of the stream for irrigation practicable. When it is once shown that the waters of a stream are so confined and persistent in their course, and flow with such frequency and volume that it is both practicable and valuable to irrigate therefrom, it is a stream to which such water rights attach.

With reference to the phrase "definite and permanent source of supply of water," frequently used by the courts as describing a necessary requisite of an irrigable stream, all that is meant is that there must be sufficient water carried by the stream at such intervals as may make it practicable to irrigate from or use the stream.

Rain falls on the watershed of Barilla creek from 1 to 22 times each year, in sufficient volume to permit irrigation from the stream. This is a permanent source of supply. The watershed is permanent, the meteorological laws which cause the rain to fall there are permanent, and the stream bed, by which the waters reach the locality in controversy, is to all intents and purposes permanent. But more convincing still than these is the admitted fact that the rain does fall and run down Barilla...