Humphreys-Mexia Co. v. Arseneaux

• Decision Date: 22 June 1927
• Docket Number: (No. 3900.)
• Citation: 297 S.W. 225
• Parties: HUMPHREYS-MEXIA CO. v. ARSENEAUX et al.
• Court: Texas Supreme Court

Page 225

297 S.W. 225

HUMPHREYS-MEXIA CO. v. ARSENEAUX et al.

(No. 3900.)

Supreme Court of Texas.

June 22, 1927.

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

Suit by the Humphreys-Mexia Company against J. Arseneaux and another. Judgment for defendants was affirmed by the Court of Civil Appeals (244 S. W. 280), and plaintiff brings error. Affirmed.

C. S. Bradley, of Groesbeck, and Vinson, Elkins, Wood & Pollard, of Houston, for plaintiff in error.

Harman & Parker, of Groesbeck, and E. B. Robertson, of Fort Worth, for defendants in error.

CURETON, C. J.

This suit was instituted by plaintiff in error, Humphreys-Mexia Company, against defendants in error Oil Well Water Company and J. Arseneaux for the purpose of enjoining the last named parties from pumping, drawing off, diverting, selling, or otherwise disposing of water from a certain reservoir made by a dam across the Navasota river, constructed by the former. The trial was upon hearing of an application for a temporary injunction, which was refused. The case was appealed, and the Court of Civil Appeals affirmed the judgment of the trial court. 244 S. W. 280. The map attached, drawn under our direction from two maps introduced in evidence and the testimony of the witnesses, represents in a general way the locus of the controversy and some of the points to which the witnesses referred.

There were four dams constructed by the oil company for the purpose of obtaining water for the operation of its extensive drilling operations in the Mexia oil field: one dam about one mile below the area marked

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"Reunion Grounds" on the map; one at the "Reunion Grounds" as indicated; one between the J. Pinkard and G. B. Echols tracts of land, designated as dam No. 2; and another at Comanche crossing. Since there are four different Echols tracts of land referred to in the testimony and shown on the maps in evidence, we have designated the G. B. Echols and J. Pinkard tracts as oil company tracts, although the only rights claimed by the oil company as to this land was to construct dam No. 2 between the surveys, and of course impound the storm waters of the river. The water company, by which name we will refer generally to the defendant in error, owned all the riparian rights in the Nick Echols, George Echols, and Joe Echols surveys, and for convenience we have designated each on the map "Water Company Tract." (There being no facts developed against Arseneaux, he passes out of the case, and will not be further noticed.) The effect of the construction of the four dams named, only three of which are shown on the map, was to impound the waters of the Navasota river from a point about one mile below the Reunion Grounds to a point, according to the testimony of Col. Humphreys, between eight and ten miles up the river. Each of the several dams, when the impounded water reaches the level of its spillway, backs the water to the foot of the next succeeding dam above. The effect of the construction of dam No. 2, which together with the reservoir which it creates forms the basis of the subject-matter of this litigation, was to back the water up the river for a distance of 17,600 feet, to the foot of the dam built at Comanche crossing.

Some months after dam No. 2 was constructed by the oil company, the water company built a pump station at the point indicated on the map, from which it pumped water from that section of the Navasota river lying between the dam at the Comanche crossing and dam No. 2, and sold it to concerns drilling oil wells in the Mexia field, carrying its pipe lines altogether some five miles or more, and delivering water on lands out of an original riparian survey, but which by subdivision had been cut off from contact with the river. The water company claimed the right to do this by virtue of their riparian proprietorship of three tracts of land designated on the map as "water company tracts."

On the other hand, the oil company claimed the right to construct dam No. 2 and impound the waters of the river, as it did do, by virtue of a statutory appropriation of the flood waters of the stream, granted by the state board of water engineers.

The plaintiff in error alleged and contended that the Navasota river was not a natural flowing stream; that it flowed only during rainy seasons from storm and flood waters; that the storm and flood waters constituted and were unappropriated waters of the state, subject to the exclusive appropriation of those complying with the provisions of the statutes relative to the same; and that, since it had complied with these statutes, and obtained the permit to use these waters, it was entitled, under the law, to the exclusive right to the impounded waters against the defendant in error; and charged that the water company, in thus diverting the water from the reservoir created by the construction of dam No. 2, was violating its rights and trespassing upon its property, for which it had no adequate remedy at law. Plaintiff in error alleged that the water company was without lawful authority to take and sell the water, as it was doing, for use upon nonriparian land; that the acts of the water company constituted a wrongful diversion of the water for purposes not authorized by law, and that this was an unlawful trespass upon the oil company's rights, for which it had no adequate remedy.

The evidence showed that it did obtain a permit from the board of water engineers of the state to appropriate the storm and flood waters in Navasota river, in Limestone county, to the extent of 100 acre-feet of water per annum, and to construct a storage dam in the bed of the river, which in this particular case is dam No. 2 shown on the map. The dam, as authorized, was to be constructed in a substantial way, of rock and concrete, 120 feet in length, 8 feet wide at the bottom, 3 feet wide at the top, and 6 feet high; thereby creating a reservoir with an average width of 41 feet, a length of impounded water of 17,600 feet, with an average depth of stored water of 4 feet, and having a storage capacity of 66.2-acre feet. The dam was constructed as authorized at a cost of from $7,500 to $10,000.

The permit granted the oil company authorized it to impound only "public waters of the state to consist of the storm and flood waters of the Navasota river in Limestone county," and was expressly prohibited from impounding "any part of the normal flow of said stream."

In addition to the permit from the state, the oil company obtained from G. B. Echols and wife and the heirs of Pinkard the perpetual right to construct and maintain dam No. 2 between their premises, shown on the map. The oil company, however, did not bring this suit upon the theory that it had any riparian rights in the river, but solely upon rights claimed by virtue of the issuance to it of the water permit by the board of water engineers. Its contention in fact was that the Navasota river was not a riparian stream. Its position below and here is well stated in its first proposition, as follows:

"Appellee's defense in this suit being based upon alleged claims to riparian rights, and the Navasota river not being a water course to which such rights attach, the use of its flood waters are within the control of the Legislature, and, appellant having lawfully appropriated same, appellee should be enjoined from diverting it from appellee's reservoir." (Italics ours.)

The water company did not claim under any rights by appropriation, but asserted the right to pump the water out of the river and sell the same for mining purposes on both riparian and nonriparian land, purely as a riparian proprietor.

The oil company had no kind of conveyance, easement, or evidence of any kind or character of any right to the bed of the river adjacent to the three tracts of land marked "water company tracts," or adjacent to the intervening tract, which we have marked on the map "unidenitified," since no name is given it on either of the maps introduced in evidence. The oil company, in so far as this record shows, had no type of right to back up the water above the corner of the J. Pinkard and S. Medlock tracts, shown on the map; and as to the space between the lower boundary of Nick Echols' 25-acre tract and the corner of the Pinkard and Medlock tracts, referred to, its right extended, in so far as any conveyance is shown, only as far as the rights of the Pinkard heirs extended, which was only to the middle of the stream. So we may correctly say that, in so far as this record is concerned, the oil company had no conveyance, oral or written, of any easement or right to impound waters up the river from the lower boundary of the Nick Echols 25-acre tract, unless, of course, the permit granted by the board of water engineers gave it that right.

On the trial of the case it was admitted "that the boundary lines between the respective owners extended to the center of the stream." We will dispose of the case upon this admission, without determining whether or not the stream is in fact a public or private one.

The trial court no doubt found, and the Court of Civil Appeals quite correctly concluded, that:

"The proof shows that the river is fed at its source by springs and tributary streams; that along its course springs exist, at least some of which never entirely fail; that a well defined channel, cut by the force of the flowing water, exists; that the banks are clearly marked; and that the river wanders to another stream into which its waters are discharged; that its course is permanently and clearly marked everywhere by a bed naturally made by the waters; that during certain seasons of the year the river regularly flows without intermittance; that in extremely dry summers it stands in holes, but is never absolutely dry. Such a stream is a natural water course in which the water moves from its source to its mouth."

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