Humphreys-Mexia Oil Co. v. Arsenaux

• Decision Date: 24 June 1922
• Docket Number: (No. 8821.)<SMALL><SUP>*</SUP></SMALL&gt
• Citation: 244 S.W. 280
• Parties: HUMPHREYS-MEXIA OIL CO. v. ARSENAUX et al.
• Court: Texas Court of Appeals

Page 280

244 S.W. 280

HUMPHREYS-MEXIA OIL CO. v. ARSENAUX et al.

(No. 8821.)^*

Court of Civil Appeals of Texas. Dallas.

June 24, 1922.

Rehearing Denied October 14, 1922.

Appeal from District Court, Limestone County; A. M. Blackman, Judge.

Action by the Humphreys-Mexia Oil Company against J. Arsenaux and others. From a judgment for the defendants, plaintiff appeals. Affirmed.

C. S. Bradley, of Groesbeck, and Vinson, Elkins, Wood & Pollard, of Houston, for appellant.

W. S. Parker and E. B. Robertson, both of Mexia, for appellees.

HAMILTON, J.

On October 15, 1921, appellant, in compliance with the provisions of chapter 88 of the General Laws of Texas enacted by the Thirty-Fifth Legislature (Vernon's Ann. Civ. St. Supp. 1918, arts. 4991-5011½w) obtained a permit from the board of water engineers to construct a dam across the Navasota river in Limestone county, Tex., for the purpose of appropriating what is denominated in the permit as public waters of the state of Texas. The permit authorized the use of the storm waters and the flood waters of the river. Appellant constructed a dam in compliance with the provisions of the permit as to materials and dimensions. A reservoir was thus formed which was filled with water extending some distance up the river. Appellant owns no land along which or through which the river extends. It is a corporation engaged, among other things, in producing oil in what is known as the "Mexia Oil Fields." Its object in constructing the dam was to create a supply of water to be used in the drilling of wells in this territory, no portion of which, so far as the record discloses, is contiguous to the river.

On the 6th day of March, 1922, appellee obtained a lease of a strip of land 50 feet wide on each side of the river extending up and down and being contiguous to the river adjacent to the water held by the dam. This lease conveyed the surface rights to the land, the mineral rights having been previously conveyed to another lessee. The evidence discloses that appellee's sole purpose in acquiring the lease of the land on the two opposite sides of the river and adjoining it was to erect thereon pumping stations, power houses, and other equipment to be used in the business of supplying water to those engaged in drilling oil wells and in other like pursuits in the Mexia Oil Fields.

Appellee having completed the construction of its equipment, or a portion thereof, and having undertaken to lay pipe lines into the oil field, appellant applied to the district court for an injunction to restrain appellee from pumping, diverting, and conveying water from the reservoir created by appellant in the river in the manner above stated, and also seeking to enjoin appellee from selling or otherwise disposing of water or in any way interfering with appellant's exclusive use of water in the reservoir. After the court had heard the evidence, an order was entered refusing to grant the temporary writ of injunction prayed for by appellant, and from this order the appeal is prosecuted.

Appellant's appeal is rested upon the following propositions:

First. That the defense is based upon a claim of riparian rights, and that the Navasota river under the proof is not such a water course that such rights in relation to it may exist; for which reason it is contended the flood waters which it carries are within the control of the Legislature, and that such waters having been lawfully appropriated by appellant in compliance with statutory provisions, appellee should be enjoined from diverting any of them from the reservoir.

Second. The proposition is advanced that riparian rights cannot exist independent of the ownership of riparian land, and that the lease to appellee merely undertook to convey riparian rights without the transfer of the title of the riparian land, for which reason appellee is without the basis of any claim to such use of the Navasota river water as to authorize the diversion of it.

Third. It is contended that the land upon which the water appellee is attempting to divert from the river is to be used is nonriparian land, and for this reason appellee should be enjoined from making such use of it because this character of use would be in violation of appellant's rights as a prior statutory appropriator.

Fourth. Appellant asserts that, under the record, neither party to the suit owns the title to any riparian land contiguous to the Navasota river, and that both parties are seeking to use the storm and flood waters on nonriparian land and for nonriparian purposes; that, accordingly, no rights of riparian ownership are involved, and that since appellant is first in time of regular statutory appropriation, and appellee asserts no right whatever as a statutory appropriator, the injunction should issue.

Fifth. The last proposition is that the provisions of chapter 88, Acts of the Thirty-fifth legislature, relating to the issuance of permits of the kind upon which appellant asserts its rights as a statutory appropriator against appellee, are altogether valid and constitutional, and that the decisions of courts heretofore rendered declaring invalid certain sections of the law have no relation to the issues here involved.

As we view the case, the principal questions presented for consideration are these: Is the Navasota river, under the evidence in the case, a natural water course of the character that riparian rights in its waters exist in relation to the contiguous land? Is the lease conveying a strip of land on each side of the river to appellee an instrument which discloses a conveyance carrying with it riparian rights? Do the provisions of chapter 88, Acts of the Thirty-Fifth Legislature, validly sustain the asserted rights of appellant as a statutory appropriator of water from the Navasota river as against appellee, conceding the latter to possess the rights of a riparian owner?

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 intermittence; 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, and riparian rights to its waters inhere in the ownership of attingent lands. 40 Cyc. 553 et seq.; 27 R. C. L. 1062. In this connection the designation of the stream as a river is of forceful significance. The generic term "river" classifies and stamps the stream as a natural one having its own current of water which flows down from its source into the ocean or some other body or stream of water.

By the terms of the written lease under which appellee asserts its title to lands adjacent to that portion of the river which contains the waters of the reservoir constructed by appellant, all the surface rights in the land as distinguished from the mineral rights therein are conveyed to appellee. The lease expressly states that...