Jayne v. Imperial Irr. Co.

• Decision Date: 30 March 1910
• Citation: 127 S.W. 1137
• Parties: JAYNE v. IMPERIAL IRR. CO. et al.
• Court: Texas Court of Appeals

127 S.W. 1137

JAYNE v. IMPERIAL IRR. CO. et al.

Court of Civil Appeals of Texas.

March 30, 1910.

Rehearing Denied April 27, 1910.

Appeal from District Court, Pecos County; W. C. Douglas, Judge.

Action by Joe Jayne against the Imperial Irrigation Company and others. From a judgment for defendants, plaintiff appeals. Reversed and rendered.

Kennedy & Blackmon and W. C. Jackson, for appellant. D. W. Williams and Turney & Burges, for appellees.

JAMES, C. J.

Appellant's statement of the nature and result of the action, being admitted correct, is here adopted:

"On June 4, 1909, the appellant, Joe Jayne, filed in the General Land Office his application to purchase eight sections of school land in Pecos county, Tex., including section No. 2 in block No. 9 of the H. & G. N. Ry. survey. The land was awarded him on his application. He made settlement upon the land and filed his affidavit of settlement in the Land Office, all within the time required by law, and was at the date of the institution of this suit and the date of the trial of this cause an occupant of said land under his contract with the state. On January 31, 1908, one D. Zimmerman filed in the county clerk's office of Pecos county his affidavit, declaring and announcing his intention to appropriate for irrigation purposes the unappropriated waters of Pecos river and other streams, and the storm and rain waters of the Santa Rosa, Santa Lucia, and other ravines and depressions, watersheds, etc., in Pecos county, and setting forth his canal route and the location of a storage reservoir. The reservoir site, as described in the affidavit, embraced 404.43 acres of section No. 2 in block No. 9 of the H. & G. N. Ry. Company survey, which was at that time public school land, and being one of the sections thereafter purchased by appellant from the state. On the 28th day of July, 1908, D. Zimmerman transferred to appellee Imperial Irrigation Company all his rights, etc., under said appropriation. On August 1, 1908, Imperial Irrigation Company also filed its affidavit of appropriation in the office of the county clerk of Pecos county, covering all the land, waters, canals, etc., theretofore declared on by Zimmerman, including the 404.43 acres of section No. 2 in block No. 9. In the reservoir site designated by Zimmerman, and as designated later in the affidavit of Imperial Irrigation Company, there was embraced about 1,530 acres of land, 404.43 acres of which was, as above stated, on section No. 2 of block No. 9 of the H. & G. N. Ry. survey, purchased by Jayne. After Jayne's purchase of the section, the Imperial Irrigation Company fenced the 404.43 acres, and Jayne, upon his arrival in Pecos county when he went to make his settlement, found Imperial Irrigation Company in possession under fence, and engaged in digging and excavating, and erecting a large dam or embankment upon the 404.43 acres of his said section. The actual work of the company was being done under the direction and management of A. D. Jameson and Ross Allison, the contractor and engineer, respectively, of the Imperial Irrigation Company. On September 9, 1909, appellant, Joe Jayne, filed in the district court of Pecos county his petition in trespass to try title against Imperial Irrigation Company, A. D. Jameson, and Ross Allison, appellees herein, for the title and possession of section No. 2, block No. 9, of the H. & G. N. Ry. survey, for damages in the sum of $10,000 done said premises by defendants in digging, excavating, and erecting the dam and embankment, and for an injunction restraining defendants from maintaining upon his land the dam, embankment, ditches, etc., and from doing any act that would result in flooding and inundating his land. The defendants answered by general denial, plea of not guilty, and the Imperial Irrigation Company further answered, setting up the affidavit of D. Zimmerman filed in the clerk's office January 31, 1908, his sale to it on the 28th day of July, 1908, and their subsequent affidavit of appropriation filed August 1, 1908, claiming that it thereby acquired from the state of Texas an easement in and a right to take without compensation the 404.43 acres out of said section No. 2, as described in its answer, for a reservoir and dam site, and an easement in four-tenths acres of said survey, as described in its answer, for a canal route, and asked for judgment fixing and establishing its easement therein, and for a perpetual injunction forever restraining the appellant from trespassing in person, by agent or employé, upon its possession of the 404.43 acres claimed. To the answer of Imperial Irrigation Company, claiming and asserting an easement in said land by reason of the several affidavits of appropriation herein mentioned Joe Jayne filed a general demurrer and three special demurrers, attacking the sufficiency of defendant's pleading, all of which were by the court overruled. The cause was tried before the court, and resulted in a judgment for the plaintiff, Joe Jayne, against Imperial Irrigation Company and Ross Allison for the land sued for, with writ of possession, save and except the 404.43 acres claimed by said company for reservoir site and canal route. Judgment for A. D. Jameson on his disclaimer and judgment in favor of Imperial Irrigation Company against Joe Jayne, declaring and establishing its right to a perpetual easement in the 404.43 acres described for reservoir and dam site, and to four-tenths acres for a canal route upon plaintiff's land, with an injunction forever restraining the plaintiff, Joe Jayne, from in any manner trespassing in person, by agent or employé, upon same. Imperial Irrigation Company was awarded a writ of possession for the 404.43 acres. The plaintiff, Joe Jayne, brings this appeal."

The case involves the question of the right of the irrigation company to subject to its uses for reservoir purposes and dam in connection therewith about 400 acres of a school section awarded to plaintiff; said section containing 591.15 acres. There appears to be no contest as to plaintiff's title to the survey, except as to defendant's right, claimed under the irrigation statute of 1895, which, if the right to appropriate same or portion of same as a part of its reservoir exists under said statute, would be superior to plaintiff's title. Its right to an easement in plaintiff's said section for said purpose, as being included in the grant embodied in said statute, is the controlling question in the case, and, if such right was not granted, the other questions briefed are of no importance whatever.

The case comes to us on the judge's conclusions of fact and law. The material facts as found are that the Imperial Irrigation Company filed its charter on July 6, 1908, under said act, and was in possession of that portion of said survey No. 2 as described in defendant's answer by metes and bounds, claiming an easement therein for a storage reservoir and canals in connection with its irrigation project, and finds facts which would entitle it to such easement, provided the fundamental right to such an easement in said section existed under the said statute. The judge then proceeds to find the facts as to the question whether or not that portion of the survey in use by defendant in connection with its storage reservoir is indispensable to said reservoir, as follows:

"(a) It would be possible to construct a dam in such manner as to eliminate all of said survey 2 from said reservoir, but to do so is impracticable for the following reasons: It would necessitate constructing a much higher and longer dam than is now needed to withhold and retain the water. Shallow sheet water would prevent excavation for the dirt for the new dam, and dirt would have to be brought from a distance at greatly increased cost. The testimony of experts shows it to be impracticable from an engineer's standpoint, owing to the great cost rendering it commercially prohibitive.

"(b) That the said Imperial storage reservoir site so appropriated, as aforesaid, including that portion of survey 2 described in connection therewith, is a natural reservoir site, being basin shaped, of great capacity, and having a large drainage area, and is indispensable to the Imperial Irrigation Company's scheme of irrigation in connection with the Imperial canal. There is no other reservoir site of adequate capacity accessible to said Imperial Irrigation Company for the storage of water taken by it from the Imperial canal headgate on the Pecos river.

"(c) In addition to the foregoing findings on said issue, I here now adopt as my own the four following findings of fact presented by plaintiff, to wit:

"(A) That several miles to the east of Imperial Irrigation Company's Imperial reservoir, situated at different places upon the lands intended to be irrigated by defendant company, there are several unappropriated reservoir sites in which water can be stored, and from which said lands can be irrigated, but the use of same by defendant company is impracticable, for the reason that same could not be filled with water from defendant company's main canal, the Imperial canal, on account of the elevation, and because such lands as defendant desires to irrigate are on a higher level.

"(B) That to the west of defendant's `Imperial Reservoir' there is another reservoir site appropriated by said defendant May, 1909, the holding capacity of which is 5,000 acre feet, the waters of which can flow into said Imperial reservoir, and be carried thence over the lands intended to be irrigated by defendants, or could be carried through what is known as the `Upper Canal,' to and over the lands intended to be irrigated by defendant company, but said reservoir is not capable of being filled from Imperial canal, on account of elevation.

"(C) That by acquiring prior to November, 1908, the waters from Toyah Lake, situated about 40 miles distant in Reeves county, which lake was purchased by its present owner, one Levin,...