Knight v. Oldham

• Decision Date: 06 March 1919
• Docket Number: (No. 893.)
• Citation: 210 S.W. 567
• Parties: KNIGHT et al. v. OLDHAM et al.
• Court: Texas Court of Appeals

210 S.W. 567

KNIGHT et al. v. OLDHAM et al.

(No. 893.)

Court of Civil Appeals of Texas. El Paso.

March 6, 1919.

Rehearing Denied April 3, 1919.

Appeal from District Court, Pecos County; Jas. Cornell, Judge.

Application by Joseph G. Knight and others to the State Board of Water Engineers, opposed by James W. Oldham and others. From the decision of the board, Oldham and others appealed to the district court, which tried the case de novo, and from decree that the board was without authority to act, and dismissing the cause, applicants appeal. Affirmed.

Burges & Burges, of El Paso, and R. D. Blaydes, of Ft. Stockton, for appellants.

Harkless & Histed, of Kansas City, Mo., Blanks, Collins & Jackson, of San Angelo, and W. A. Hadden, of Ft. Stockton, for appellees.

HARPER, C. J.

This action originated in an application by J. G. Knight and 60 others, who are owners of and are farming certain irrigated lands, to the state board of water engineers, in which they prayed that said board determine the amount of water controlled by appellees, the amount necessary for a proper irrigation of their lands, and that a proper rate or charge for delivery be determined and declared for water used and to be used by them, as provided by the law creating said board.

For answer the defendants interposed the following defenses, in addition to some others not pertinent here: (a) That the waters, which they were selling and distributing to the complainants through their irrigation projects, come from springs located upon lands owned by them in the nature of private property, and that the only rights the complainants had to such waters were measured and controlled by their several water contracts with the Ft. Stockton Irrigated Lands Company, which Oldham & Burget, in purchasing the properties of the corporation had agreed to protect and perform: (b) that neither the Ft. Stockton Irrigated Lands Company nor Oldham & Burget had ever engaged in business as a public service corporation or association, were not in fact serving the public in any particular, and had never availed themselves of any of the rights and privileges conferred upon public service corporations or institutions by the state of Texas or under its law; (c) that they controlled and owned the riparian lands bordering on or tributary to the springs which fed their system, and that all such water originated and disappeared on their own premises.

The state board of water engineers assumed jurisdiction of the controversy, measured the waters, valued the properties, and fixed the service rates. The defendants appealed to the district court of Pecos county, Tex., where they pleaded the same defenses as those urged before the state board of water engineers, to which Knight and associates interposed a general denial.

The cause was tried de novo under the statute, and upon final hearing the court entered its decree in effect that board of water engineers was without authority to determine the amount of water necessary and to fix the rates to be charged for delivery, and it was further decreed that for that reason the conclusions and findings of the board appealed from be set aside and held for naught, and the cause dismissed, from which judgment the applicants have appealed.

The trial court filed findings of facts and conclusions of law. The appellant does not attack or controvert the findings of fact, but simply asserts that the trial court erred in concluding as a matter of law that the act of the Legislature under which the board of water engineers acted is inoperative because (1) it vests in the board power to regulate rates, if at all, only by implication and vaguely; (2) that the law is so lacking in mutuality of remedies, and so completely fails to make estoppel by judgment of the board mutual, as to be inoperative and without force. The conclusions of law complained of are not so definite a statement of the reason for the holding that the court would not take jurisdiction of the action as that recited in the decree entered. The reasons complained of amount to a holding that the legislative act invoked does not grant the power to the board to inquire into and fix the amount of water to be distributed and the charge to be made for its delivery in any case, and the effect of the judgment is to hold that the board was not empowered to act in this case because of its peculiar facts.

In answer to the first criticism by the trial court of the irrigation laws, we think that, in proper cases, the power is clearly and definitely given in article 5002f, Vernon's Sayles' Statutes of Texas (section 60 of chapter 171, General Laws, Acts 33d Leg. p. 358):

"If any person entitled to receive or use water from any canal, ditch, flume, lateral, dam, reservoir or lake, or from any conserved or store supply, shall present to the board his petition in writing, showing that the person, association of persons, corporation or irrigation district, owning or controlling such water has a supply of water not contracted to others and available for his use, and fail or refuse to supply such water to him, or that the price or rental demanded therefor is not reasonable and just or is discriminatory, and that the complainant is entitled to receive or use such water and is willing and able to pay a just and reasonable price therefor; and shall accompany such petition with a deposit of twenty-five dollars, it shall be the duty of the board to make a preliminary investigation of, such complaint and determine whether there is probable ground therefor. If said board shall determine that no probable ground exists for such complaint, same shall be dismissed, and the deposit may, at the discretion of the board, be returned to the complainant or paid into the state treasury."

The answer to the second is that the law as it then stood was possibly amenable to the criticism, for the reason that it gave water users the right to apply to the board to adjust the matters complained of here, but made no provision for the delivering company to do so in any event, not even in case the rate fixed by the board should in after years, by reason of changed conditions making it more expensive to deliver water, become oppressive; but if, for that reason, the statute should then have been held to be inoperative, since the trial of the case, it has been so amended as to cure this defect. Gen. Laws 35th Leg. 4th Called Sess. 1918, p. 129. So this board and the courts are now clothed with full and definite power to make the inquiry as to corporations or associations of persons, etc., to which the statutes apply, and to determine the questions, subject to appeal, as to all those entitled to it.

For our views upon these questions, stated at greater length, see Toyah Valley Irrigation Co. v. Winston, 174 S. W. 677. It follows that, though the statutes may not have been enforceable at the time this suit was tried, since they are now so amended as to be made enforceable, it must be remanded for trial, unless the appellee, for any reason urged by it here, is not subject to be regulated by these statutes.

Findings of Fact.

(1) The Ft. Stockton Irrigated Lands Company was organized and procured a charter from the state of Texas in 1899; their charter being based upon section 23, art, 1121, R. S. 1911, and authorizing the construction, maintenance, and operation of dams, reservoirs, lakes, wells, canals, flumes, laterals, and other necessary appurtenances for the purpose of irrigation, navigation, milling, mining, stock-raising, and city waterworks.

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