Lewis v. San Antonio River Authority

• Citation: 343 S.W.2d 475
• Decision Date: 23 November 1960
• Docket Number: No. 13589,13589
• Parties: G. Garrett LEWIS et al., Appellants, v. SAN ANTONIO RIVER AUTHORITY, Appellee.
• Court: Court of Appeals of Texas. Court of Civil Appeals of Texas

Page 475

343 S.W.2d 475

G. Garrett LEWIS et al., Appellants, v. SAN ANTONIO RIVER AUTHORITY, Appellee.

No. 13589.

Court of Civil Appeals of Texas, San Antonio.

Nov. 23, 1960.

Rehearing Denied Jan. 4, 1961.

Foster, Lewis & Langley, Oliver & Oliver, San Antonio, Will Wilson, Atty. Gen., Houghton Brownlee, Jr., Asst. Atty. Gen., Hill & King, Mission, for appellants.

Sawtelle, Hardy, Davis & Goode, Harvey L. Hardy, David H. Brune, San Antonio, for appellee.

BARROW, Justice.

Appellee, San Antonio River Authority, a governmental agency and body politic, brought this suit against appellants, G. Garrett Lewis and numerous others, as owners of land and certain property rights held by them in connection with the San Juan Dam, head gate, ditch and water rights upon and along the San Antonio River. Appellants were sued both individually, as owners of tracts of land, and as a class. By this suit appellee seeks a declaratory judgment holding that it is not liable in damages for the taking, damaging or destruction of appellants' property in connection with changing, straightening, widening and deepening of the bed of the San Antonio River, a project in which appellee is engaged as a flood control measure. The project does not involve navigation or an aid to navigation, nor is any right of appellee to act in aid of navigation involved. Appellants filed an answer and cross-action, joining the City of San Antonio as a cross-defendant. The City answered by general denial. The answer of appellants opposed a declaratory judgment and sought a judgment on their cross-action for their individual damages for the taking, damaging and destruction of their respective properties.

Appellee presented a motion for summary judgment supported by detailed maps, plans and charts prepared by its engineers, together with affidavits of expert witnesses, also with request that the court take judicial notice of historical facts, court decisions, and other facts which are matters of common knowledge. Appellants answered the motion and supported their answer by affidavits and attached copies of the original grants of their respective predecessors in title. The court granted the summary judgment.

The appellee was created by act of the Legislature as a Conservation and Reclamation District under authority of Article 16, Section 59, of the Constitution of the State of Texas, Vernon's Ann.St., and under the provisions of Article 8280-119, Vernon's Ann.Civ.Stats., with the powers, rights, privileges and functions prescribed therein. The Act specifically vests the District, for the purposes of the Act, with such title and right of control as the State has, or may have, in, to and concerning the natural bed and banks of the San Antonio River, and such tributaries thereof as may be affected by the prosecution of the functions of the District. The appellants are individual owners of separate tracts of land in the vicinity of Old Mission San Juan in Bexar County, together with certain water rights or titles. Such water being supplied by a dam on the San Antonio River with a head gate located near old Mission San Jose. Said dam and head gate, at all times pertinent, until the matters involved herein, had been turning a part of the natural flow of the river into a ditch known as San Juan Ditch, wherein it proceeded down to the irrigated farms of each of appellants.

Appellee is and has been of some two years prior to the filing of this suit, engaged in a project, as a flood control measure, of straightening, widening, deepening and improving the San Antonio River, as well as San Pedro, Alazan and Martinez Creeks, each of which are natural flood drainage for the City of San Antonio.

The problems involved which are presented by appropriate points and counterpoints in this appeal are quite numerous and intricate. We shall not consider those points separately, but consider the respective contentions and positions of the parties, without regard to the order of the points or counter-points. In connection with the work of improving the San Antonio River, appellee has destroyed the San Juan Dam across the river bed and opened a new channel some two hundred feet west of the old river bed at the point where the dam was and where the head gate and the end of San Juan Dam are situated. The new channel is several feet deeper than the old river bed. Thus leaving the old river bed dry except perhaps at flood stage, when high water might flow through.

We shall first consider appellee's counterpoints by which it seeks to uphold the judgment of the trial court. (1) That flood control is a vital need for the City of San Antonio. (2) That its project in an effort to effect such flood control is a proper exercise of the police power. (3) That the loss of appellants' water rights as a consequence thereof was damnum absque injuria as a damaging of property under a reasonable exercise of the police power.

Form the record before us as well as from matters of common knowledge and from historican facts of which we may take judicial knowledge, we know that San Antonio is a large and rapidly growing city, of some six hundred thousand population at the present time. It covers an area of several hundred square miles, the major portion of which is covered with buildings, pavement and other improvements, leaving only a small portion of the earth exposed to absorb moisture, so that most of the rainfall must drain into the San Antonio River, or its tributaries and thence into the river. The river and these tributaries which meander through the City are extremely winding. At the time appellants acquired grants from the Mexican Government the City of San Antonio was a small village located several miles above the San Juan Dam. It is a well known fact that the San Antonio river bed is and always has been comparatively narrow and shallow, so that in recent years it and its tributaries have been too narrow and shallow to carry off the water on occasions of unusually heavy rains, resulting in several major floods, causing loss of lives and much property damage, the first of which occurred in the year 1921. It is apparent that the real cause of the difficulty is that the City has outgrown the river. This fact required the use of some measures to alleviate the conditions, and they brought about the creation of appellee and the prosecution of its project. We think it is obvious that under existing conditions the river became inimical to the health, safety and welfare of said City and its inhabitants, and appellee was authorized to exercise the powers and authority vested in it by the Act creating it and by the laws of this State governing such corporations.

We come now to the rights of appellants. The San Juan Dam was originally constructed in the year 1731, when the territory comprising the State of Texas was a province of the kingdom of Spain, for the purpose of irrigating arid land in the area of Mission San Juan. The water was lifted by the dam to a height which caused a portion of the water to flow through the head gate into the San Juan Acequia (ditch) which ran on the contour of the land to and through the land irrigated and thence back into the river at a point some distance below the dam. In 1824, after Mexico had gained its independence from Spain, and this territory was a province of that Nation, and at a time when the San Juan Dam, head gate and ditch were still in continuous use, the Mexican Government made numerous small grants of land, together with rights in the irrigation system, to numerous grantees who are appellants' predecessors in title. It is not disputed that appellants' titles are deraigned from those original grantees. Portions of one of said grants are copied in footnote. ¹

It is well settled that the rights of appellants in and to the water rights must be governed by the Mexican (Spanish) law in effect on the effective date of the grants. Whatever rights were granted to them at that time, they now have. Luttes v. State, Tex., 324 S.W.2d 167; Rudder v. Ponder, 156 Tex. 185, 293 S.W.2d 736; Giles v. Basore, 154 Tex. 366, 278 S.W.2d 830; State v. Balli, 144 Tex. 195, 190 S.W.2d 71; Humble Oil & Refining Co. v. Sun Oil Co., 5 Cir., 190 F.2d 191; 191 F.2d 705, certiorari denied 341 U.S. 920, 72 S.Ct. 367, 96 L.Ed. 687. We note from the express language of the grant appearing in the footnote, that Francisco Maynes is granted two dulas of water 'to be taken from the irrigation conduit of the Mission of San Juan Capistrano,' along with the land described in the grant. We think it is clear that the dam, head gate and ditch were then and remained a part and parcel of 'the irrigation conduit of the Mission of San Juan Capistrano.' The grant was not merely two dulas of water in the ditch, but included the right to the dam and head gate as well as the irrigation ditch.

We have examined the Spanish laws cited and quoted by appellee and find nothing which would authorize the destruction of the San Juan Dam. The San Antonio River not being navigable in fact, we are of the opinion that even in the absence of an express grant any citizen might open an acequia or channel into the river and extract irrigation water, provided it did not interfere with navigation and did not restrain the common use of 'all men generally.' Law 8, Title 28, and Law 18, Title 28, Partidas 3 (Scott translation thereof). That being substantially the same as our law of riparian rights. We are also of the opinion that the Mexican grants expressly granted water in the ditch and not a mere right to take water from the river. We are also of the opinion that the grants, when construed in the light of facts existing at that time and long prior thereto, the dam and head gate being integral parts of the irrigations system, together with the ditch, recognized the legal existence of the dam and head gate and their continued existence and use by the owners of the land as appurtenant to the grants. Moreover,...