Martin v. Burr

• Decision Date: 05 December 1914
• Docket Number: (No. 5358.)<SMALL><SUP>†</SUP></SMALL&gt
• Citation: 171 S.W. 1044
• Parties: MARTIN et al. v. BURR et al.
• Court: Texas Court of Appeals

171 S.W. 1044

MARTIN et al. v. BURR et al.

(No. 5358.)^†

Court of Civil Appeals of Texas. San Antonio.

December 5, 1914.

Rehearing Denied January 6, 1915.

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

Suit by J. K. Burr and Mrs. Elizabeth Moore, as guardian for G. Bedell Moore, against T. J. Martin and others. From the decree rendered, part of the defendants appeal. Affirmed.

Jones & Thurmond, of Del Rio, Baker, Botts, Parker & Garwood, of Houston, Boggess & Smith, of Del Rio, and W. B. Teagarden, of San Antonio, for appellants. McFarland & Lewright, of San Antonio, and Murray & Murray, of Eagle Pass, for appellees.

CARL, J.

This is a suit brought by appellees, J. K. Burr and Mrs. Elizabeth Moore, as guardian for her minor son, G. Bedell Moore, plaintiffs in the court below, seeking to perpetually enjoin the appellants T. J. Martin, R. Stratton, and Chas. Gaebler from diverting from the channel of the Las Moras creek the waters of said creek and using the same upon their lands for irrigation purposes, and appellant Galveston, Harrisburg & San Antonio Railway Company from diverting said waters and using same for supplying their steam engines used in transporting their trains in such quantities as to so reduce the waters flowing in said channel as to cause the same to cease to flow over and across the lands of appellees in sufficient quantities for their domestic purposes and to furnish drinking water for their stock. Each appellant specially denied all issues of fact in plaintiff's pleadings, and by special answer claimed the right to use the water from said stream in the manner and for the purposes and to the extent by each particularly asserted, and that this right had been acquired by limitation and prescription. There were other parties defendant below, all of whom are disposed of by the judgment, none of whom are appealing from the judgment entered except these appellants. The case was tried in the court below before a jury, but at the conclusion of the testimony the court peremptorily instructed the jury to return the following verdict:

"We, the jury, find and return our verdict as follows:

"(1) Plaintiffs, and each of them, shall recover and have a right to a continuous flow of the Las Moras creek along and through the lands described in their second amended original petition for the use of water for domestic purposes, including the watering of live stock upon said lands, against each of the defendants, Thomas J. Martin, Max Indlekoffer, John Gilder, Martin McGovern, Chas. Gaebler, R. Stratton, Jack Gay, August Beidler, R. L. Dawson, Emmett Dawson, and Galveston, Harrisburg & San Antonio Railway Company to the use of said water for any purpose.

"(2) Plaintiffs shall recover and have a writ of injunction against the defendants R. Stratton, Thomas J. Martin, R. L. Dawson, and Emmett Dawson restraining them and each of them and their agents, employés, and servants from diverting the waters of the Las Moras creek for irrigation purposes at such time or in such quantities as would cause the said creek to cease to flow on or over the lands of plaintiffs or either of them; that plaintiff shall not recover nor have a writ of injunction against the defendants Max Indlekoffer, Jno. Gilder, Martin McGovern, Chas. Gaebler, Jack Gay, August Beidler, and Galveston, Harrisburg & San Antonio Railway Company.

"(3) That defendants Max Indlekoffer, Jno. Gilder, Martin McGovern, Chas. Gaebler, R. R. Stratton, Thomas J. Martin, and Galveston, Harrisburg & San Antonio Railway Company, and each of them, shall take naught by their respective cross-actions herein."

The jury returned a verdict in accordance with the court's instruction, and judgment was entered accordingly thereon.

The contentions of appellants, briefly stated, are: (1) That they were each entitled to judgment as a matter of law; or (2) in any event the issue was one of fact for the jury to determine.

Appellees contend that the court's action is justified because appellants failed to allege and prove an exclusive, adverse, open, and notorious use of, and claim to, a certain definite quantity of water during the prescriptive period, and that during that time appellees nor any of their grantors were under legal disability, etc.

The Las Moras creek is a water course or stream having its source or hand spring on the government reservation in Kinney county, Tex., known as Ft. Clark, which occupies what is known upon the map of said county as survey No. 254, made in the name of Samuel Maverick, and running thence in a southwesterly direction through a portion of Kinney county and Maverick county to a point in the latter county where it empties into the Rio Grande.

"The defendants in this suit are all owners of land along the course of this stream, and the plaintiffs are the owners of the several surveys described in their pleadings, and said stream runs through each of said surveys, or such as it does not run through abut thereon. The plaintiffs' (appellees') lands are those nearest the mouth of said stream, extending from the confluence thereof with the Rio Grande up the creek to the upper line of survey No. 219, and the lands of defendants all lie above those of plaintiffs on said stream, and all the irrigated lands of each defendant are riparian to said stream, with the exception of appellant Thos. J. Martin's two Bruno surveys (No. 1 in name of Zick Bruno, and No. 2 in name of Joseph Bruno), of 160 acres each, which are not riparian, because they do not touch the creek nor call for it, but are detached therefrom by intervening lands. Defendant Galveston, Harrisburg & San Antonio Railway Company owns a right of way through the `Dolores Town Tract' and across the Las Moras creek, and maintains a pumping plant on its said right of way, which supplies water to two storage tanks, one at the station of Spofford, and the other at the station of Kinney Siding. These tanks furnish water to the engines used by said railway company in the transportation of its trains."

The defense relied upon by appellants was a title by prescription to the use of the water of Las Moras creek. It is said in Kinney on Irrigation and Water Rights (2d Ed.) vol. 2, p. 1876, § 1048:

"There are five principal elements necessary for the acquisition of a permanent title by prescription, namely: First, the possession must be actual occupation or use, open and notorious, and exclusive; second, it must be hostile against the rights of the party against whom the right is claimed; third, it must be held under a certain right as the property of the claimant; fourth, it must be continuous and uninterrupted for the full period prescribed by the statute of limitations; fifth, during all of this period taxes, if any, are assessed against the property claimed, and must be paid by the claimant."

And, continuing:

"If it is a water right so claimed, he must have had the actual use of the water under the right, and have applied the water to some beneficial use or purpose during the full period prescribed by the statute of limitations; otherwise there is no right to the water which can become the basis of an adverse claim. * * * The mere use of water, a right of way, or a ditch, or canal in any particular manner, for however long a period of time, will not ripen prescriptively into a permanent right. There must be something more. The use during the full period of time necessary to acquire the right must have been hostile to the owner. Without a hostile holding against the owner, both in the inception and the continuance of a claimed right, no prescriptive right can be acquired."

There is a distinction between title by limitation and a prescriptive title, in that the latter is based upon a presumed grant to the property or the use, while the former is not. Under the common law, the mode of acquiring title by what is called "prescription" is founded on uninterrupted use and enjoyment "time out of mind, or for such a length of time that the memory of man runneth not to the contrary." The entry and holding in order to build up a title by prescription must be hostile to the rights of the true owner. The true owner's rights must be invaded by such hostile acts as would constitute grounds for action against the adverse claimant or intruder, and so as to make the possession appear to be for the benefit of the claimant. Swan v. Munch, 65 Minn. 500, 67 N. W. 1022, 35 L. R. A. 743, 60 Am. St. Rep. 491. And there are a number of authorities which hold that a right of action must exist on account of the invasion of the owner's rights and injury to him during the entire prescriptive period, in order to mature a prescriptive title. Logan v. Williams, 159 Ky. 412, 167 S. W. 124; White v. McNabb, 140 Ky. 828, 131 S. W. 1021; Stratton v. Boys' School, 216 Mass. 83, 103 N. E. 87, 49 L. R. A. (N. S.) 57; Featherman v. Hennessy, 42 Mont. 535, 113 Pac. 751.

For all riparian owners have the right to use their just proportion of the water flowing past their lands. And the natural use of such waters takes precedence over such unusual use as irrigation, mills, mining, etc. Every riparian owner has the right to take all the water his needs require as long as such use does not injure his riparian neighbors, in which latter case he may use only his just proportion. No cause of action accrues until the one, by using more than his rightful share of the water, causes or threatens injury to complaining party. Thus, it will be seen, the right to use water is a variable one; for, while one man may use the water both for his stock and domestic purposes, as well as for the irrigation of his farm, his neighbor may require it only for stock and domestic uses; or, possibly, he may not need the water at all. He may intend to use his land at some future day for the purpose of establishing an irrigated farm, and yet at present be not using it for any purpose. If he is not using the land, he has no use for the...