Martinez v. Maverick County Water Con. & Imp. Dist. No. 1

• Citation: 219 F.2d 666
• Decision Date: 18 February 1955
• Docket Number: No. 14891.,14891.
• Parties: Ben MARTINEZ and Terry Production Corporation, Individually and as Representatives of a Class, v. MAVERICK COUNTY WATER CONTROL AND IMPROVEMENT DISTRICT No. 1, et al.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

219 F.2d 666 (1955)

Ben MARTINEZ and Terry Production Corporation, Individually and as Representatives of a Class, v. MAVERICK COUNTY WATER CONTROL AND IMPROVEMENT DISTRICT No. 1, et al.

No. 14891.

United States Court of Appeals, Fifth Circuit.

February 18, 1955.

G. C. Mann and George D. Byfield, Laredo, Tex., for appellants.

W. M. Cleaves, Houston, Tex., Jeremiah Ingels Rhodes, Gerald D. Becker, Eagle Pass, Tex., W. F. Nowlin, Patrick H. Swearingen, Jr., Brewer, Matthews, Nowlin & Macfarlane, San Antonio, Tex., for appellees.

Before HUTCHESON, Chief Judge, RIVES, Circuit Judge, and DAWKINS, District Judge.

RIVES, Circuit Judge.

Like the case of Hudspeth County Conservation and Reclamation District No. 1 v. Robbins, 5 Cir., 213 F.2d 425, the occasion for this suit is the shortage of rainfall in the watersheds of the Rio Grande River and its Tributaries.

This case was first argued and submitted before a panel of this Court consisting of Circuit Judge Strum and District Judges Dawkins and Hooper, and, without agreement being reached on a decision, it was assigned to Judge Dawkins for opinion. Judge Strum died before the case could be decided and, upon the suggestion of Judges Dawkins and Hooper, the case was restored to the docket, and, upon re-submission, it fell to the present panel.

With Judge Dawkins' permission, we adopt the statement of the case prepared by him on former submission.

Statement of Case Prepared by Judge Dawkins.

Plaintiffs, Ben Martinez (alleging himself to be a citizen of the Republic of Mexico but residing in Webb County, Texas) and Terry Production Corporation (created under the laws of Delaware but having a place of business in said county), each allegedly owning or leasing lands enjoying "riparian" rights superior to those of defendants and fronting on the Rio Grande River, international boundary between the said Republic and the United States, brought this suit as a class action, in their own behalf and that of all others similarly situated, under Rule 23(a) of Civil Procedure, 28 U.S.C.A. (1) against Maverick County Water Control and Improvement District No. 1 (called Maverick Water District), created by an act of the legislature of Texas; (2) against Wyatt C. Hendrick and Reg McQuatters, individually and as class representatives of all persons, firms and corporations (but excluding all cities, towns and villages), who own or are lessees of lands also fronting on said River in the same general area, having only "appropriation" rights because they were sold or patented to defendants or their authors in title by the State of Texas subsequent to March 19, 1889; and (3) against S. Otis Sullivan, W. C. Butler and J. W. Thompkins, individually and as class representatives of all persons, firms and corporations who or which own or lease and are in possession of lands fronting the Rio Grande within the bounds of defendant Maverick Water District, which also takes water therefrom for distribution to users, as well as against others who personally divert water for irrigation directly from the Rio Grande rather than buying it from said District; all of said defendants being in the class called appropriators.

The area involved is described as follows: "Commencing on the north with the most southerly boundary line of Maverick County Water Control and Improvement District No. 1 in Maverick County, Texas, the southeast corner thereof being near the point where the San Antonio Creek empties into the Rio Grande, extending to the south down the Rio Grande to the hereinafter alleged point above the boundary line of Hidalgo and Starr Counties (all of such land being situated in Maverick, Webb, Zapata and Starr Counties) * * *" and plaintiffs' lands so owned or leased are located either in "Spanish Grants, title to which passed out of the King of Spain in the 18th Century, or in Sections patented by the State of Texas prior to March 19, 1889, * * *."

For cause of action plaintiffs allege that during the period of a severe drouth extending from May, 1953, to the filing of this complaint on August 6, 1953, the defendants named, as well as all others of defendant class upstream from plaintiffs, have taken from said Rio Grande River all of the water before it reached the complainants, thereby depriving them entirely of its use and causing great damage to their livestock and growing crops, all in violation of plaintiffs' alleged superior lawful rights; that the water so withdrawn was also used by means of canals for irrigating lands more than 100 miles distant from and in no sense riparian to said river.

Plaintiffs further allege that their lands and those of all others in the same class, having been severed from the public domain prior to the act of the Texas Legislature of March 19, 1889, enjoy riparian rights to the water of said river which run with their titles, embracing all "that is below the line of highest ordinary flow" for all purposes superior to the lands of defendants, appropriators, which were severed from the public domain after that date; and that complainants are entitled also to participate ratably in the flow above said line.

As the basis for the class action, plaintiffs allege that the numbers of persons on each side of this controversy, consisting of hundreds, are too numerous to be made parties in one complaint; for which reason they ask that the court appoint a master with authority to ascertain the names and locations of all others in each class within the segment named, to whom notice shall be given of their right, within a reasonable time, to intervene herein, after which all the parties be aligned according to class; that upon trial a declaratory judgment be entered fixing the rights of each class with respect to said waters; and that the said master be ordered to stand by for the purpose of apportioning said water when necessary in periods of drouth with power to apply for writs of injunction to prevent violation and to enforce said decree.

Defendant Maverick Water District first moved to transfer the case to the Western District of Texas, its alleged domicile, on the ground that neither plaintiffs nor defendants were residents of the Southern District of Texas as required by the applicable law, 28 U.S.C.A. § 1391, and the court of the latter District was without venue. This was followed by a motion to dismiss by the same defendant on the grounds that under the facts alleged:

I. The suit is "not maintainable" as a class action;

II. Martinez is an alien, and Terry Corporation is not a citizen or resident of the Southern District of Texas, while Maverick Water District is "a body politic or subdivision of the State of Texas, with its situs in the Western District";

III. The Rio Grande forms the international boundary between the Republic of Mexico and the United States; that all who use water throughout its length are necessary parties; and that the court "should not take jurisdiction over a segment of the stream" and make decisions involving the rights of others above and below not made parties for the reason they would not be bound thereby, and particularly in view of the fact that a State Court of competent jurisdiction has already taken jurisdiction of the same subject matter;

IV. and V. The Rio Grande being a navigable stream, the disposition of whose waters as between Mexico and the United States has been determined by treaty, they are not subject to private ownership or control but are governed by "treaty provisions regulating the division, use and distribution"; that by that treaty (of November 14, 1944, 59 Stat. 1219) "no additional use of any kind was to be made of the waters * * from" that date "* * * until after the series of dams provided therein * * * had been completed * * *"; and that the same circumstances were "recognized in the compacts between the State of Texas and Colorado and Texas and New Mexico in the construction of dams on the upper reaches of the Pecos River" and have been "so recognized for a period of over one hundred years";

VI. The unprecedented drouth complained of has now ended and the issue thus raised has become moot because of an over-abundance of rain and water in said river. The tentative location for a second dam in the series contemplated by the treaty of 1944 has been made and preparations for its construction are in progress, which will be above the segment involved here and as recognized in the plan "will alleviate the conditions of water shortage in the Rio Grande River. By reason of these facts, this court in the exercise of judicial discretion should not take jurisdiction in this case and inaugurate long, tedious, complicated and involved and expensive proceedings when in the light of human experience the condition of deficiency of water supply resulting from the unprecedented drouth will not recur during the lifetime of any of the parties * * * in this generation, coupled with the program now in process of completion of the construction of dams on the Rio Grande River under the treaty * * * will take care of the water supply in the Rio Grande River." Further, plaintiffs' contention as to their legal priority is not supported by the law, and the State of Texas had the right to create the defendant water district with power to administer the waters in the streams of the state, superior to any claims by complainants.

VII. Plaintiffs' contention "that the State of Texas in enacting its water laws from and after March 19, 1889, did so for the special benefit of holders of lands abutting the Rio Grande River * * * under Spanish grants" is fallacious.

VIII. And finally, "This defendant is a political subdivision of the State of Texas, and as an appropriator under an appropriation issued for its account by the Board of Water Engineers of the State of Texas, is entitled to the aggregate of all of the waters of the State of Texas falling and accumulated in the upper reaches of the Pecos River, the Devils River and...