Matagorda Canal Co. v. Markham Irr. Co.

• Citation: 154 S.W. 1176
• Parties: MATAGORDA CANAL CO. v. MARKHAM IRR. CO.
• Decision Date: 26 February 1913
• Court: Court of Appeals of Texas

154 S.W. 1176

MATAGORDA CANAL CO. v. MARKHAM IRR. CO.

Court of Civil Appeals of Texas. Galveston.

February 26, 1913.

Rehearing Denied March 20, 1913.

Appeal from District Court, Matagorda County; Wells Thompson, Judge.

Action by the Matagorda Canal Company against the Markham Irrigation Company. From an order denying a temporary injunction, plaintiff appeals. Affirmed.

Gaines & Corbett, of Bay City, for appellant. Wilson, Dabney & King, of Houston, for appellee.

PLEASANTS, C. J.

This appeal is from an order of the judge of the district court of Matagorda county, made in vacation, refusing a temporary injunction in a suit for injunction brought in said court by appellant against the appellee. Appellant is a corporation organized and chartered under the laws of this state for the purpose of maintaining and operating an irrigation canal and plant, and appellee is a corporation organized and chartered under said laws for a like purpose. Both of said corporations obtain their supply of water from the Colorado river and acquire the right to appropriate waters from said stream under the provisions of articles 3115 to 3122 of the Revised Statutes. The right of appropriation so acquired by appellant is prior in time to that held by appellee.

Plaintiff's petition, after alleging its prior right of appropriation of the waters of said stream, alleges that it had contracted to furnish water to a number of persons (naming them), holding and cultivating land contiguous to its canal, for the irrigation of the crops of such persons for the year 1912; that the defendant was unlawfully diverting the flow of the waters of the Colorado river and appropriating to its own use water, to which appellant had a prior and superior right, and if defendant was permitted to continue to appropriate said water the result would be the destruction of the crops of the water tenants of plaintiff, whose crops plaintiff had contracted to water, as before stated, and plaintiff would thereby become liable to said tenants for failure to furnish water according to its contract in damages amounting in the aggregate to the sum of $135,000, and the property and plant of plaintiff would be rendered valueless. It is further alleged that the defendant was not able to respond in damages for the amount of injury and damage that would be so caused plaintiff. The prayer of the petition is as follows: "Wherefore, premises considered, plaintiff prays that your honor will set this case down for hearing, and upon hearing hereof will grant a writ of injunction restraining the defendant from interfering with the flow of the Colorado river so as to interfere with this plaintiff in procuring water therefrom, and to permit sufficient water to pass its pumps to supply water for the proper irrigation of the lands which plaintiff has contracted to irrigate, and that upon final hearing this plaintiff be decreed to have a prior right over and above the defendant to the use of the water in the Colorado river for the purpose of irrigating the lands described in its declaration of appropriation and contracted to be irrigated from year to year and that the injunction hereinbefore prayed for be made perpetual; for all costs of court in this behalf expended; and for all other and further relief, both general and special, either at law or in equity, to which plaintiff may of right be entitled, and, as in duty bound, plaintiff will ever pray." This petition, which was duly sworn to by the general manager of plaintiff company, was presented to the judge of the district court of Matagorda county on July 24, 1912. Whereupon notice was ordered issued to the defendant and a hearing of the application for temporary injunction set for August 19th.

The defendants on August 19, 1912, filed an answer which contains two pleas in abatement. In the first plea it is averred, in substance, that defendant has contracted to furnish water to irrigate the crops of 44 persons (naming them), who own and cultivate lands along the defendant's canal, and, if defendant is enjoined from pumping water from the Colorado river in accordance with its said contracts, the crops of the persons named would be destroyed. It is further averred that, in addition to rights said persons have acquired under their contracts with defendant, they have riparian rights in the water of the Colorado river superior to any right therein held by the plaintiff. Wherefore it is averred by defendant that the persons named who hold said contracts with defendant for water for the irrigation of their crops and the riparian rights aforesaid are necessary parties to this suit, and, not being parties herein, the injunction prayed for by plaintiff should not be granted. The second plea in abatement avers, in substance, that there is a defect of parties, in that the Lane City Pumping Plant and Borden Pumping Plant Company own and operate pumping plants on the Colorado river above the plants of plaintiff and defendant, and are taking a much larger quantity of water from the river than is being taken by the defendant, and are not parties to this suit. It is further averred that the wrong to plaintiff, if any, is being done by the parties named, and that no decree that is just and equitable can be rendered herein unless said named parties are parties to this suit. The affidavit of each of these pleas is in the following form: The plea is signed, "Markham Irrigation Company, by J. M. Moore, Its President and Agent." Immediately beneath this signature is the following: "Sworn to and subscribed before me on this the 19th day of August, A. D. 1912. George Austin, Clerk District Court in and for Matagorda County, Texas." Defendant further answered by general and special exceptions to the petition, and set out in detail the facts relied on to show that plaintiff was not entitled to the relief asked. The facts so averred which are pertinent to the questions discussed in this opinion will be hereinafter stated. The hearing was had upon the petition and answer and the affidavits and oral testimony of witnesses.

The material facts shown by the evidence are as follows: The appellant on January 14, 1909, acquired by purchase all of the property, franchises, and rights of the Matagorda Rice & Irrigation Company, including the right of said company to the use of the waters of the Colorado river for irrigation purposes. The last-named company made an appropriation of the waters of said river for the purpose of irrigating 40,000 acres of land on December 1, 1900, by complying with the provisions of article 3120 of the Revised Statutes. Immediately after filing the statement required by the article before mentioned, said company began the construction of its canal and irrigation plant and completed the same within 90 days thereafter. For the first year or two of its operation said company irrigated from 600 to 1,200 acres of land, and it or its successor, the appellant herein, has some years irrigated as much as 6,000 acres. Appellant undertook to irrigate 2,700 acres for the year 1912, and the crop upon one-half of this had been completely watered and had matured at the time of the hearing in the court below. It is not shown that any of the lands watered by appellant are riparian, or that appellant or any of the persons whose lands it had contracted to water had any riparian rights in the Colorado river. The pumping plant of appellant is situated on an inlet which connects with the Colorado river. At the time this pumping station was located there was a raft in the river below the mouth of the inlet. This raft forms an obstruction to the flow of the river and causes an accumulation of water in the river above the raft. By the action of the flood waters of the river the lower side of the raft is broken up and carried off by the current, and additional logs and drift are added to the upper side; the result being that the raft is moved further up the river after each flood. It is now several miles above the mouth of the inlet from which appellant gets its supply of water, and appellant depends for its water supply upon the water that comes over or through the raft.

Appellee's predecessor in title, the Moore-Cortes Canal Company, was incorporated as an irrigation company on November 3, 1900, and made its formal appropriation of water rights in said river on March 1, 1901, by complying with the provisions of the statute before cited; the extent of its appropriation being for 30,000 acres of land. This company at once began the construction of its plant and has irrigated 12,000 acres of land each year since it began operations. The appellee, on February 25, 1912, purchased all of the property, franchises, and rights of the company last named, including its rights as appropriator, and also its riparian rights, and is operating said plant and irrigating, under contract, the lands of the 44 persons named in its plea of abatement; the aggregate number of acres so irrigated being 9,250.

The pumping plant and canal of the Moore-Cortes Canal Company is on the west side, which is the opposite side of the river from that of the appellant. This pumping plant is also on an inlet which runs into the Colorado river at a point a mile or two above the inlet which forms the intake of appellant's plant. The raft was below this intake of appellee's plant at the time app...