Maverick County Water Control and Imp. Dist. No. 1 v. City of Laredo

• Decision Date: 19 April 1961
• Docket Number: No. 13729,13729
• Citation: 346 S.W.2d 886
• Parties: MAVERICK COUNTY WATER CONTROL AND IMPROVEMENT DISTRICT NO. 1 et al., Appellants, v. CITY OF LAREDO, Appellee.
• Court: Texas Court of Appeals

Page 886

346 S.W.2d 886

MAVERICK COUNTY WATER CONTROL AND IMPROVEMENT DISTRICT NO. 1 et al., Appellants, v. CITY OF LAREDO, Appellee.

No. 13729.

Court of Civil Appeals of Texas, San Antonio.

April 19, 1961.

Rehearing Denied May 17, 1961.

Smith, McIlheran & Jenkines, Weslaco, Ewers, Toothaker, Ewers, Elick, Jones & Abbott, McAllen, A. G. Haigh, Sawnie B. Smith, Kelley, Looney, McLean & Littleton, Edinburg, Hill, King, McKeithan & Reynolds, Mission, for appellants.

R. J. Goodman, Robert Phelps, Mann, Byfield & Castillon, Laredo, for appellee.

POPE, Justice.

This case presents procedural problems of stream litigation occasioned by the absence of rules and statutes suited to this special class of case. Certain Hidalgo County litigants have appealed from an order of the District Court of Webb County temporarily enjoining them, as lower water diverters, from prosecuting a separate action in Hidalgo County against upper water diverters located between Falcon Dam and Kinney County. The point in the case is whether the Webb court acquired prior jurisdiction over the parties, issues, and subject matter, and therefore could enjoin prosecution of the Hidalgo case to avoid conflicts with the Webb court's prior jurisdiction. We conclude that the injunction should be dissolved for the following reasons: (1) The Webb suit and Hidalgo suit do not conflict because the parties, issues and relief sought are different. (2) The Webb court has prior jurisdiction over the flowing waters of the Rio Grande in a defined area, but that fact does not result in a conflict in adjudication. (3) After adjudication by the Hidalgo court, the correct procedure will require certification of its judgment, decree, or orders to the Webb court for enforcement insofar as they affect the waters in the custody of the Webb court.

The parties in the two actions are different, and the Webb court did not acquire prior jurisdiction over the Hidalgo parties. In 1954, City of Laredo, to protect its water supply, sued the Maverick County Water Control and Improvement District No. 1, and sixty-five individual water diverters in the Webb court. All defendants were above the City of Laredo. In March, 1957, forty-three of the defendants cross-claimed against the Maverick Water District and four individuals who were defendants in the original suit. In May of 1957 thirty-two new parties intervened in the Webb suit, all of whom were downstream from Laredo. The lowest diverter was located in Porcion 2 in Zapata County, just above Falcon Dam. Hence, this Webb suit had water claimants suing each other, located from Porcion 2, Zapata County, upwards along the river to Kinney County. The parties were in that situation until about three years later.

On May 21, 1960, the appellants here, ten water control and improvement districts located in Hidalgo County, filed a separate suit in Hidalgo County. These plaintiffs had never theretofore been brought into the Webb case nor sued by any of its parties. The Hidalgo plaintiffs sued seventy-seven defendants who had not theretofore been made parties in the Webb case. There was eighty-one defendants in the Hidalgo case who were also parties in the Webb case. There were thirteen other parties who were in the Webb case but were not in the Hidalgo case. Within less than a month after the Hidalgo case was filed, twenty-eight of its defendants who had previously not been named parties to the Webb case, intervened in the Webb case. Also, within less than a month after the Hidalgo case was filed, twenty-four persons who were already parties to the Webb case, filed a pleading in the Webb court and prayed that it grant an order compelling all the Hidalgo plaintiffs to interplead in the Webb court. The Webb court, without notice and hearing, ordered the Hidalgo plaintiffs to do two things. First, it ordered them to file in the Webb court any claims they, the Hidalgo plaintiffs, asserted against any party in the Webb case. Wecond, it ordered the Hidalgo plaintiffs to bring into the Webb case all other water diverters not yet parties, located between Falcon Dam and Kinney County. The Webb court also set a hearing on a temporary injunction, and on June 24, 1960, after hearing, enjoined further proceedings in Hidalgo County. This appeal is from that decree.

The issues in the two actions are different, and the Webb court did not acquire prior jurisdiction over those asserted first in the Hidalgo court. The Webb case started in 1954, when the City of Laredo, as sole plaintiff, sued up-river diverters to protect and assure its municipal water supply. As a result of answers and cross-claims among the defendants, all above Laredo, the issues involved the claims of the municipality, the claims by riparians against the Maverick District as an appropriator, and the respective prescriptive rights among several parties. When, in May of 1957, the thirty-two water diverters below Laredo intervened in the Webb case the issues in that case were broadened. All the parties above Laredo, then, as to these new interveners, became upper diverters. These new lower diverters asserted both riparian and appropriative rights. On May 28, 1957, two diverters who owned lands in Porcion 2 of Zapata County, asked the court to take custody of the waters from Porcion 2 up to the headworks of the Maverick District. On June 2, 1957, the court entered its order taking judicial custody of that part of the river and declared that all parties may seek temporary relief for an equitable distribution pending final adjudication. For almost three years, no new parties or issues came into the Webb case.

On May 21, 1960, the ten Hidalgo water districts filed their suit in Hidalgo County and for the first time asserted that they had rights by force of certified filings and permits which were superior to those of all upper-riparians and upper-appropriators. They specially plead their certified filings and permits and that they antedated the rights and claims of the named defendants. They asked for an adjudication of their rights, for a removal of cloud cast on their claims by the defendants, and upon final trial for a permanent injunction against the unlawful diversion by defendants. They asked for no temporary injunction, and on the trial of this case swore that they would not do so. They asked for no relief against the City of Laredo.

The Webb court's order of June 24, 1960, which enjoined the ten Hidalgo plaintiffs from proceeding in Hidalgo County, should be dissolved because it is premature. The injunction was anticipatory of a future conflict. Presently, there are no orders from the two courts which are in conflict. Conflicts which arise out of the pendency of two suits are first avoided by urging a plea in abatement, but that step has been jumped in these proceedings. In Powers v. Temple Trust Co., 124 Tex. 440, 78 S.W.2d 951, 953, the Court said that there must be proof of something more than conflicting jurisdiction to resort to equity. 'There must be evidence of the necessity for the use of injunction.' This rule was re-stated after a careful review of the authorities by the Supreme Court in Lancaster v. Lancaster, 155 Tex. 528, 291 S.W.2d 303. See Russell v. Taylor, 121 Tex. 450, 49 S.W.2d 733, and Conn v. Campbell, 119 Tex. 82, 24 S.W.2d 813. Under some circumstances, as when a stalemate exists, prior jurisdiction may be protected by injunction. Cleveland v. Ward, 116 Tex. 1, 285 S.W. 1063.

The injunction should be dissolved because the two suits are different. When we examine the parties and issues in the Webb case at the time the Hidalgo case was filed, we see that no judgment rendered by the Webb court would have been res adjudicata with respect to any of the ten parties or their rights. The Webb case could have gone to final judgment without affecting any of the Hidalgo plaintiffs or their rights. When the Hidalgo case was filed, no issued involved in that case was also involved in the Webb case. A decision determining rights among upper diverters does not decide the rights of non-party lower diverters. McCurdy v. Cage, 123 Tex. 558, 69 S.W.2d 56; Allen v. Read, 66 Tex. 13, 17 S.W. 115; Conn v. Campbell, 119 Tex. 82, 24 S.W.2d 813; 2 McDonald, Texas Civil Practice, Secs. 7.09, 7.10; 1 Tex.Jur.2d, Abatement and Revival, Secs. 31, 32, 34, 35.

In support of the Webb injunction, it is argued that the lower diverters were indispensable parties. It has never been the law of Texas that a lower diverter is an indispensable party in a suit between those who are upper to him. State of Texas v. Valmont Plantations, Tex.Civ.App., 346 S.W.2d 853; Zavala County Water Improvement Dist. No. 3 v. Rogers, Tex.Civ.App., 145 S.W.2d 919, 923; Wilson v. Reeves County Water Improvement Dist. No. 1, Tex.Civ.App., 256 S.W. 346; Ward County Water Imp. Dist. No. 3 v. Ward County Irr. Dist. No. 1, Tex.Civ.App., 237 S.W. 584, modified 117 Tex. 10, 295 S.W. 917. Even an intermediate diverter is not indispensable. Biggs v. Lee, Tex.Civ.App., 147 S.W. 709.

While much can be said for the 'big' water suit in many kinds of cases, often water disputes concern a limited number of claims and adversaries. The course pursued in this case would ultimately mean that all diverters down to the Gulf of Mexico must be joined in the Webb case. If the ten Hidalgo plaintiffs are forced into the Webb case with orders to join all above them who are not already parties, they then become parties. If diverters still farther below then sue any of these ten Hidalgo appropriators, those new lower plaintiffs in turn would be forced into the Webb case until, by steps, all lower diverters would be parties in the Webb case. This is a practice which no decision has sanctioned. To approve such procedure would do violence to our existing practice with respect to parties in water litigation. It would require even simple disputes to be tried by the expensive and time-consuming 'big case'.

In support of the Webb...