Motl v. Boyd
| Decision Date | 26 June 1926 |
| Docket Number | (No. 3740.) |
| Citation | 286 S.W. 458 |
| Parties | MOTL et al. v. BOYD et al. |
| Court | Texas Supreme Court |
Suit by Charles C. Motl and others against R. W. Boyd and another. An order overruling a motion to dissolve a temporary injunction was reversed, and the case remanded, by the Court of Civil Appeals (236 S. W. 487), and plaintiffs bring error. Judgment of the Court of Civil Appeals reversed, and that of the district court affirmed.
Hill & Hill, of San Angelo, Gaines & Gaines, of San Antonio, Seabury, George & Taylor, of Brownsville, Andrews, Streetman, Logue & Mobley, of Houston, and Hudson & Starley, of Pecos, for plaintiffs in error.
Blanks, Collins & Jackson, of San Angelo, for defendants in error.
John M. Corbett, of Bay City, C. R. Wharton, of Houston, Crate Dalton and Seay, Seay, Malone & Lipscomb, all of Dallas, and D. W. Glasscock, of McAllen, as amicus curiæ.
Statement of the Case.
This suit was filed in the district court of Tom Green county by plaintiffs Charles C. Motl and others for an injunction restraining the defendants R. W. Boyd and H. C. White from pumping water for irrigation purposes from a reservoir in Spring creek created by a dam built in 1886 by the remote vendors of the plaintiffs adjacent to lands now owned by defendants. A temporary injunction was granted restraining the defendants from pumping the water from said reservoir for the purpose of irrigating their riparian land. The case was tried on motion to dissolve, and the temporary injunction previously granted was modified so as to permit the defendants to divert the waters from the reservoir when the same were running over the dam of plaintiffs. Otherwise the motion was overruled. The defendants appealed to the Court of Civil Appeals of the Third District, which reversed the judgment of the trial court, and remanded the cause to the district court, with instructions to dissolve the temporary injunction. 236 S. W. 487. The case is before us on writ of error granted the plaintiffs Charles C. Motl and others.
The plaintiffs are owners in fee simple of about 914 acres of land located in Tom Green county, known as the "Twin Mountain farm," situated on and riparian to Spring creek. The lands were originally the property of Charles Motl and wife, both deceased, and the plaintiffs are their heirs. The defendants are fee-simple owners of about 160 acres of land in Tom Green county, situated on and riparian to Spring creek, but approximately 4 miles up the creek from the lands of the plaintiffs. The defendants' lands are out of two different surveys; one being survey 656 and the other survey 655, patented in 1857.
Spring creek is a natural stream, tributary to the South Concho river, emptying into the Concho above the lands belonging to the plaintiffs. It has a well-defined channel, and the bed has an average width, from its mouth to practically its head, of more than 30 feet; but the waterflow therein in ordinary seasons is less than 30 feet wide, and none of the survey lines bordering thereon cross the same. The lands of both plaintiffs and defendants are within the arid portions of the state, in which, by reason of insufficient rainfall, irrigation is necessary for agricultural purposes.
In 1886 John R. Nasworthy, who owned the "Twin Mountain farm," contracted to sell and convey it to one William Lackey as soon as the latter should procure irrigation for the same and place it in cultivation. At that time one P. C. Lee, a predecessor in title of the defendants, owned the said surveys 655 and 656. Lackey and Nasworthy approached Lee, requested and obtained his verbal consent to erect a dam and ditch on the lands now owned by the defendants, and at the places where are now located the dam and ditch involved in this suit. In the spring of 1886 Lackey proceeded with the construction, and built a wooden and earthen dam across Spring creek on survey 655; the northern end of the dam being on a part of one of the surveys now owned by defendants. By means of this dam Lackey impounded the waters of the creek, backing the same up the creek. He also constructed a ditch from the dam and its reservoir through survey 655, down and over the "Twin Mountain farm," and put in cultivation that year about 700 acres of the farm, which he irrigated.
On October 20, 1886, John R. Nasworthy who actually owned the land, in compliance with his agreement with Lackey, conveyed to the latter, by general warranty deed, said "Twin Mountain farm." Lackey continued to take and appropriate the waters by means of the dam and ditch referred to, and to irrigate about 700 acres of said farm therewith, from the time he began continuously until October 15, 1886, on which date he sold and conveyed the farm, dam, and ditch to J. S. Fowlkes, for a consideration of $12,500. The said Fowlkes continued to take and appropriate said waters by means of said dam and ditch, and to irrigate and cultivate said farm, continuously from the time of his purchase until he sold the same to Charles Motl, the ancestor of plaintiffs, in 1899, as hereinafter detailed.
In 1889, while he owned said farm and ditch, Fowlkes, for the purpose of complying with the irrigation act of 1889, made and filed the following affidavit:
This affidavit, signed and sworn to by said Fowlkes on November 21, 1889, accompanied by a map, showing said farm, dam, and ditch, was filed by Fowlkes for record with the county clerk of Tom Green county, the county in which the headgate of said ditch was and is situated, and was recorded by said clerk in the irrigation ditch records of said county.
On November 13, 1899, Fowlkes, for a consideration of $15,000, sold and conveyed to Charles Motl, the ancestor of the plaintiffs, the "Twin Mountain farm," and "also the dam and irrigating ditch which supplies said lands with water for irrigating, the same being known as the Twin Mountain farm, dam, and ditch, and all water rights and privileges secured by said dam and ditch, except, however, the right of W. M. Johnson to irrigate his farm, being six hours of water every eight days, to which said Johnson is entitled, and except said right of Johnson, especially reserved, the entire right to said dam and ditch and the water supply of same is hereby conveyed to said Motl." (Italics ours.)
At the time of this sale and purchase, farms not irrigated were selling at about $5 per acre. At that time the then owners of surveys 655 and 656 lived at San Angelo, about 10 miles from the farm, dam, and ditch, and it was generally known in said town that said "Twin Mountain farm" was being irrigated from water obtained from the dam, ditch, and reservoir on said surveys, and no objection was made at that time by the owners of these surveys to the diversion and appropriation of such waters. At that time the owners of surveys 655 and 656 were using them for pasturage purposes only, and had no use for the water in the creek, except for domestic and stock-raising purposes, and there was plenty of water there for said purposes in addition to that which was being appropriated and used for irrigation by Charles Motl.
In the years 1907 and 1908 Charles Motl rebuilt the original dam put in by Lackey with a concrete dam, at an actual cost and outlay in money of about $1,500, besides the labor of himself and his boys. The concrete dam is at the same point as the original one, and is of substantially the same height, and the ditch leading from it is approximately the same size as the original ditch, and is capable and has diverted, except in later years, when there was a scarcity of water, approximately the same amount of water for irrigating the "Twin Mountain farm" as it did when originally built. The dam is a substantial structure, some 8 feet high, 4 to 6 feet wide at the base, 32 inches at the top, 425 feet long, and forms a reservoir approximately 8,400 feet long, covering about 105 acres, with a holding capacity of approximately 650 acre-feet.
Motl, from the time he purchased the farm until his death in 1917, did, and the plaintiffs after his death have, continuously and uninterruptedly diverted and appropriated the waters of Spring creek by means of the dams and ditches described, and have used the same in irrigating and cultivating crops on the "Twin Mountain farm." During all this time, until more recent years, they have irrigated and cultivated between 600 and 700 acres, and have diverted and appropriated for that purpose all the waters of Spring creek that their ditch and dam would furnish. In recent years the waters of said creek have been so diminished, by reason of diversion and use for irrigation above their dam, that they have not been able to get sufficient water to irrigate their whole farm, irrigating and cultivating only between 400 and 500 acres of it. During the winter months, when there was not much...
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