Mud Creek Irr., Agr. & Manuf'G Co. v. Vivian

• Decision Date: 28 May 1889
• Citation: 11 S.W. 1078
• Parties: MUD CREEK IRR., AGR. & MANUF'G CO. <I>v.</I> VIVIAN <I>et al.</I>
• Court: Texas Supreme Court

11 S.W. 1078

MUD CREEK IRR., AGR. & MANUF'G CO.

v. VIVIAN et al.

Supreme Court of Texas.

May 28, 1889.

Appeal from district court, Kinney county.

Clamp & Clamp, for appellant.

GAINES, J.

The appellant, the plaintiff below, sued as a corporation created under the general law, for the purpose of the construction and maintenance of canals for irrigation. It sought by its suit to enjoin appellees from maintaining a dam on Mud creek, above the point at which the waters of the creek entered its works. A demurrer to the petition was sustained, and, there being no offer to amend, the suit was dismissed. From the judgment this appeal is prosecuted, and it is assigned that the court erred in sustaining the demurrer to the petition. The petition alleges, in substance, that the plaintiff company was duly incorporated under the general law, for the purpose of constructing and maintaining two irrigation canals on the creek above named, at a point designated in the charter, to extend in a general direction down the stream where they were to re-enter the channel. It further alleges that the works were completed and received by the state, and that it had opened a valuable farm, with lateral ditches, which was cultivated by the use of water drawn through the canals, and that the defendants had built a dam above its works, which held back and diverted the water so that it had ceased to flow down to the canals. It was also alleged that the corporation had been in the uninterrupted use and enjoyment of the water in the stream for the purposes of irrigation for more than 10 years before the defendants erected their dam, and by reason thereof the plaintiff claimed the exclusive right to the use of the water by prescription. No brief has been filed in this court by appellees, and we are therefore left to conjecture upon what precise grounds the petition was held insufficient. But it is to be noted that, while it may be suspected that the plaintiff is the owner of land abutting upon the stream, and perhaps crossing it, it is nowhere distinctly alleged that such is the fact, nor is it averred that it has acquired any right in the water by purchase or condemnation from any riparian proprietor. The action, judging from the averments in the petition, seems to be based in part upon the theory that the charter of the company, by designation of the locality of the canals, gave it the exclusive right of the water for irrigating purposes in that locality. This we think a mistake. The franchise granted by the charter was the usual powers and privileges conferred upon such corporate bodies as should be organized under the general law of incorporation, together with the right to acquire by gift, purchase, or condemnation such property as was necessary or proper to carry out the objects of its creation. Act April 23, 1874, § 58. The charter conferred the right to acquire water privileges, but it did not confer the privileges themselves. This principle was announced by this court in the case of Tugwell v. Ferry Co., 9 S. W. Rep. 120. We there held that the ferry company, by becoming a corporation under the general law, for the purpose of maintaining a ferry over the Rio Grande river at Eagle Pass, acquired no right to operate such ferry without procuring a ferry license from the commissioners' court of the county in which the town is situated. The corporation, by filing its articles of incorporation in compliance with the law, was authorized to establish and maintain a ferry as a corporation at the point designated in its articles; but...