San Antonio River Authority v. Lewis

• Decision Date: 28 November 1962
• Docket Number: No. A-8304,A-8304
• Citation: 363 S.W.2d 444
• Parties: SAN ANTONIO RIVER AUTHORITY, Petitioner, v. G. Garrett LEWIS et al., Respondents.
• Court: Texas Supreme Court

Page 444

363 S.W.2d 444

SAN ANTONIO RIVER AUTHORITY, Petitioner, v. G. Garrett LEWIS et al., Respondents.

No. A-8304.

Supreme Court of Texas.

Nov. 28, 1962.

Rehearing Denied Jan. 23, 1963.

Sawtelle, Hardy, Davis & Goode, San Antonio, for petitioner.

Foster, Lewis, Langley & Onion, San Antonio, for Lewis et al.

Oliver & Oliver, San Antonio, for Daniel & Townsend.

CALVERT, Chief Justice.

The judgment rendered herein on February 14, 1962, is set aside and the judgment of the Court of Civil Appeals is affirmed. The opinions heretofore filed herein are withdrawn and the following is now filed as the opinion of the court.

This is a declaratory judgment suit.

Petitioner is a governmental agency created by the Legislature pursuant to authority contained in Section 59 of Article 16 of the Constitution of Texas, Vernon's Ann.St. See Art. 8280-119, Vernon's Annotated Texas Civil Statutes. In discharge of its duty of flood control and for the protection of the lives, health and property of those living or owning property in the area, it is engaged in a project of straightening, widening and deepening the channel of the San Antonio River. By this suit it seeks a judgment declaring that it is not responsible in damages to the respondents-landowners by reason of diverting the waters of the river from their accustomed channel to a new channel some two hundred feet to the west. The trial court, by summary judgment, did so declare. The Court of Civil Appeals at San Antonio, the Chief Justice dissenting, reversed the judgment of the trial court and remanded the case for trial of respondents' claims for damages which are asserted by cross-action. 343 S.W.2d 475.

(1) Respondents claim certain rights to water for irrigation under grants made by the Mexican government in 1824. Their position is that these rights are vested property rights which have been taken, damaged or destroyed by the changing of the river channel and for which they are entitled to compensation under Section 17 of Article I of the Constitution of Texas. ¹ Petitioner's claim to non-liability rests upon an assertion that respondents have no vested property rights which are taken, damaged or destroyed by the changing of the river channel, and that, in any event, the changing of the river dhannel is an exercise of the police power of the State for the consequences of which there can be no liability in damages.

The trial court was of the opinion that respondent's 'irrigation rights' are 'vested property rights,' but that such rights were granted, and are held, subject to 'the inherent power of the State, reasonably exercised, to protect the public health, safety and welfare without making compensation' for the taking or damaging thereof. Based upon that opinion, or conclusion, the court adjudged the taking of respondents' rights to be damnum absque injuria. The Court of Civil Appeals also held that respondents have certain vested property rights which are being taken, damaged or destroyed by the changing of the channel of the river, but, contrary to the declaration of the trial court, held that the fact that the river channel was being changed by petitioner in the exercise of the State's police power did not insulate it against liability.

In order to determine the rights of the parties it is necessary to summarize the material facts which appear to be without dispute.

In 1730 the Spanish government established the Mission of San Juan Capistrano on the east side of the San Antonio River, a few miles south of the original site of the present City of San Antonio. Mission personnel, no doubt with the aid of Indian labor, built an acequia or irrigation ditch on the east side of the river in 1731. Water was diverted from the river by a dam, built in the bed of the river, which raised the water level and permitted water to enter the ditch by gravity flow through a headgate. Water from the river was thus made available to the mission and for irrigation of lands adjacent to the ditch. The irrigation system is similar to others built by early Spanish settlers in and near San Antonio and El Paso. ²

In 1824 Mexico, then an independent nation of which Texas was a part, made grants of land and of water to settlers along the San Juan ditch. One of these grants, fairly illustrative of all, is copied as a footnote to the opinion of the Court of Civil Appeals. See 343 S.W.2d 478-479. The instrument was executed by Jose Antonio Saucedo, Gefe Politico of the Province, on February 5, 1824, and recites:

'* * * I have decided to grant him (Francisco Maynes) and I do hereby grant him in the name of the Mexican Nation, two dulas ³ of irrigation water with the accompanying land for cultivation; the water to be taken from the irrigation conduit of the Mission of San Juan Capistrano, so that as his own property he may cultivate and enjoy the land within the term prescribed by law; he may possess it for his own use or the use of his successors at the rental of 10 pesos annually which he must pay for the said dulas granted him for the period of four years, in accordance with the provisions of the Very Excellent Provincial Deputation. After the four years have elapsed he may enjoy the two dulas of irrigation water, clear of all encumbrance and as such he may sell or mortgage them at his pleasure.

'To this end Francisco Maynes will be placed in formal possession of the two dulas of water, and will be provided with any certified copy or copies he may request in protection of his title.'

On February 7, 1824, Saucedo executed another instrument which recites:

'I * * * went to the land which by the preceding decree I had granted to the petitioner, Bachelor Francisco Maynes, and there I measured two suertes of land with 200 varas on each frontage. * * *

'I placed the petitioner, Bachelor Francisco Maynes, in real and corporal possession of the land with its accompanying irrigation water, * * *.'

On June 25, 1825, Saucedo signed a writing in which he recited: 'Francisco Maynes paid 40 pesos to this government, the amount of the five pesos annual tax imposed on him for four years on each of the two dulas of irrigation water with the accompanying land which were granted to him in the labor of San Juan Mission.'

The dam, headgate and ditch, although renewed and repaired from time to time, were still in existence, and in use as facilities for irrigating respondents' lands until the river channel was changed by petitioner. Except for destruction of the dam, none of the physical structures of the irrigation system have actually been taken, damaged or destroyed by petitioner. Petitioner has installed a pump in the new channel of the river which is being used temporarily to pump water into the irrigation ditch, without prejudice to the legal rights of the parties.

To clarify the question before us it may be well to note some questions which are not here for decision. Petitioner does not deny that respondents have vested property rights to take water from the San Antonio River for irrigation; it assumes they do, and so will we. Petitioner does not claim that diversion of the waters to a new channel is in aid of navigation. Petitioner does not not question respondents' rights of access over its land to the new channel of the river for the purpose of obtaining the water to which they are entitled, and the trial court's judgment confirmed, in effect, easements in respondents across lands of petitioner for the transportation of the water to the mouth of the San Juan ditch by any means which do not seriously interfere with flood control or the flood control project. As we analyze respondents' pleadings, they do not seek to recover damages based on the value of their lands as depreciated by loss of, or rights to obtain the granted waters from composing the irrigation conduit-the ditch, the headgate and the dam; rather, they seek to recover damages based on the value of their lands as depreciated by loss of their righs to obtain the granted waters from their accustomed channel through the irrigation conduit. We will approach the problem on that basis.

(2) Viewed in the proper factual context, the irrigation water, although to be taken from the San Juan ditch, was granted from the San Antonio River. True, as stated in the opinion of the Court of Civil Appeals, the river is not mentioned in the grants, but the river was the real source of the waters granted. The question to be decided, then, as the issue has been narrowed, is whether under the Mexican grants respondents acquired, as against the sovereign, vested property rights to have the waters of the San Antonio River continue to flow in their accustomed channel. The question must be answered under Mexican law applicable when the grants were made. Manry v. Robison, 122 Tex. 213, 56 S.W.2d 438; Luttes v. State, 159 Tex. 500, 324 S.W.2d 167.

(3) Associate Justice Pope of the Fourth Court of Civil Appeals at San Antonio has recently written a scholarly and comprehensive analysis of the sources from which the law applicable to Spanish and Mexican grants in this state must be derived. See The State of Texas v. Valmont Plantations, Tex.Civ.App., 346 S.W.2d 853. There is no need to undertake here a second analysis, no doubt of less luster, of the same matter. History records that the constitutional and statutory law of the Mexican nation and of its component States, like the government itself, was in an unsettled state from the date of the independence of the nation in 1821 until the promulgation of the Federal Constitution of the United Mexican States on October 4, 1824. It was during this period that the water grants to respondents' predecessors in title were made. Research does not disclose any Mexican constitutional, code or other law which, in itself, either expressly or impliedly governs the question as it has been stated above. In the absence of any such law it is an accepted fact that the civil law of Spain was the law of Mexico and fixed...