State v. Hidalgo County Water Control & Improvement Dist. No. Eighteen

• Decision Date: 27 March 1969
• Docket Number: No. 261,261
• Citation: 443 S.W.2d 728
• Parties: The STATE of Texas et al., Appellants, v. HIDALGO COUNTY WATER CONTROL AND IMPROVEMENT DISTRICT NO. EIGHTEEN et al., Appellees. . Corpus Christi
• Court: Texas Court of Appeals

Page 728

443 S.W.2d 728

The STATE of Texas et al., Appellants, v. HIDALGO COUNTY WATER CONTROL AND IMPROVEMENT DISTRICT NO EIGHTEEN et al., Appellees.

No. 261.

Court of Civil Appeals of Texas.

Corpus Christi.

March 27, 1969.

First Motions for Rehearing Denied June 5, 1969.

Second Motions for Rehearing Denied July 10, 1969.

ATTORNEYS OF RECORD

Adams, Graham, Lewis & Graham, Harlingen, Aldrich, McDonald & Stewart, Edinburg, Atlas, Schwarz, Gurwitz & Bland, McAllen, Clayton R. Baird, Edinburg, Frank R. Booth, Executive Director, Texas Water Rights Commission, Austin, Vinson, Elkins, Weems & Searls, Victor W. Bouldin, Houston, R. M. Bounds, McAllen, Norton A. Colvin, San Benito, Albert E. Coneway, Harlingen, Carl Conley, Raymondville, Cox & Patterson, McAllen, Paul Y. Cunningham, Paul Y. Cunningham, Jr., Brownsville, G. F. Dohrn, Mission, Charles T. Downs, Pharr, Ewers, Toothaker, Ewers, Abbott & Evins, R. Glenn Jarvis, McAllen, Barnes & Elick, Charles Elick, McAllen, Ferrero, Snedeker & Vela, Harlingen, Rafael H. Flores, John R. Freeland, McAllen, Osce Fristoe, Harlingen, Garcia & Warburton, Gibbon & Harper, Harlingen, Milo J. Glarner, Raymondville, Greenwood & Russell, Harlingen, Arnulfo Guerra, Roma, H. P. Guerra III, Emilio Gutierrez, Rio Grande City, J. C. Hall, Edinburg, Hall, Mills & Hall, Harry Hall, Mission, Sid L. Hardin, Edinburg, Hemphill & Storter, Brownsville, Henrichson &amp Bates, E . G. Henrichson, Edinburg, Carl M. Higdon, Jr., Elsa, Hooper & Robinson, Elbert Hooper, Jr., Austin, Truett Hubbard, Donna, Harley E. Jackson, McAllen, Kelley, Looney, McLean & Littleton, J. C. Looney, Ralph Alexander, Edinburg, Hill & King, Neal King, Mission, Arthur A. Klein, Harlingen, Lauderdale, Bowe & Lauderdale, John W. Bowe, Mercedes, William L. Lemen, San Juan, Raul L. Longoria, Edinburg, Crawford Martin, Atty. Gen., of Texas, Roger Tyler and Vince Taylor, Asst. Attys. Gen., of Texas, Austin, Matthews, Nowlin, Macfarlane & Barrett, W. L. Matthews, San Antonio, W. R. Montgomery, Edinburg, Fred J. Newland, Harlingen, Nielsen & McCormick, S. P. Nielsen, Raymondville, Frank R. Nye, Jr., Rio Grande City, Norman L. Orme, Raymondville, Willis G. Perkin, Pharr, Pope & Pope, John A. Pope, Jr., Rio Grande City, Rankin, Kern, Martinez & Van Wie, H. H. Rankin, Jr., Stonewall Van Wie III, McAllen, Ransome & Ray, Rufus G. Ransome, Rentfro & Rentfro, Brownsville, Robinson, Strawn & Robinson, Raymondville, R. P. Sanchez, McAllen, Baker, Botts, Shepherd & Coates, John S. Sellingsloh, Frank W. R. Hubert, Jr., Houston, Melbert Schwarz, Jr., Houston, Smith, McIlheran & Jenkines, Garland Smith, Weslaco, Carter, Stiernberg, Skaggs & Koppel, Harlingen, Mathews, Nowlin, Macfarlane & Barrett, P. H. Swearingen, Jr., San Antonio, Clara B. Thompson, Port Lavaca, A. J. Vale, Rio Grande City, Ralph A. Vidaurri, Edinburg, J. D. Vollmer, Mercedes, Jackson, Walker, Winstead, Cantwell & Miller, A. W. Walker, Jr., Dallas, Jack Wiech, Brownsville, McGinnis, Lochridge, Kilgore, Byfield, Hunter & Wilson, James W. Wilson, George Byfield, Austin, Hector Yznaga, D. J. Lerma, Brownsville, Linda Schulze, Houston, Zalkin & Cohen, New York City, Ray G. Replogle, Bedford, Pa., Nelson & Campbell, Altoona, Pa., Robert I. Manuel, North Adams, Mass.

JAMES R. NORVELL, Special Justice.

This is an appeal from the final judgment rendered in Cause B-20,576 on the docket of the District Court of Hidalgo County, 93rd Judicial District, styled, The State of Texas, et al v. Hidalgo County Water Control and Improvement District No. Eighteen, et al, and commonly referred to as the Lower Rio Grande Valley Water Suit. In Hidalgo & Cameron Counties Water Control & Improvement District No. Nine v. J. H. Starley, Special Judge, 373 S.W.2d 731 (Tex.Sup.1964), the Supreme Court pointed out that this suit (No. B-20,576) 'was filed by the State in 1956 to obtain an adjudication of the water rights to the American share of the waters of the Rio Grande. The fifth amended original petition of the State names approximately three thousand defendants who claim the right to use water from the Rio Grande for a variety of uses, including the irrigation of over 850,000 acres of land situated in the Counties for Starr, Hidalgo, Cameron and Willacy.' The judgment from which this appeal is prosecuted adjudicates the water rights on that segment of the river system lying immediately below the Falcon dam and extending to the mouth of the Rio Grande.

I. Introductory

Because of a severe drought and water shortage in the 1950's, suits were filed which invoked the judicial power to control the American waters in the lower Rio Grande. Some of these cases reached the appellate courts in 1952. See, Hidalgo County Water Improvement District No. Two v. Cameron County Water Control & Improvement District No. Five, 253 S.W.2d 294 (Tex.Civ.App.1952, wr. ref'd, n. r. e.), and Hidalgo County Water Improvement District No. Two v. Cameron County Water Control & Improvement District No. Five, 250 S.W.2d 941 (Tex.Civ.App.1952, application for prohibition and injunction denied). Because of this situation and the completion of the Falcon dam, the State of Texas filed the present suit calling for an adjudication of the water rights of those owning or claiming water rights to lands lying below Falcon Lake or Reservoir. These lands lie within the delta area of the Rio Grande. The contest between the appropriators and those asserting riparian claims to the waters of the river was severed from the cause and docketed under the style of State of Texas v. Valmont Plantations. This severed cause reached the Supreme Court in 1962 and that court held that the Spanish and Mexican grants along the lower Rio Grande did not carry with them appurtenant irrigation rights. The opinion of Mr. Justice Pope of the San Antonio Court of Civil Appeals was adopted as the opinion of the Supreme Court. See, Valmont Plantations v. State of Texas, 163 Tex. 381, 355 S.W.2d 502; 346 S.W.2d 853. After an exhaustive review of the applicable authorities, the Supreme Court disapproved of certain obiter dicta contained in the opinion rendered in Motl v. Boyd, 116 Tex. 82, 286 S.W. 458 (1926), which contained a discussion of Spanish and Mexican water law, although no Spanish or Mexican grant was involved in the case. The circumstance that numerous tracts of land in the lower Rio Grande Valley, having no connection with the legal title to an appropriative right, have been under irrigation for a long period of time does not authorize us to disregard the Valmont decision and say that such lands have a legal appurtenant water right under the appropriation statutes of this State. Further, we are not concerned with the respective merits of the riparian and appropriation systems . The debate with reference thereto has been settled by the Valmont decision insofar as the lower Rio Grande Valley is concerned.

In addition to Valmont, the following cases connected with the present controversy have reached the appellate courts: Hidalgo County Water Improvement District No. Two v. Blalock, District Judge, 157 Tex. 206, 301 S.W.2d 593 (1957); Hidalgo County Water Control & Improvement District No. One v. Boysen, 354 S.W.2d 420 (Tex.Civ.App.1962, wr. ref'd); Hidalgo & Cameron Counties Water Control & Improvement District No. Nine v. Starley, Special District Judge, 373 S.W.2d 731 (Tex.Sup.1964); and State of Texas v. Starley, Special District Judge, 413 S.W.2d 451 (Tex.Civ.App.1967, no writ, application for mandamus).

The final judgment from which this appeal is prosecuted was rendered on August 1, 1966 to become effective on September 1, 1966. The State of Texas brought the case here and numerous parties, both plaintiff and defendant below, appear herein, and some of them present contentions both as appellants and as appellees. When necessary, the litigants will be referred to by name. As the briefs herein contain well over a hundred points and counterpoints, we shall not unduly lengthen this opinion by noticing particular points except in those instances where it is essential to an understanding of our holdings.

The trial court in its judgment set aside a reserve of 60,000 acre feet of the American waters in the Falcon reservoir for municipal purposes and, in addition, made certain allocations of water in behalf of the towns and cities within the area. After an appeal had been duly perfected to this court, all the parties who had filed points attacking the municipal allotment of the trial court entered into a stipulation with the cities affected under which it was agreed, subject to the approval of this court, that the trial court's judgment as to the municipal allotment should be modified and judgment rendered for a somewhat smaller amount of water than that fixed by the court below. The stipulation also provided for a distribution of the water allotment between the interested municipalities. This court approves of the stipulation so agreed upon and judgment will be modified in this particular as therein provided.

II. The Trial Court's Judgment and the Priorities Established Therein

The judgment below was rendered by Honorable J. H. Starley, Special District Judge. It consists of a Foreword and four additional parts which are referred to as sections . According to the Foreword, 'Section I is the formal Decree itself . which by reference incorporates Section II, the Decision, Section III, the individual rights found and adjudicated, and Section IV, the map section for the purpose of identification of the respective tracts.' ¹

In addition to the 60,000 acre foot reserve above mentioned, the trial court made various allowances or allotments for Municipal, Industrial and Domestic Uses, including the watering of livestock. As modified by the stipulation heretofore mentioned, these allowances and allotments are approved and judgment as to them is rendered accordingly.

As to the water rights for irrigation purposes, the trial court did not proceed...