State v. Valmont Plantations

• Decision Date: 29 March 1961
• Docket Number: No. 13583,13583
• Citation: 346 S.W.2d 853
• Parties: STATE of Texas et al., Appellants, v. VALMONT PLANTATIONS et al., Appellees.
• Court: Texas Court of Appeals

Page 853

346 S.W.2d 853

STATE of Texas et al., Appellants, v. VALMONT PLANTATIONS et al., Appellees.

No. 13583.

Court of Civil Appeals of Texas, San Antonio.

March 29, 1961.

A. J. Vale, Pope & Pope, F. R. Nye, Rio Grande City, L. Hamilton Lowe, Austin, for Valmont Plantations and others.

Will Wilson, Atty. Gen., James Ludlum, First Asst. Atty. Gen., Wayland Rivers, Sp. Asst. Atty. Gen., Edward A. Cazares, Houghton Brownlee, Jr., Charles D. Cabiniss, Asst. Attys. Gen., A. G. Haigh, Edinburg, Arthur A. Klein, Harlingen, Wm. M. Jenkines, Jr., Weslaco, J. D. Vollmer, Mercedes, Kent, Brown & George, Harlingen, Smith, McIlheran & Jenkines, Weslaco, Truett Hubbard, Donna, Kelley, Looney, McLean & Littleton, Edinburg, Vinson, Elkins, Weems & Searls, Houston, James W. Wilson, Washington, D. C., Sawnie B. Smith, Edinburg, A. W. Walker, Jr., Dallas, Hill, King, McKeithan & Reynolds, Mission, Victor W. Bouldin, Houston, for the State and others.

Strickland, Wilkins, Hall & Mills, Mission, for G. M. Pursell and others.

Cunningham & Yznaga, Brownsville, for R. F. Breeden and others.

Ransome & Ray, Brownsville, for Edward Roos and others.

POPE, Justice.

This is a class action to determine whether, in the absence of specific grants of irrigation waters, Spanish and Mexican land grants along the Lower Rio Grande have appurtenant riparian irrigation rights. Broadly stated, it is a suit between appropriators and riparians. The State and numerous water districts assert their rights in the former category; owners of lands out of the original grants assert rights similar to those commonly called riparian rights. Both groups have appealed from the judgment. The trial court concluded that the laws of Spain when the grants were made, did not recognize a riparian right of irrigation, but required an irrigator to exhibit his title to irrigation waters. ¹ The riparians protest that conclusion. However, the trial court denied the claims of the appropriators and concluded that the law of Texas has erroneously been settled to the contrary. ² The appropriators protest that conclusion. The trial court then defined the watershed so narrowly that most of the riparian claims were also denied. There are other subsidiary issues, but the controlling question is whether the Spanish and Mexican laws recognized riparian rights to irrigate. The trial court properly denied the riparians' plea in abatement for non-joinder of multiple up-river water diverters, because this is not a partition suit and the judgment is not bindings upon non-parties as to their share of the river waters. Mud Creek Irr. Agr. & Mfg. Co. v. Vivian, 74 Tex. 170, 11 S.W. 1078; Wilson v. Reeves County Water Imp. Dist. No. 1, Tex.Civ.App., 256 S.W. 346; 1 Wiel, Water Rights in the Western States (3rd Ed.) 687-688.

In our opinion, the Spanish and Mexican grants along the lower Rio Grande did not carry with them appurtenant irrigation rights. We have arrived at our conclusion after considering four basic questions: (1) What law controls the case? (2) What were the laws of Preninsular Spain, Colonial New Spain, the Republic of Mexico, and the later laws of Mexico at the time when certain bancos were cut from Mexico? (3) What were the facts pertaining to each grant and did those facts impliedly grant the right to irrigate with Rio Grande waters? (4) Has stare decisis settled the law that Spanish and Mexican grantees acquired riparian rights to irrigate?

I. The Applicable Law

The law of Spain and Mexico at the time of each grant is the law applicable. The lands involved extend along the north bank of the Rio Grande from the sough line of Zapata County to the Gulf of Mexico. ³ The King of Spain and the Mexican State of Tamaulipas granted these lands during the eighteenth and nineteenth centuries. No grant mentioned nor expressly granted irrigation waters. Eleven bancos, cut from Mexico between 1905 and 1948, are also in suit. We start, therefore, upon the solid premise that grants from Spain, Mexico and Tamaulipas are governed by the law of the sovereigns when the grants were made. Luttes v. State, 159 Tex. 500, 324 S.W.2d 167, 176; Rudder v. Ponder, 156 Tex. 185, 293 S.W.2d 736; State v. Balli, 144 Tex. 195, 190 S.W.2d 71; Manry v. Robison, 122 Tex. 213, 56 S.W.2d 438; Miller v. Letzerich, 121 Tex. 248, 49 S.W.2d 404, 408, 85 A.L.R. 451; State v. Grubstake Investment Association, 117 Tex. 53, 297 S.W. 202; Mitchell v. Bass, 33 Tex. 259. The law of those granting sovereigns is the law of Texas which it is our duty to know and follow. State v. Sais, 47 Tex. 307, 318; State v. Cuellar, 47 Tex. 295, 305. Riparians dispute that rule and argue that while the Treaty of Guadalupe-Hidalgo, 9 Stat. 922, forbids a State's diminution of the land titles granted by former sovereigns, the adoption of the common law in 1840, 2 Gammel, Laws of Texas, 177-180, the passage of Texas Confirmation Act of 1852, 3 Gammel, Laws of Texas, 941-649, and the adoption of the Constitutions of 1845 and 1876, Vernon's Ann.St., operated as relinquishments of irrigation waters to the lands along the Lower Rio Grande. That argument was recently laid to rest when the claim was made that Mexican and Spanish grants were bounded by the seashore, as fixed by the common law instead of the civil law line. The Buena Vista Grant was there in suit, as it is here. The Court of Civil Appeals in Luttes v. State, 289 S.W.2d 357, 359, rejected the argument because it was contrary to the rule announced in the Balli case, 144 Tex. 195, 190 S.W.2d 99. The Supreme Court, after a review of the authorities, affirmed the intermediate court and forcefully stated that every decision, observation or assumption that has ever been made by the Supreme Court on the subject was against the contention. Luttes v. State, supra. The same Texas Congress which adopted the common law, later enacted a statute which stated:

'Sec. 6. Be it further enacted, that it shall not be necessary to prove an actual trespass on the part of the defendant to support this action, nor shall this act be so construed as to alter, impair or take away the rights of parties as arising under the laws in force before the introduction of the common law, but the same shall be decided by the principles of the law or laws under which the same accrued, or by which the same were regulated, or in any manner affected.' 2 Gammel, Laws of Texas, 310.

That law has been re-enacted with each revision. Article 4812, Revised Statutes of 1879; Article 5276, Revised Statutes of 1895; Article 7759, Vernon's Sayles Revised Civil Statutes of 1914; Article 7392, Vernon's Annotated Civil Statutes of 1925.

Only with respect to the San Pedro Carricitos is there any contention that the grants were made after December 19, 1836, the date the Texas Republic fixed the Rio Grande as its southern boundary. 1 Gammel, Laws of Texas, 1193-1194. Two owners of lands in that grant argue that the San Pedro grant was made in 1843 by the Mexican government, and that, whatever may be decided as to the other grants, their rights are governed by the common law. In our opinion, this grant stands upon the same footing as the other grants. The grant was sufficiently perfected and was good against the Mexican government on December 19, 1836, and is therefore within the protection of the treaty of Guadalupe Hidalgo. 9 Stat. 926. The record shows that the lands were denounced and then surveyed on November 18, 1834. The survey was signed the next day. Because the survey was made, it is presumed that it was made after written application and after it was determined that adjoining proprietors did not protest. Article 7, Colonization Law of Tamaulipas of 1826, 1 Gammel, Laws of Texas, 454-459; Johns v. Schutz, 47 Tex. 578; Cavazos v. Trevino, 35 Tex. 133. In fact, the survey recites that these are the true facts. The next step in the proceedings was the transmittal of the expediente to the governor, by whom title 'shall be issued'. Article 8, Colonization Law of 1826, supra. The grant was paid for. This fact is recited in the governor's decree of grant of 1843. When it was paid for is not stated, but it will be presumed that the alcalde properly performed his duties and collected the fees required by Sec. 24 of the Colonization Act, and that he did this before transmitting the expediente to the governor as required by Article 8 of the Colonization Law. State v. Gallardo, 106 Tex. 274, 166 S.W. 369, 373; Haynes v. State, 100 Tex. 426, 100 S.W. 912. As in State v. Gallardo, 'everything necessary to make up and complete the right of the purchasers to receive the absolute legal title was done both by them and the government through its officials prior to December 19, 1836, and upon that date nothing was left undone by either that could constitute the substance of the right.' See also, State v. Balli, Tex.Civ.App., 173 S.W.2d 522, 535, affirmed 144 Tex. 195, 190 S.W.2d 71; Kenedy Pasture Co. v. State, 111 Tex. 200, 231 S.W. 683. That these facts are recognized by the State of Texas is further confirmed by the Relinquishment Act of 1852, which named and included the San Pedro de Carricitos grant along with the others involved in this suit. 3 Gummel, Laws of Texas, 941-49. See, also, Boquillas Land & Cattle Co. v. Curtis, 213 U.S. 339, 29 S.Ct. 493, 53 L.Ed. 822; Clark v. Hiles, 67 Tex. 141, 2 S.W. 356. The grant was sufficiently perfected before December 19, 1836, and the grantees were vested with right to title as against the Mexican government. The grant stands on the same basis as the rest of the grants and is governed by the law of Spain and Mexico.

II. The Laws of Spain and Mexico

We shall, in order, examine the laws of Peninsular Spain, New Spain, Mexico before Texas Independence, and Mexico after Texas Independence. From each of these sources, we learn that Spain and Mexico did not recognize riparian irrigation rights in navigable river waters.

Spain.

The laws of Spain are evidenced by the (1) codes, (2)...