Texas Water Rights Commission v. Wright

• Decision Date: 13 January 1971
• Docket Number: No. B--1805,B--1805
• Citation: 464 S.W.2d 642
• Parties: TEXAS WATER RIGHTS COMMISSION et al., Petitioners, v. L. A. WRIGHT et al., Respondents.
• Court: Texas Supreme Court

Page 642

464 S.W.2d 642

TEXAS WATER RIGHTS COMMISSION et al., Petitioners, v. L. A. WRIGHT et al., Respondents.

No. B--1805.

Supreme Court of Texas.

Jan. 13, 1971.

Rehearing Denied Feb. 24, 1971.

Crawford C. Martin, Atty. Gen., Roger Tyler, Asst. Atty. Gen., Frank R. Booth, Austin, Hill & King, Neal King, Mission, for petitioners.

Graves, Dougherty, Gee, Hearon, Moody & Garwood, Robert J. Hearon, Austin, Mann, Cronfel & Mann, Laredo, for respondents.

POPE, Justice.

This case presents the question of the constitutionality of Article 7519a, ¹ which authorizes the cancellation of water permits upon proof of ten continuous years of non-use. The Texas Water Rights Commission, after a hearing, cancelled two water permits owned by L. A. Wright, Myrlee Wright McNary, and George T. McNary, hereafter called permittees. On appeal, the District Court of Travis County, rendered judgment that the order cancelling the permits was supported by substantial evidence. The court of civil appeals reversed that judgment, holding that Article 7519a, is a retroactive law which violates Article I, Section 16, of the Texas Constitution, Vernon's Ann.St. and violates the due process clauses of the Texas and U.S. Constitutions, 445 S.W.2d 32. We reverse the judgment of the court of civil appeals and affirm that of the trial court.

The parties are in agreement concerning the facts essential to our opinion. Permit No. 260 was granted in 1918, Permit No. 1083 was granted in 1928, and the permittees have succeeded to the rights under the permits. These permits authorized the permittees to divert water for irrigation purposes from the Rio Grande River at a particular point on the left bank of the river. The permits were used and exercised in conformity with statutory requirements until 1954, when a flood washed out the pumps located at the authorized point of diversion. These pumps were not replaced and no water has been diverted through the authorized diversion point from 1954 to the present time.

In 1957, the Texas Legislature enacted Article 7519a. The effective date of the statute was August 21, 1957. On February 27, 1967, the Texas Water Rights Commission, acting pursuant to the statute, gave the permittees notice of a hearing to cancel their permits. After a hearing on May 2, 1967, the Commission ordered the cancellation of the two permits in question.

The 1918 and 1928 water permits were issued under the permit system established by the Water Act of 1913, (Acts 1913, 33rd Leg., p. 358, ch. 171), as amended by the Water Act of 1917, (Acts 1917, 35th Leg., p. 211, ch. 88). Section 46 of the 1917 Act, codified as Article 7544, provided that water permits were subject to forfeiture when water use was 'willfully abandoned during any three successive years.' It was held in City of Anson v. Arnett, 250 S.W.2d 450 (Tex.Civ.App.1952, writ ref. n.r.e.), that to establish willful abandonment of a water permit required proof, not only of non-use, but also of the subjective intent of the permittee to abandon the permit. Basically, the permittees contend that this status of the law fixed their rights under the permits. They contend that Article 7519a would operate retroactively upon their vested rights by changing the law and fixing a new basis for the forfeiture of their permit rights.

Construction of Article 7519a

We first need to construe the statute to determine whether it is an abandonment or a forfeiture or some other kind of statute. Omitting the portions of the 1957 statute concerning notice and hearing, which are not involved in this case, Article 7519a provides:

Art. 7519a. Cancellation of unused permits or certified filings

1. All permits for the appropriation and use of public waters heretofore issued by the Board of Water Engineers of the State of Texas, at least ten (10) years prior to the effective date of this Act or which shall have been issued at least ten (10) years prior to the date of the cancellation proceedings herein authorized, or certified filings filed with said Board * * *, which said permits and certified filings authorize the appropriation and use of public waters, and under which no part of the water authorized to be withdrawn and appropriated has been put to beneficial use at any time during a period of ten (10) consecutive years next preceding the effective date of this Act or the date of the cancellation proceedings herein authorized, whichever is later in time, Shall be presumed to have been wilfully abandoned in that the holder has not been diligent in applying any of such unused water to beneficial use under the terms of the permit or certified filing for each year during the ten-year period and has not been justified in such non-use for each year during the ten-year period. When the Board finds that its records do not show that any water has been beneficially used under any such permit or certified filing at any time during such ten-year period, it shall cause a public hearing to be held on the matter of cancelling such permit or certified filing. * * * (A)nd the Board shall give such record holder or holders of the permit or certified filing sought to be cancelled and other persons interested in the questions to be determined at such hearing an opportunity to be heard and present evidence that water has, or has not, been beneficially used for the purposes authorized under the permit or certified filing during such ten-year period. At the conclusion of the hearing, If the Board finds that no water has been beneficially used for the purposes authorized during such ten-year period, such permit or certified filing shall be deemed as wilfully abandoned, shall be null, void and of no further force and effect, and shall be forfeited, revoked and cancelled by the Board.

2. When the Board of Water Engineers or its successor has determined from its records that all of the public waters authorized to be appropriated under a certified filing, or under a permit issued ten (10) years or more prior to the effective date of this Act, or prior to the date of cancellation proceedings herein authorized, has not been put to a beneficial use at any time during a period of ten (10) consecutive years next preceding the effective date of this Act, or the date of the cancellation proceedings herein authorized, it may cause a public hearing to be held on the matter of cancelling that portion of such permit or certified filing which has not been beneficially used at any time during such ten (10) consecutive years, and if it should appear to the Board that the holder of the permit or certified filing has not been diligent in applying all or any part of such unused water to beneficial use under the terms of the permit or certified filing and has Not been justified in such nonuse or does not have a bona fide intention of putting such unused waters to beneficial use under the terms of the permit or certified filing within a reasonable period of time after the date of such hearing, then such permit or certified filing shall be subject to forfeiture and cancellation by the Board as to such portion of such waters as to which such facts are so found. The absence from the records of the Board of proof of use of such water during said ten-year period shall be sufficient for initiating such cancellation proceedings. In determining what constitutes a reasonable period of time in this paragraph, the Board shall give consideration to expenditures made or obligations incurred by the owner of such permit or certified filing in connection therewith, the purpose to which the water is to be applied, the priority under the general law of such purpose, and the amount of time usually necessary to put such water to a beneficial use for the same purpose when diligently developed. * * *

If the Board should find as a result of such hearing that any portion of the water authorized to be diverted and used under such permit or certified filing has not been put to an authorized beneficial use during said ten-year period, And that reasonable diligence has not been used by the holder or holders in applying such unused portion of said water to beneficial use under the terms of the permit or certified filing, And that such holder has not been justified in such nonuse or does not have a then bona fide intention of putting such unused water to beneficial use under the terms of the permit or filing within a reasonable time after such hearing, the Board shall enter its order cancelling such permit or certified filing as to the portion of the water as to which such findings are made, and said portion of said water shall again be subject to appropriation. (Emphasis added)

Section 1 of the statute concerns total non-use of appropriated water; Section 2 concerns the partial non-use of appropriated water. The main problem arises from the first section. The statute, as appears from the first emphasized portion of Section 1 confuses the concept of abandonment with that of forfeiture. Abandonment is the relinquishment of a right by the owner with the intention to forsake and desert it. City of Anson v. Arnett, supra; 2 Kinney, Irrigation and Water Rights, Sec. 1117 (2d ed. 1912). The statute speaks of diligence and justification and indicates that the Legislature thought those elements were essential to proof of abandonment. The statutory use of the terms abandonment and forfeiture do not fif the common law meaning of either term. In our opinion, however, the emphasized part of the last sentence of Section 1 makes the legislative purpose clear. Even though the Legislature was describing a kind of abandonment or forfeiture which was different from the usual common law concepts, that last sentence shows that the purpose of the statute was to terminate water permits after a hearing upon proof that no water had been beneficially used for a ten-year period. Intent was not to be an element. Moreover the sentence shows that the presumption in the statute was meant to be...