Tolle v. Correth

• Decision Date: 31 October 1868
• Citation: 31 Tex. 362
• Parties: GEORGE F. TOLLE v. ERNST CORRETH.
• Court: Texas Supreme Court

31 Tex. 362

GEORGE F. TOLLE

v.ERNST CORRETH.

Supreme Court of Texas.

October, 1868.

Where the petition for a writ of error substantially complies with the statute, and the bond conforms to the law, a motion to dismiss will not be sustained. Pas. Dig. art. 1495, note 587.

The colonization law of Texas and the statutes of the state recognize the right to use water for irrigation purposes. Pas. Dig. arts. 574, 584, 4523, 3945-3952.

Where the defendant owned the land upon which there was a spring he had the right to use the water for the purposes of irrigation, provided he restored it back to its natural channel before it reached the lands of the adjoining proprietor, and if the stream was thus weakened so as to damage the adjoining proprietor, the defendant was not liable for such damage.

APPEAL from Comal. The case was tried before Hon. GEORGE H. NOONAN, one of the district judges.

The trial was for damages for obstructing a water-course, or, rather, using it for irrigation purposes, so as to weaken the stream before it reached the land of the plaintiff. The defendant pleaded that he owned the stream, and had the right thus to use the water. The verdict was for the defendant, and the only question considered was the right of the plaintiff to use the water for irrigating purposes.No brief for the appellant has been furnished to the reporter.

Chandler & Carleton, for appellee.

MORRILL, C. J.

A motion is made in this case by the defendant in error to dismiss the writ of error, because: 1st. The petition for the writ of error is defective; and, 2d. There is no legal bond.

There is nothing in the statutes defining the requisitions of a petition for writ of error except what is to be inferred from the duties imposed on the clerk where it shall have been filed.

The petition in this case gives the name and residence of the opposite party, the county in which the judgment was obtained, the term of the court, the number of the cause on the docket, and the judgment, asserts the error, and requests a citation to issue to the defendant in error to appear before the supreme court at Austin at its next term and defend said writ, etc.

The bond is in strict compliance with art. 1517, Pas. Dig.

It is doubtful whether there is a cause in court more free from criticism as to the subjects complained of than this.

The motion is refused.

The question for adjudication is, whether a proprietor of a tract of land in which originates a spring forming a stream, running in a channel through his land and into the land of another person, has a right to divert the stream from the natural channel, and cause it to overflow and irrigate the land, provided the stream resumes its original channel before it enters the land of the adjacent proprietor?

Though there has been a multiplicity of decisions relative to riparian proprietors, and volumes devoted exclusively to water-courses, yet it is believed that the land system of Texas, as handed down from the parent country, presents a new point. The books are full of decisions upon controversies relating to the uses of water-courses for manufacturing purposes, but the cause before the court relates to agriculture.

The colonization law of Coahuila and Texas, of the 24th March, 1825, contemplated that the colonists would be stock-raisers and small farmers. The Mexican government also knew, it is presumed, the importance or rather the necessity of irrigation for agricultural purposes, especially in the western portion of the province. Accordingly we find it decreed, in article 574, Pas. Dig., that “observing the distinction to be made in distributing lands between grazing lands, or those suitable for raising stock, and irrigable tillage land, and that which is not irrigable, this law shall grant to the contractor or contractors for forming new settlements...