Wilson v. Reeves County Water Improvement Dist. No. 1

• Decision Date: 15 November 1923
• Docket Number: (No. 1519.)
• Citation: 256 S.W. 346
• Parties: WILSON v. REEVES COUNTY WATER IMPROVEMENT DIST. NO. 1 et al.
• Court: Texas Court of Appeals

256 S.W. 346

WILSON v. REEVES COUNTY WATER IMPROVEMENT DIST. NO. 1 et al.

(No. 1519.)

Court of Civil Appeals of Texas. El Paso.

November 15, 1923.

Appeal from District Court, Reeves County; Chas. Gibbs, Judge.

Suit by W. F. Wilson against Reeves County Water Improvement District No. 1 and others. Judgment for defendants, and plaintiff appeals. Affirmed.

Ben Palmer, H. G. Russell, and J. A. Drane, all of Pecos, for appellant.

J. E. Starley, of Dallas, and J. F. Ross, of Pecos, for appellees.

HIGGINS, J.

The appellant, Wilson, brought this suit against the Reeves County water improvement district No. 1 (hereinafter referred to as the water district), the five individuals composing its board of directors, also A. C. Schreyer and others. The litigation presents a controversy over the use of the waters of Toyah creek for irrigation purposes. The plaintiff is the owner of land riparian to the creek. The water district is a water improvement and irrigation district incorporated under the laws of Texas, distributing water taken from the creek to various landowners in its district; the point at which it diverts the water being above plaintiff's land. The gist of the plaintiff's complaint, as contained in the first count of the petition, was that defendants were diverting and using the water to the exclusion of his right as a riparian owner, and the substance of the relief sought was to establish against the defendants his riparian right to the use of the water, and to enjoin them from diverting more than the proportionate part of the water to which the riparian owners in the water district were entitled and to enjoin the district from delivering any water to non-riparian land. The water district and some of the other defendants filed a plea in abatement, setting up the want of necessary parties defendant, which was sustained upon a hearing of the evidence offered in support thereof. The plaintiff declining to join the parties held to be necessary, the suit was dismissed, from which order this appeal is prosecuted.

The questions presented in the briefs invoke a determination of who are and who are not necessary parties in an action of this kind, and the desire is expressed of all parties to obtain a full ruling upon the same for future guidance.

In the first place, it is necessary to bear in mind the distinction which exists between necessary and proper parties; also that the nonjoinder of merely proper parties is not fatal, whereas the nonjoinder of necessary parties is fatal, and the court will not proceed to final judgment until such parties have been joined. Various definitions and rules have been announced for determining who are necessary parties correct in themselves, but whose application to various actions is not always pertinent, and, in some instances, if pertinent, its application not readily apparent.

As applied to actions such as here presented, it seems to this court that the best definition of "necessary parties" is that they "are those who not only have an interest in the subject-matter of the controversy, but an interest of such a nature as that a final decree cannot be made without affecting their interests." Beach on Modern Equity Practice, § 55; Shields v. Barrow, 17 How. 130; 15 L. Ed. 158.

In the third paragraph of the plea the names and addresses of various persons were given to whom it was alleged water was being supplied by the water district, and that such persons were entitled to the use thereof, some by virtue of riparian ownership of the land to which it was supplied, others by virtue of contracts of purchase, by appropriation, limitation, or prescription. There is evidence to support these allegations, and as to such persons they were necessary parties. Watkins Land Co. v. Clements, 98 Tex. 578, 86 S. W. 733, 70 L. R. A. 964, 107 Am. St. Rep. 633; Matagorda Canal Co. v. Markham Irr. Co. (Tex. Civ. App.) 154 S. W. 1176. It would be contrary to the fundamental principles of justice to enjoin the diversion and delivery of the water by the water district to these persons, thereby depriving them of its use, without their joinder in the suit, and being afforded an opportunity to assert and protect their rights. Such procedure would be contrary to the rule quoted, for they are interested in the object of the suit, and such a decree would directly affect their interests. But in this connection it is contended by appellant that they are not necessary parties because the water district is a public municipal corporation, a governmental agency, and as such entitled to sue and be sued with respect to the water which it diverts and distributes, citing in this connection what is known as the conservation amendment to the Constitution (section 59, art. 16) and subdivisions 23 and 122q of article 5107, Vernon's Revised Statutes, 1922 Supp.

In the case of Ward County Water Improvement District No. 2 v. Ward County Irrigation District No. 1 (Tex Civ. App.) 222 S. W. 665, a water improvement and irrigation district incorporated under the law under which Reeves County water improvement district No. 1 is organized brought an action against another such district in effect to adjudicate riparian water rights upon the Pecos river. The conservation amendment and subdivision 23 of article 5107 were relied upon as authorizing the maintenance of the suit. But, upon the principle announced in Mud Creek Irr. Co. v. Vivian, 74 Tex. 174, 11 S. W. 1078, this court held that the action could not be maintained, saying:

"The title to the riparian water rights appurtenant to lands abutting on the Pecos river and situate in appellant's district remained vested in the respective owners of these lands. Their title was not affected by appellant's incorporation. The law under which the appellant was incorporated and under which it operates expressly authorizes it to acquire these water rights but in no wise undertook to confer same. Until it has in some manner connected itself with such riparian rights, it has no right to maintain a suit to enjoin other riparian owners or water users from diverting and using such waters. Such right and user is not an infringement of any right of the plaintiff, but affects only the right of the riparian landowners in its district, and if they do not see fit to complain the plaintiff cannot do so."

A writ of error was...