Lewis v. San Antonio River Authority , 1960 Tex. App. LEXIS 1914 ( 1960 )

BARROW, Justice.

Appellee, San Antonio River Authority, a governmental agency and body politic, brought this suit against appellants, G. Garrett Lewis and numerous others, as owners of land and certain property rights held by them in connection with the San Juan Dam, head gate, ditch and water rights upon and along the San Antonio River. Appellants were sued both individually, as owners of tracts of land, and as a class. By this suit appellee seeks a declaratory judgment holding that it is not liable in damages for the taking, damaging or destruction of appellants’ property in connection with changing, straightening, widening and deepening of the bed of the San Antonio River, a project in which ap-pellee is engaged as a flood control measure. The project does not involve navigation or an aid to navigation, nor is any right of appellee to act in aid of navigation involved. Appellants filed an answer and cross-action, joining the City of San Antonio as a cross-defendant. The City answered by general denial. The answer of appellants opposed a declaratory judgment and sought a judgment on their cross-action for their individual damages for the taking, damaging and destruction of their respective properties.

Appellee presented a motion for summary judgment supported by detailed maps, plans and charts prepared by its engineers, together with affidavits of expert witnesses, also with request that the court take judicial notice of historical facts, court decisions, and other facts which are matters of common knowledge. Appellants answered the motion and supported their answer by affidavits and attached copies of the original grants of their respective predecessors in title. The court granted the summary judgment.

The appellee was created by act of the Legislature as a Conservation and Reclamation District under authority of Article 16, Section 59, of the Constitution of the State of Texas, Vernon’s Ann.St., and under the provisions of Article 8280-119, Vernon’s Ann.Civ.Stats., with the powers, rights, privileges and functions prescribed therein. The Act specifically vests the District, for the purposes of the Act, with such title and right of control as the State has, or may have, in, to and concerning the natural bed and banks of the San Antonio River, and such tributaries thereof as may be affected by the prosecution of the functions of the District. The appellants are individual owners of separate tracts of land in the vicinity of Old Mission San Juan in Bexar County, together with certain water rights or titles. Such water being supplied by a dam on the San Antonio River with a head gate located near old Mission San Jose. Said dam and head gate, at all times pertinent, until the matters involved herein, had been turning a part of the natural flow of the river into a ditch known as San Juan Ditch, wherein it proceeded down to the irrigated farms of each of appellants.

Appellee is and has been for some two years prior to the filing of this suit, engaged in a project, as a flood control measure, of straightening, widening, deepening and improving the San Antonio River, as well as San Pedro, Alazan and Martinez Creeks, each of which are natural flood drainage for the City of San Antonio.

The problems involved which are presented by appropriate points and counterpoints in this appeal are quite numerous and intricate. We shall not consider those points separately, but consider the respective contentions and positions of the parties, without regard to the order of the points or counter-points. In connection with the work of improving the San Antonio River, appellee has destroyed the San Juan Dam across the river bed and opened a new channel some two hundred feet west of the old river bed at the point where the dam was and where the head gate and the end of San Juan Dam are situated. The new channel is several feet deeper than the old river bed. Thus leaving the old river bed dry except perhaps at flood stage, when high water might flow through.

We shall first consider appellee’s counterpoints by which it seeks to uphold the judgment of the trial court. (1) That flood control is a vital need for the City of San Antonio. (2) That its project in an effort to effect such flood control is a proper exercise of the police power. (3) That the loss of appellants’ water rights as a consequence thereof was damnum absque injuria as a damaging of property under a reasonable exercise of the police power.

From the record before us as well as from matters of common knowledge and from historical facts of which we may take judicial knowledge, we know that San Antonio is a large and rapidly growing city, of some six hundred thousand population at the present time. It covers an area of several hundred square miles, the major portion of which is covered with buildings, pavement and other improvements, leaving only a small portion of the earth exposed to absorb moisture, so that most of the rainfall must drain into the San Antonio River, or its tributaries and thence into the river. The river and these tributaries which meander through the City are extremely winding. At the time appellants acquired grants from the Mexican Government the City of San Antonio was a small village located several miles above the San Juan Dam. It is a well known fact that the San Antonio river bed is and always has been comparatively narrow and shallow, so that in recent years it and its tributaries have been too narrow and shallow to carry off the water on occasions of unusually heavy rains, resulting in several major floods, causing loss of lives and much property damage, the first of which occurred in the year 1921. It is apparent that the real cause of the difficulty is that the City has outgrown the river. This fact required the use of some measures to alleviate the conditions, and they brought about the creation of appellee and the prosecution of its project. We think it is obvious that under existing conditions the river became inimical to the health, safety and welfare of said City and its inhabitants, and ap-pellee was authorized to exercise the powers and authority vested in it by the Act creating it and by the laws of this State governing such corporations.

We come now to the rights of appellants. The San Juan Dam was originally constructed in the year 1731, when the territory comprising the State of Texas was a province of the kingdom of Spain, for the purpose of irrigating arid land in the area of Mission San Juan. The water was lifted by the dam to a height which caused a portion of the water to flow through the head gate into the San Juan Acequia (ditch) which ran on the contour of the land to and through the land irrigated and thence back into the river at a point some distance below the dam. In 1824, after Mexico had gained its independence from Spain, and this territory was a province of that Nation, and at a time when the San Juan Dam, head gate and ditch were still in continuous use, the Mexican Government made numerous small grants of land, together with rights in .the irrigation system, to numerous grantees who are appellants’ predecessors in title. It is not disputed that appellants’ titles are deraigned from those original grantees. Portions of one of said grants are copied in footnote.¹

It is well settled that the rights of appellants in and to the water rights must be governed by the Mexican (Spanish) law in effect on the effective date of the grants. Whatever rights were granted to them at that time, they now have. Luttes v. State, Tex., 324 S.W.2d 167; Rudder v. Ponder, 156 Tex. 185, 293 S.W.2d 736; Giles v. Basore, 154 Tex. 366, 278 S.W.2d 830; State v. Balli, 144 Tex. 195, 190 S.W.2d 71; Humble Oil & Refining Co. v. Sun Oil Co., 5 Cir., 190 F.2d 191; 191 F.2d 705, certiorari denied 342 U.S. 920, 72 S.Ct. 367, 96 L.Ed. 687. We note from the express language of the grant appearing in the footnote, that Francisco Maynes is granted two dulas of water “to he taken from the irrigation conduit of the Mission of San Juan Capistrano,” along with the land described in the grant. We think it is clear that the dam, head gate and ditch were then and remained a part and parcel of “the irrigation conduit of the Mission of San Juan Capistrano.” The grant was not merely two dulas of water in the ditch, but included the right to the dam and head gate as well as the irrigation ditch.

We have examined the Spanish laws cited and quoted by appellee and find nothing which would authorize the destruction of the San Juan Dam. The San Antonio River not being navigable in fact, we are of the opinion that even in the absence of an express grant any citizen might open an acequia or channel into the river and extract irrigation water, provided it did not interfere with navigation and did not restrain the common use of “all men generally.” Law 8, Title 28, and Law 18, Title-28, Partidas 3 (Scott translation thereof). That being substantially the same as our law of riparian rights. We are also of the-opinion that the Mexican grants expressly granted water in the ditch and not a mere-right to take water from the river. We are also of the opinion that the grants, when construed in the light of facts existing at that time and long prior thereto, the dam and head gate being integral parts of the irrigation system, together with the ditch, recognized the legal existence of the-dam and head gate and their continued existence and use by the owners of the land as-appurtenant to the grants. Moreover, undoubtedly these water rights are heredita-ments which pass with the title to the land. Motl v. Boyd, 116 Tex. 82, 286 S.W. 458. It is well settled that appellee has both the power of eminent domain, and in a proper-case the right to exercise the police power of the State. Missouri, K. & T. R. Co. of Texas v. Rockwall County Levee Imp. Dist. No. 3, 117 Tex. 34, 297 S.W. 206, 210.

This brings us to the controlling ■question in the case. Appellants contend that by the destruction of the San Juan Dam and the removal of the channel of the San Antonio River to the new location, their property was and is being taken without due process of law, within the meaning ■of the Constitution (Amendment Fourteen) ■of the United States, and without compensation, contrary to Article 1, § 17, of the Constitution of the State of Texas. On the other hand, appellee contends that none of appellants’ property (meaning the San Juan Ditch and head gate) has been taken, damaged or even touched; that appellants have no property right in the San Juan Dam or gravity flow of the river; and that any damages suffered by appellants are what is known as consequential damages, and are not recoverable when incurred in the reasonable exercise of the police power ■of the State. We agree with appellants.

As stated above, we think appellants have a property right in the dam which raises the water to the level of the head gate, whence it flows by gravity into and through the ditch. This was granted to them by the sovereign power at that time and must be governed by the laws of the Sovereign that this facility for irrigation was a part of the land at that time. Motl v. Boyd, supra. There can be no doubt that appellee has the authority, through the exercise of the power of eminent domain to take the property, but we cannot agree that it may take such property without compensation, through the ■exercise of the police power of the State.

The well settled law governing the situation here presented is stated in Missouri, K. & T. R. Co. of Texas v. Rockwall County Levee Imp. Dist. No. 3, supra, as follows :

“ ‘There is no controversy but that the district is liable for compensation for the property actually taken by condemnation, but the difficulty arises at the point of holding it liable for damages to, or destruction of, property not actually taken. This damage is frequently referred to as “consequential” damages, but that term has been used so indiscriminately and in such contradictory senses as to become meaningless. It is sometimes used to denote damages recoverable by law, to distinguish them from the compensation allowed for property actually taken and arising from injury to other property not actually taken. In this sense such damages under our Constitution and statutes are recoverable. Again, however, the term is used to designate those injuries which the law will not redress in any event. By whatever term they may be designated, we hold that under our Constitution “no person’s property shall be taken, damaged or destroyed for or applied to public use without adequate compensation being made” * * * (article 1, § 17), and under the statutes under consideration, the defendant in error is liable and must pay compensation for all property of another taken, damaged, or destroyed by it in the exercise of its functions as a district under the statutes. Fort Worth, etc., District v. Fort Worth, 106 Tex. 148, 1S8 S.W. 164, 48 L.R.A.(N.S.) 994; Dallas County, etc., District v. Ayers (Tex.Civ.App.) 246 S.W. 1112; Fort Worth, etc., District v. Weatherred (Tex.Civ.App.) 149 S.W. 550; Hopkins County, etc., District v. Hooten (Tex.Civ.App.) 252 S.W. 325; Hopkins County, etc., District v. Smith (Tex.Civ.App.) 243 S.W. 793; Matagorda, etc., District v. Bordon [Borden] (Tex.Civ.App.) 195 S.W. 308.”

In that case the Court held that the district was liable to the Railroad Company for the taking, damaging or destruction of its property, but not for the cost and expense of raising its track to conform to the “lay of the land”. This it was required to do at its own expense under Art. 6485, Vernon’s Sayles’ Ann.Civ.St.1914.

In that connection the Court said:

“Damage as such, within the contemplation of the principle under consideration, necessarily means compensation to the owner for an injury to his property, and this postulates that the owner has such a fixed right in the property as to insist upon its maintenance in its then condition. One cannot be damaged in a legal sense through the destruction of property which he has no legal right to own, keep, or maintain. In such case no legal right is invaded, and this is the very essence of damage.”

Appellee also cites Houston & T. C. Ry. Co. v. City of Dallas, 98 Tex. 396, 84 S.W. 648, 70 L.R.A. 850, and Chicago, R. I. & G. Ry. Co. v. Tarrant County Water Control & Imp. Dist. No. 1, 123 Tex. 432, 73 S.W.2d 55. These cases are not in point. They were cases in which the railroad company was required by law to conform to the lay of the land, and in the exercise of police power the railroad can be required to change the level of the track without compensation. In other words it has no vested right, but has a continuing duty as circumstances change.

The consolidated case of State v. City of Austin (State v. City of Dallas), Tex., 331 S.W.2d 737, is not in point. The case involved the validity of a Legislative Act which authorized the State to pay a part of the expense of relocating utility lines made necessary by improvement of highways. As incidental to the decision, the Court said that ordinarily, in the absence of assumption by the State of part of the expense, it is the duty of such utility corporations to make the necessary relocations at their own expense. The Court pointed out that the main purpose of roads and streets is for travel and transportation, and that the use thereof by utility companies for laying their lines is subject to police power which may be exercised by the State, County or City. Again, no vested property right is involved.

Appellee cites City of San Antonio v. Pigeonhole Parking of Texas, Inc., 158 Tex. 318, 311 S.W.2d 218, 73 A.L.R.2d 640; Ellis v. City of West University Place, 141 Tex. 608, 175 S.W.2d 396; Lombardo v. City of Dallas, 124 Tex. 1, 73 S.W.2d 475; and Nichols v. Park, Tex.Civ.App., 119 S.W.2d 1066. We do not regard these authorities as in point. The holding in each case is based on the idea that the property itself or its actual or intended use does or would constitute a nuisance. In such a case the property or its use must be a nuisance in fact, and the owner is entitled to a hearing on the facts by judicial review. City of San Antonio v. Pigeonhole Parking of Texas, Inc., supra; Stockwell v. State, 110 Tex. 550, 221 S.W. 932, 12 A.L.R. 1116. In the instant case, appellee is engaged in a public improvement and consequently is authorized to appropriate appellants’ property, but is not authorized to take it without compensation. Appellants own the property taken, damaged and destroyed, their damage is not merely consequential, such as the cost of railroad tracks when required by changed circumstances. We think it is significant that even in the railroad cases the appropriator was required to compensate for the taking, damaging and destruction of the property of the railroad company actually taken, or its use destroyed, as distinguished from the cost of raising its tracks to conform to the lay of the land under its statutory duty.

We conclude that appellants have vested property rights in the San Juan Dam, head gate and ditch, of which they cannot be deprived without adequate compensation, and that the trial court erred in holding that appellants’ damages are damnum absque in-juria.

The judgment is reversed and the cause remanded.

1 . “In the City of San Fernando de Bexar, February 5, 1824.

“I, Jose Antonio Saucedo, first in authority in the Very Excellent Provincial Deputation of this Province, vested with the authority of Gefe Politico of the said Province, by virtue of the command of Their Exalted Highnesses, the Supreme Executive Power, to the effect that the Missions of this Province be delivered to the Bishop and their lands be distributed among residents in need of them, in view of the return submitted by the Illustrious Ayuntamiento in its preceding report; knowing of the merits of the petitioner, Bachelor Francisco Maynes, his good behavior and his devotion to agricultural toil, I have decided to grant him and I do hereby grant him in the name of the Mexican Nation, two dulas of irrigation water with the accompanying land for cultivation; the water to be taken from the irrigation conduit of the Mission of San Juan Capistrano, so that as his own property he may cultivate and enjoy the land within the term prescribed by law; he may possess it for his own use or the use of his successors at the rental of 10 pesos annually which he must pay for the said dulas granted him for the period of four years, in accordance with the provisions of the Very Excellent Provincial Deputation. After the four years have elapsed he may enjoy the two dulas of irrigation water, clear of all encumbrance and as such he may sell or mortgage them at his pleasure.

“To this end Francisco Maynes will be placed in formal possession of the two dulas of water, and will be provided with any certified copy or copies he may request in protection of his title.

“Thus by this decree I commanded and signed my decree before witnesses to my proceedings for lack of any notary within the meaning of the law; to which I bear witness. * * *

“I, Jose Antonio Saucedo, * * * went to the land which by the preceding decree I had granted to the petitioner, Bachelor Francisco Maynes, and there I measured two suertes of land with 200 varas on each frontage. The land is bounded on the East by the Acequia Madre; on the North by lands granted' to Jose Ygnacio de Leon; on the West by the San Antonio River and on the-South by lands to be granted.

“I placed the petitioner, Bachelor Francisco Maynes, in real and corporal possession of the land with its accompanying irrigation water, and shouted in loud and intelligible tones, ‘In the name-of the Mexican Nation and by virtue of the authority vested in me by Their Exalted Highnesses, the Supreme Executive Power, for distribution of the lands-of these Missions, I place you in possession of this labor for you, your successors and heirs.’ ”