McKenzie v. Beason ( 1911 )

SPEER, J.

Mrs. Olive Beason, a feme sole, sought by this suit to restrain E. W. McKenzie and others from diverting the waters of Santa Rosa creek in such manner as to interfere with the irrigation of a tract ■ of land owned by her situated on the irrigation ditch or canal of the Pecos River Irrigation Company, a corporation, which had previously condemned all the waters of said creek in accordance with our statutes, and which use she alleged had continued for 18 years prior to the filing of her petition. The right to such use had been acquired from the irrigation company by purchase. A trial before the court without a jury resulted in a judgment in favor of the defendants, who were upper riparian owners as to those lands found by the court to be riparian to Santa Rosa creek and otherwise in favor of the plaintiff, restraining the defendants from diverting from said creek and canal more water than was reasonably necessary for irrigating the riparian lands. The defendants McKenzie and Cope have appealed.

[1] First, we must dispose of a question which presents itself to us, though no brief is filed for the appellee making such suggestion, and that is that the statement of facts appears to be filed long after the expiration of the time within which the court ordered the same to be filed. From the caption to the transcript it appears that the term of the district court for Reeves county at which this case was tried ended December 18, 1909, the cause was tried on December 18th and a 30-day order within which to file the statement of facts and bills of exception was made, but the statement of facts was not filed until January 28, 1910. No order appears in the record for such delay. The matter is one which we will notice without a suggestion by the appellee. Belt v. Cetti, 53 Tex. Civ. App. 102, 118 S. W. 241, and authorities cited.

[2] We think the exceptions, both general and special, were properly overruled, because, under the facts pleaded, the canal of the Pecos Valley Irrigation Company should be treated to all intents and purposes as the Santa Rosa creek, and appellee’s land, therefore, will be considered as riparian to it.Santa Rosa Irrigation Co. v. Pecos River Irrigation Co., 92 S. W. 1014.

The other questions presented by appellants cannot be considered in the absence of a statement of facts.

The judgment is affirmed.