Kountz v. Carpenter , 1918 Tex. App. LEXIS 818 ( 1918 )

We have possibly stated the facts more fully than is necessary to a brief statement of our conclusion as to the law arising therefrom. Appellants and appellee have each filed briefs, and we will confine our opinion to a discussion of the issues therein suggested.

Appellants present one assignment of error, viz.: The court erred in concluding as a matter of law that the water flowing down the Lyles ditch, and used by the defendants for the length of time and under the conditions found by the court, can be prorated by the court between appellee and appellants, and makes the proposition that the facts found indisputably show that appellants were the owners of the water in controversy by limitation and prescription. The counter proposition of appellee is that the mere use of the water of a stream in a particular manner will not ripen into a prescriptive right; that in this particular case, the rights of the riparian owners being equal, each has a right to make all the use of the water he can without infringing on the rights of others; and, therefore, in order to destroy the latter's rights, the use made by the claimant must be such as to deny their existence. We take it that the only question thus presented is, Do the facts found by the court show that appellants have, by limitation of 10 years, acquired title as against appellee to the full one head of water flowing in the Lyles canal? If they do not, appellee would be entitled to have the one head of water prorated, and an equitable distribution made between himself and appellants of the one head of water flowing in the Lyles canal. We do not mean to say that the pleadings or proof justify a holding that appellants would be entitled to a distribution through the Lyles canal. We will not discuss that question, as neither appellants nor appellee, by oral argument or brief, have suggested any method of distribution of the water other than through the Lyles canal. No question is made by appellants or appellee as to the sufficiency of the evidence to sustain every fact found by the court. We have, however, carefully reviewed the evidence in connection with the court's finding, and have reached the conclusion that appellants acquired by limitation the right and title to the full one head of water flowing into their canal. By the sixth and seventh findings of fact the court makes it clear that, during the year 1870, G. B. Lyles was the owner of the entire 160 acres of land now owned by appellants, and that during that year he constructed a dam across Toyah creek where his lands abutted said creek, and by means of said dam and canals diverted a portion of the waters of said creek, the dam so constructed, the point of diversion, and the portion so diverted being the one head of water now in controversy, and conveyed the same to and applied said water to his lands for purposes of irrigation, and that said G. B. Lyles, and his vendees and successors in title, appellants, have by means of said dam and canals continuously since the year 1870, during the crop season of each year, applied said waters to said lands for purposes of irrigation. Practically the same flow of water diverted and used by G. B. Lyles and appellants since 1870 is the same that now flows into and through appellants' dam and canals; the lands are the same now as then; and the only difference we observe is a change in the extent and character of the crops, the crops in the later years being more extensive and requiring more water than formerly. The diversion and use of the water so made, and the character of the means used under the evidence and facts found, to our mind, show an actual and visible appropriation of the full one head of water for purposes of irrigation, and that the diversion and use of the said water was commenced and continued under a claim of right, viz. that the lands irrigated thereby are riparian to the Head spring and stream from which the water is diverted, and that such claim of that particular quantity, one head of water, and its diversion and actual use on the lands to which same was conveyed, was inconsistent with its use on any other land, and was necessarily hostile to the claim of any other person or land. No suit was filed by appellant or his predecessor in title or interest against appellants or their vendees questioning their right to divert or use the one head of water or any part of it during the 48 years such diversion and use have been made of the water by appellants and their predecessors in title. The uses of water for irrigation are so nearly akin to land and the uses of land, and in this sense is land, and the right of its use so runs with the land to which the right becomes appurtenant by its use in connection with the land, that in considering the question of limitation of 10 years we think the statute of limitation of 10 years applied to land would, by analogy, more nearly apply to diversion and use of water for irrigation than would any other rule.

We have concluded that the subsequent use of the water by appellant and his predecessor in title, and the character of the use made, commencing about 14 years later than that of appellants, and such use being subject to the use made by appellants, and only as to the excess and at such times as appellants were not making use of same, did not have the effect to destroy the prescriptive title already acquired or prevent the continued running of the statute. The use made by appellee of the excess of the one nead of water was in no way adverse to that of appellants, but was more in the nature of a permissive use of their dam and canals and the excess of water. We think our conclusions are sustained by the following authorities: Cape v. Thompson, 21 Tex. Civ. App. 681.53 S.W. 368; 2 Farnham, etc., § 499; 2 Kinney on Irrigation, §§ 1040, 1041; Gould on Waters, 334 and 337; note in 93 Am.St.Rep. at page 722.

We need not discuss the question of appellee's right to water in Toyah creek flowing from the Head spring, but confine our opinion to his right to a pro rata division with appellants of the one head of water flowing through appellants' dam and canals.

We think we need not in this case discuss the doctrine of reasonable use of water. In our opinion, the facts do not suggest an application of the doctrine. For reasons stated, the case is reversed and the temporary writ of injunction refused.