McGhee Irrigation Ditch Co. v. Hudson , 85 Tex. 587 ( 1893 )

We see no reason to doubt the correctness of the views expressed by the Court of Civil Appeals in reference to the validity of the statute, in so far as considered by that court; nor do we think that the act is a special or local law within the meaning of that part of the Constitution regulating the passage of such laws.

Section 2 of the act can not operate, and probably was not intended to operate, on the rights of riparian owners existing when the law was passed, but was intended to operate only on such interests as were in the State by reason of its ownership of lands bordering on rivers or natural streams; and it may be that there are some other parts of the act that would have to be so limited.

It is urged, that the act only provides for condemnation of right of way, or ground on which the ditch is to be constructed, and does not provide for a compensation for injury resulting from a taking of water from the stream which flows through plaintiffs' land. The act provides, that "any such corporation may also obtain the right of way over private lands by condemnation, by causing the damages for any private property appropriated by such corporations or associations to be assessed and paid for, as provided in cases of railroads." Gen. Laws 1889, p. 102.

The general law providing for the incorporation of canal companies contains the following, among the powers conferred on such corporations: "To enter upon and condemn and appropriate any land of any person or corporation that may be necessary for the uses and purposes of said company; the damages for any property thus appropriated to be assessed and paid for in the same manner as is provided by law in the case of railroads." Rev. Stats., art. 628, sec. 6.

The law first quoted evidently only provides for condemnation of ground over which an irrigation ditch might run, and in the absence of a law providing for the condemnation of every property necessarily taken in such an enterprise, no right to condemn would exist.

The Act of March 19, 1889, in so far as it provides for condemnation, however, is not in conflict with article 228, Revised Statutes.

The provisions of the latter are broader than the former, and under the former the power therein given to enter upon, condemn, and appropriate lands, we are of opinion that any property belonging to plaintiffs and necessary for the uses and purposes of defendant, in the business for which it was created, may be condemned, if it will pass or may be included under the term "lands."

"The word land includes not only the soil, but everything attached to it, whether attached by the course of nature, as trees, herbage, and water, or by the hand of man, as buildings and fences." 1 Wash. 4; 2 Wash. 367; 2 Black., 18; Carey v. Daniels, 8 Metc., 480; Lux v. Haggin, 69 Cal. 255; Scriven v. Smith, 100 N.Y. 480.

In disposing of this case, under the pleadings, we must assume that the steps taken were proper steps to condemn, and that plaintiffs' rights were, such as could not be taken without condemnation and compensation.

So looking at the case, it is very clear that it was their right to have the water flow through their land in its accustomed channel, and to use it for all purposes for which a riparian proprietor may use water so flowing.

If defendants divert the water, in so far as they do so they, in effect, take land, and must make compensation to plaintiffs for such deprivation of right, as well as for the land on which their dam and ditch were constructed or to be constructed.

It appears that the dam as well as the ditch was on plaintiffs' land, and that a taking of the soil as well as water was necessary for defendant's purposes; and this makes a case in which plaintiffs are entitled to compensation for any property right of which they are to be divested.

If, however, the water was taken out of the stream above plaintiffs' land, to be used for a public purpose, this would not affect their right to compensation, measured by the value of the right divested; for their right to use the water for proper purposes can not be taken away without compensation.

Article 628, Revised Statutes, only provides, that the procedure shall be the same as railway companies are required to pursue in condemning property for their necessary use, and does not undertake to fix the measure of damages in cases to which it applies.

That must be determined by the general rules of law applicable to the case, and whether the taking is necessary and for a public use must be determined before the property can be taken.

If plaintiffs desired a perpetual injunction, it is clear that it was incumbent on them to allege and prove the facts necessary to entitle them to such relief.

We can now only act on the case made, but have deemed it proper to express the views herein given for the guidance of the parties and the court in further proceedings to be had in the case as it now appears.

The motion for rehearing will be overruled.

Motion refused.

Delivered June 22, 1893.