Mud Creek Irrigation, Agricultural, & Manufacturing Co. v. Vivian , 74 Tex. 170 ( 1889 )

Gaines, Associate Justice.

The appellant, the plaintiff below, sued as a corporation, created under the general law for the purpose of the construction and maintenance of canals for irrigation. It sought by its suit to enjoin appellees from maintaining a dam on Mud Creek above the point at which the waters of the creek entered its works. A demurrer to the petition was sustained, and there being no offer to amend the suit was dismissed. Broni the judgment this appeal is prosecuted, and it is assigned that the court erred in sustaining the demurrer to the petition.

The petition alleges in substance that the plaintiff company was duly incorporated under the general law for the purpose of constructing and maintaining two irrigation canals on the creek above named at a point designated in the charter, to extend in a general direction down the stream where they were to re-enter the channel. It further alleges that the works were completed and received by the State, and that it had opened a valuable farm with lateral ditches, which was cultivated by the use of water drawn through the canals, and that the defendants had built a dam above their works which held back and diverted the water so that it had ceased to flow down to their canals. It was also alleged that the corporation had been in the uninterrupted use and enjoyment of the water in the stream for the purposes of irrigation for more than ten years before the defendants erected their dam, and by reason thereof the plaintiff claimed the exclusive right to the use of the water by prescription.

No brief has been filed in this court by appellees, and we are therefore left to conjecture upon what precise grounds the petition was held insufficient. But it is to be noted that while it may be suspected that the plaintiff is the owner, oí land abutting upon the stream ánd perhaps crossing it, it is nowhere distinctly alleged that such is the fact, nor is it averred that it has acquired any right in the water by purchase or condemnation from any riparian proprietor.

The action, judging from the averments in the petition, seems to be based in part upon the theory that the charter of the company by designation of the locality of the canal gave it the exclusive right of the water for irrigating purposes in that locality. This we think a mistake. The franchise granted by the charter was the usual powers and privileges conferred upon such corporate bodies as should be organized under the general law of incorporation, together with the right to acquire by gift, purchase, or condemnation such property as was necessary or proper to carry out the objects of its creation. Act of April 23, 1874, sec. 58.

The charter conferred the right to acquire water privileges, but it did not confer the privileges themselves. This principle was announced by this court in the case of Tugwell v. Eagle Pass Ferry Company, Austin Term, 1888. We there held that the ferry company by becoming a corporation under the general law for the purpose of maintaining a ferry over the Rio Grande at Eagle Pass acquired no right to operate such ferry without procuring a ferry license from the Commissioners Court of the county in which the town is situated. The corporation by filing its articles of incorporation in compliance with the law was authorized to establish and maintain a ferry as a corporation at the point designated in its articles, but it did not acquire the ferry privilege itself. So in this case the plaintiff by its incorporation became invested with the power to acquire as a corporation a privilege of using the waters of Mud Creek for the purpose of irrigation, but it did not thereby obtain a right to the use of the waters. That right remained to be acquired, which could have been done by either purchase or condemnation, provided the use was a public one.

It is true that the Act of March Id, 1875, provides that “ any * * * canal company shall have the free use of the waters and streams of the State/'’ but the provisions of that act applied as well to ordinary companies as to corporations. Laws 2d sess. 14th Leg., 77. Besides we are of the opinion that the provision could be held only to apply to streams upon the public lands of the State, since the Legislature had no power to take away or impair the vested rights of riparian owners without providing for the payment of a just compensation. If the defendants or the owners of the land along the stream in controversy had the right to use the water for the purposes of irrigating their lands, that right remained unaffected by the plaintiff’s incorporation or by the legislation of the State passed for the encouragement of irrigation. It seems to be the rule of the common law that a riparian owner has no right to use the water of the stream for irrigating his lands, provided it interferes with the uses of the water by those who own the lands upon the stream below. That this is a proper rule in England and in those States where the rainfall is sufficient for the purposes of agriculture we freely concede, but we are of opinion that in those sections where irrigation is necessary to the successful pursuit of farming it should not apply. What is not a necessary use iu the one case becomes necessary in the other. Evans v. Merriweather, 3 Scam. (Ill.), 496. It was so held in Tolle v. Correth, 31 Texas, 365, and though this decision was criticised in the subsequent case, Fleming v. Davis, 37 Texas, 173, we are of opinion that it recognizes a correct rule of law as applied to the present case.

We think it a matter of common knowledge that there are portions of our State where the business of agriculture can not be successfully prosecuted through successive years except by irrigation, and it is to be inferred from the allegations of the petition that the section where the stream in controversy is situated is of that character. We think, therefore, that the defendants had the right to divert the water which flowed in the stream along or through their lands for the purpose of irrigating them, although the effect of such use was to leave the plaintiff corporation an insufficient supply for the same purpose. Whether they had the right to divert the whole of it and leave an insufficient supply for the ■ordinary use of the lower riparian owners we need not in this case determine.

But the plaintiff also claims that it has acquired by prescription the right to the use of the entire flow of Mud Creek for the purpose of irrigating their farm. There is no question that su'ch a right may be so acquired. If for example the plaintiff had damned the stream and thereby flooded the lands of defendants for ten years a prescriptive right may have been acquired. There would have been a wrong which the defendants could have redressed by suit, and from their delay in suing the presumption of a grant would have arisen. So too it would have been if the defendants had been the lower proprietors, and after a diversion of the water by plaintiff for ten years, coupled with an assertion of the right to divert, if they were now seeking a recovery against it their right of action, if any they ever had, would have been lost. But not so in this ■case. The diversion of the water by plaintiff, it being the lower proprietor, did not interfere with any right of defendants and gave them no cause of action against it. They had no property in the water after it had flowed past their lands, and no interference with it by the plaintiff inflicted any wrong upon them. Being not inimical to their rights it raised no presumption against them. “ The presumption of a grant from long continued enjoyment only arises when the person against whom it is claimed might have prevented or interrupted the exercise of the .subject of the supposed grant.” Angelí on Watercourses, sec. 319c, note 4, citing Chasemore v. Richards, 7 H. L. Cas., 349; Webb v. Bird, 13 C. B., N. S., 843.

The defendants could not have prevented or interrupted the use of the water by plaintiff by any legal proceedings because it in no manner affected their rights.. We conclude that the plaintiff acquired no rights as against these defendants by prescription.

We find no error in the judgment and it is affirmed.

Affirmed.

Delivered May 28, 1889.