Washington County v. Pendleton , 1915 Tex. App. LEXIS 882 ( 1915 )

While, in the well-prepared and satisfactory briefs filed in this court by counsel for the respective parties, other interesting questions are ably presented and discussed, our decision in appellees' favor upon the question of law hereinafter considered renders unnecessary a ruling upon the other questions.

The act concerning private corporations approved April 23, 1874 (Acts 14th Leg. c. 97), granted the right to irrigation companies to construct canals across, along, and upon any stream of water, and, as the Concho river was a navigable stream, this act conferred authority to construct the dam across that stream. That act did not, in terms, grant a right of way over the public lands, but the act approved March 10, 1875 (Acts 2d Sess. 14th Leg. c. 63), did grant such right in the following language:

"That all corporations for irrigation or navigation are hereby granted the right of way, not to exceed 150 feet in width, over all public, university, school, and asylum lands, with use of necessary rock, gravel and timber for construction purposes, and may obtain the right of way over private lands by contract or under general laws of the state."

And to encourage the construction of such internal improvements that act granted to companies complying with its terms from 6 to 16 sections of land per mile according to the class of the ditch. The undisputed proof shows that the ditch in question was constructed prior to the time our present Constitution went into effect and while the Constitution of 1869 was in force; that upon reports made by Henry C. King, official inspector, showing substantial compliance with the act of March 10, 1875, the state issued to the Benficklin Irrigating Manufacturing Company, under said act of March 10, 1875, 31 certificates, each for 640 acres of land, which certificates were afterwards located upon the public domain of Texas and patents issued therefor. Under these facts, and by force of the statutes referred to, we hold that appellees acquired the right to construct and maintain the dam and ditch in question.

Counsel for appellant contend that, while the act of March 10, 1875, grants a right of way over "all public, university, school, and asylum lands," it was not intended thereby to grant such right of way over school lands belonging to the several counties of the state. We are unable to yield assent to that construction of the statute. It must be borne in mind that at that time the Constitution of the state read:

"The public lands heretofore given to counties shall be under the control of the Legislature, and may be sold under such regulations as the Legislature may prescribe; and in such case the proceeds of the same shall be added to the public school fund." Section 8, art. 9, Const. 1869.

In view of this constitutional provision, it is reasonable to suppose that the Legislature understood that the Constitution had vested in that body the power of control over county school lands, as well as state or other school lands; and therefore, when it used the language "all school lands," we hold that it was the legislative purpose to include county as well as state school lands.

But, if this construction be adopted, then counsel for appellant earnestly urge that the statute is unconstitutional, the contention being that, as the land here involved had been granted and patented to Washington county in 1852, it was not in the power of the Legislature or of the people, in adopting the subsequent Constitution, to destroy or impair the title so vested in Washington county. Upon this branch of the case we adopt the following excerpt from appellees' brief:

"Appellant contends that, as said land was patented to it in 1852, the Legislature had no power to grant a right of way over it to irrigation companies, and that such right can be acquired only through an express grant from appellant's commissioners' court. In support of its contention, appellant cites the cases of Galveston County v. Tankersley, 39 Tex. 651; Worley v. State, 48 Tex. 1; Milam County v. Bateman, 54 Tex. 153; and Kuechler v. Wright, 40 Tex. 600.

"An examination of the cases cited shows that they are not authority for the propositions asserted. If the grant of the easement made by the acts of 1874 and 1875 had the effect to divest the county of its title in fee to the land, and to divert them to an entirely different purpose, the rule announced in those cases would be applicable. However, here, the acts mentioned grant only an easement without in any manner interfering with the fee in the land, or appropriating the lands to any other or different purpose than that for which they were originally granted.

"In Galveston County v. Tankersley and Worley v. State, it was claimed that the effect of section 8, art. 9, of the Constitution of 1869, was to divest the counties of all title in the lands theretofore granted them, and to reinvest the state with the title in fee thereto. In other words, that by force of the Constitution of 1869 all such lands became a part of the public domain. The court held that the Constitution was not subject to that construction.

"In Milam County v. Bateman, the court held that the Legislature was without power to arbitrarily take from the county its school lands theretofore granted and give them to ``private parties and for private purposes,' as was attempted by the act of July 21, 1870 (Acts Called Sess. 12th Leg. c. 21).

"The correctness of these decisions upon facts in each case may be admitted, but does it follow that, because the Legislature did not have the power to grant these lands to ``private parties and for private purposes,' it therefore did not have the power, under its constitutional control over the lands, to grant an easement thereon for a public use? That it had such power, we think, is too clear for argument.

"It is true in Galveston County v. Tankersley, the court in an obiter dicta expression denies the power of the people through their Constitution to recall its grants of public lands to its counties upon the ground that such grants are protected by the Constitution of the United States, but in Worley v. State, the Supreme Court, speaking through Judge Gould, takes occasion to dissent from that doctrine, saying: ``It is proper to remark that whilst we recognize the authority of the case of Galveston County v. Tankersley, on the question actually decided, to wit, the construction of the Constitution, we are by no means prepared to assent to what is said in the opinion, in that case, denying the power of the state over lands granted by her to her own political subdivisions for public purposes.'

"And in Baker v. Dunning, 77 Tex. 28 [13 S.W. 617], the court held that the provision in section 6, art. 7, Constitution of 1876, granting the prior right to actual settlers residing on county school lands to purchase the same to the extent of their settlements, was not repugnant to the Constitution of the United States, and take occasion, speaking through Judge Gaines, to question the correctness of the decision in Milam County v. Bateman, 54 Tex. 153, on that point, saying: ``In Milam County v. Bateman, 54 Tex. 153, it was held that the state could not take from the counties the lands which had been donated to them for educational purposes. We are of opinion that that decision should be adhered to. If it were an open question, we might have difficulty in coming to that conclusion. The counties being but political subdivisions of the state and quasi corporations created by the state for the more convenient administration of its laws, we incline to the opinion that they hold their property as they hold their existence — at the will of the state; or that at least what has been given to them by the state for the purposes of government they hold in trust, and that it is subject to be resumed by the state at its pleasure.'

"In Kuechler v. Wright, 40 Tex. 600, the court held that the alternate or even sections of land surveyed by railway companies for the use of the state were ``dedicated to school purposes and placed beyond the power of the Legislature to divert them for any other purpose,' and that the act of August 12, 1870, in so far as it attempted to authorize the homestead settlement or certificate location thereon, was void. In other words, that the title in fee to such lands, having been by law and the Constitutions set aside for such purposes, it was not in the power of the Legislature to divert that land to an entirely different purpose. But notwithstanding the principle of law announced in this case, the Supreme Court, in T. C. Ry. Co. v. Bowman, 97 Tex. 421 [79 S.W. 295], held that the statute of 1879, now article 6482, R.S. 1911, granting to railroad companies an easement of a right of way over such lands, was constitutional and valid; and again in Imperial Irrigation Co. v. Jayne,104 Tex. 395 [138 S.W. 575, Ann.Cas. 1914B. 322], the court held that the setting aside of such alternate sections of land to the school fund, and providing that they should be sold for that purpose, did not deprive the Legislature of the right to grant easements over the same for the promotion of public enterprises which would enhance the value of that fund, and in that case upheld the validity of the irrigation statutes of 1895 granting to such public enterprises the easement on such lands for the construction of reservoirs, etc.

"From these authorities we deduct the rule that whilst the Legislature was without power to divest the counties of the title in fee to the lands granted for school purposes, and to appropriate them to other and entirely different uses, it did have the power to grant easements thereon for public enterprises.

"But there is another view of this question. The Constitution of 1869 vested the control of these lands in the Legislature to be sold under such regulations as it should prescribe. Other than the act in question, the Legislature had never prescribed any method of acquiring easements over such lands for public purposes. No condemnation proceedings can be had against the state to acquire an easement over these lands for a public purpose without the consent of the state. In lieu of authority for such proceedings, the Legislature grants the easement, and this act was authority to acquire the right thereon in the manner prescribed by the Legislature. In other words, the Legislature, having the power to authorize such companies to acquire by condemnation a right of way for a public purpose, necessarily had the power to grant such easements over the lands under its control.

"The easement for said dam and ditch, being complete at the date of the adoption of the Constitution of 1876, which placed said lands under the control of the commissioners' court, was not affected thereby, nor was it necessary for the owners thereafter to secure any confirmation of the right from appellant, and, the evidence showing that there had never been any abandonment of the easement since its acquisition in 1874 or 1875, appellant was not entitled to an injunction restraining appellees from maintaining the same on said land."

Our present Constitution is much more restrictive than the Constitution of 1869 as to the power of the Legislature to deal with public lands, and yet in construing such restrictions in Imperial Irrigation Co. v. Jayne,104 Tex. 395, 138 S.W. 575, Ann.Cas. 1914B, 322, our Supreme Court held that the Legislature had the power, which it exercised in passing the irrigation law of March 9, 1895 (Acts 24th Leg. c. 21), to confer easements upon state school lands for the purpose of establishing reservoirs for the conservation of surface waters, and in the course of the opinion prepared by Mr. Justice Dibrell it is said:

"From the view we take of the law it seems to us to be settled by the decisions of this state that the Legislature has power to deal with the public school lands in any manner not inconsistent with the express denial of the Constitution. As stated by Judge Stayton in Smisson v. State, 71 Tex. 233 [9 S.W. 116], in discussing that section of the Constitution, section 4, article 7, invoked in this case in denial of the legislative authority to grant an easement on any portion of the public school lands of the state for dam and reservoir sites: ``A power clearly legislative in its character, not expressly denied to the Legislature, ought not to be held denied by implication, unless its exercise would interfere with, frustrate, or to some extent defeat the exercise of a power expressly granted.'

"It has been held, and it seems with great force of reason, that the purpose of the Constitution was not to restrict the Legislature in dealing with the public school lands further than to say they shall be sold, and that the purpose of the constitutional provision was not to fetter the Legislature with restrictions so narrow as to deprive it of the exercise of that generous and wise policy in dealing with the public domain in order to foster public enterprises and thereby promote the general welfare of the whole people. Such a construction of the Constitution would deny the Legislature the power to authorize the opening of public roads over the public school lands, or the granting of rights of way to railroad companies, or sites for public schoolhouses, or sites for dams or reservoirs to furnish water to the people of our cities located in the arid and semi-arid sections of the state. It would also stop the building of telegraph and telephone lines and cripple the entire commerce of the country."

The language just quoted has equal application to the case at bar, and supports our conclusion that the act of March 10, 1875, conferring a right of way for irrigation ditches across county school lands, was constitutional and valid.

Our ruling as to the validity and construction of the statute referred to renders it unnecessary and therefore we forego any decision upon the other questions in the case.

For the reasons given, we hold that the case was properly disposed of, and therefore the judgment is affirmed.

Affirmed.