Reeves v. Pecos Cty. Water Improvement , 29 S.W.2d 405 ( 1930 )

I am unable to agree with the majority members of the court in remanding the case for a new trial, and so will briefly express the grounds of my dissent.

This case on the second appeal is not essentially different from the case on the former appeal. On the former appeal a writ of error was granted. On the hearing the Commission of Appeals, section B, 299 S.W. 224, and on motion for rehearing, 7 S.W.2d 67, held, in effect, that the deeds to the water rights from the original owners of the land contained restrictive clause that such water may not be used on any other land not included in blocks 1, 2, and A; that under the plan the effect of the restriction was to have all the water owned by the district applied to land in the original areas. Under that construction of the deed I am of the opinion that it would be immaterial whether a conveyance of water to lands outside the original area would cause a shortage of water or damage to the owners of lands in the original area or not. It would be immaterial whether there would be a surplus of water above the amount necessary to properly irrigate the lands in blocks 1, 2, and A, if the water could not be conveyed to lands outside said blocks by reason of said restrictions.

The case should be reversed and rendered.