Borden v. Trespalacios Rice & Irrigation Co.

This case involves a contention between the parties as to the validity of certain condemnation proceedings under which defendant in error claims a right of way for its works over the land of Borden and others, who were plaintiffs in the District Court. The judgments of that court and of the Court of Civil Appeals were in favor of defendant and the cause is before this court on writ of error.

Defendant is a corporation chartered and organized under subdivision 23 of article 642 and article 704, Revised Statutes, and also under an Act of 1895 (Laws 24th Leg., pp. 21-26 and pp. 27-28), the provisions of which now constitute articles 3115-3131, Revised Statutes. The purpose declared in its charter is the construction, maintenance and operation of dams, reservoirs, lakes, wells, canals, flumes, laterals and other necessary appurtenances for the purposes of irrigation and milling, navigation and stockraising in the county of Matagorda.

After its organization it filed, on March 5, 1902, with the county clerk of Matagorda County, in accordance with section 6 of the Act of 1895, its sworn statement showing its intention to appropriate, for irrigation purposes, the unappropriated waters of the ordinary flow or underflow of the Colorado river and of constructing canals, laterals, etc., through which to convey said water for the irrigation of agricultural land situated in said county, and showing, besides the other things required, that it proposed to irrigate approximately 75,000 acres of land. This was accompanied by the map required by the statute showing the route of the canal, from which it appeared that it would pass through or touch numerous different tracts of land.

The lands of plaintiffs lay between the headgate of the canal on the river and its other terminus, and defendant instituted and conducted to a successful termination condemnation proceedings to acquire the right of way over such lands for its canal. No question is made as to the regularity and sufficiency of such proceedings to invest defendant with the right it claims, if there was lawful authority for the condemnation. It is proper to state that the condemnation was sought and allowed only for the purpose of collecting and conveying water for irrigating agricultural lands.

In the trial of this cause in the District Court, it was made to appear that defendant's plant is capable of irrigating 60,000 acres of land in tracts belonging to twenty-six different owners. This land is rich and is capable of being made, by irrigation, to produce in good quantities corn, rice and most garden vegetables. Because of the irregularity and insufficiency of the rainfall, the only crop that has been grown was cotton, and that was never raised to any large extent, the principal industry of the section having been cattle raising. The value of the lands irrigated is very greatly increased thereby.

The attack made upon the condemnation proceedings is based upon the alleged absence of any sufficient authority in the statutes under which they were prosecuted. Prior to the passage of the Act of 1895, articles 642 and 704 of the Revised Statutes were in force. Subdivision 23 of the first named article authorized the formation of corporations for "the construction, maintenance and operation of dams, reservoirs, lakes, wells, canals, flumes, laterals and other necessary appurtenances for the purposes of irrigation, navigation, milling, mining, stockraising and city waterworks. Article 704 provided that: "Every canal corporation for the purpose of irrigation shall, in addition to the powers heretofore conferred, have power;" * * * "4. To furnish water for irrigation at such rates as such organization may, by its by-laws and regulations, prescribe. 6. To enter upon and condemn and appropriate any lands 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."

The Act of 1895 provides in its eleventh section that "corporations may be formed and chartered under the provisions of this act and of the general corporation laws, * * * for the purpose of constructing, maintaining and operating canals, ditches, flumes, feeders, laterals, reservoirs, dams, lakes and wells, and of conducting and transferring water to all persons entitled to the same for irrigation, mining, milling, to cities and towns for waterworks, and for stockraising and for the purpose of building storage reservoirs for the collection and storage of water for the uses before mentioned." Section 12 of that act provides that "All corporations and associations formed for the purpose of irrigation, mining, milling, the construction of waterworks for cities and towns, and stockraising, as provided in this act," shall have right of way over public lands, and that such corporation or association of persons as well as cities and towns may obtain the right of way over private property and water belonging to riparian owners by condemnation as provided in the case of railroads.

1. The first contention of plaintiffs is that the defendant is not invested with the power of eminent domain either by this act or the previously existing law, because it is not the identical corporation to which the power is granted by those laws. The lack of identity is said to consist in the facts, that only canal corporations for the purpose of irrigation alone are the recipients of the power granted by article 704, while defendant is a canal corporation for that and several other purposes; and that only corporations formed for all of the purposes mentioned in the Act of 1895 and for none others are to receive the power granted by that act, while defendant is incorporated for only a part of the purposes so mentioned and for one purpose (navigation) not mentioned. It will be observed that all of the purposes to which defendant undertakes by its charter to apply the water which it is to control are within one or the other of the laws quoted. Those laws are by the provision of the twelfth section of the Act of 1895 connected together and made to constitute the body of the law upon the subject of the utilization of water for the promotion of the several industries of which they treat. Those industries, as specified in article 642 and in the Act of 1895, are the same except that the former includes navigation, which is omitted from the latter. The twelfth section of the latter, however, provides that corporations may be formed under it and the general corporation laws for the purpose of constructing the named works for the specified purposes, and we think there is found in this legislation itself a refutation of this contention.

The first section of the Act of 1895 authorizes the appropriation of water, declared to be public property, "for the uses and purposes hereinafter provided." The second section authorizes the storage and diversion of storm or rain waters for irrigation, mining, milling, waterworks, or stockraising. The latter part of the section connects together conjunctively these various industries to be promoted. The third section, with reference to the waters of streams, authorizes their use for irrigation, mining, milling, waterworks, or stockraising, and forbids the diversion of such water to the prejudice of riparian owners except "after condemnation thereof in the manner as hereinafter provided." The fourth section directly provides that the appropriation of water must be for irrigation, etc., or stockraising.

From these features of the statute, as well as from those pointed out in the opinion of the Court of Civil Appeals, it is evident that the appropriation of water by individuals, associations of persons, or corporations may be for any one of these purposes and need not be for all. This is further borne out by the sixth and eighth sections, which prescribe the statements and declarations which are to be filed by "every person, corporation or association of persons." The only statement to be made relating directly to any business to be affected is with reference to irrigation, and the eighth section expressly authorizes the appropriation of water by such statements for irrigation purposes alone. This being the authority for appropriation of water for the various purposes, singly or together, should the mere fact that section 11, in authorizing the formation of corporations for the collection and furnishing of water, mentions conjunctively the purposes for which it may be furnished, be treated as a requirement that the corporation shall by its charter assume the duty of furnishing for all the businesses? We think not. The provisions recited are sufficient to show the incongruity which such a construction of the eleventh section would introduce between it and the others by requiring the corporation, the instrumentality for the appropriation and use of the water, to assume to take it for all of the named purposes, when it is expressly permitted to take it for only one of them. Natural persons, treated throughout the act in the same way as corporations, are not required, in appropriating water, to use it for all purposes, nor forbidden to engage in any other business, and it seems plain that the Legislature did not intend to require of corporations an undertaking, without regard to the circumstances and situation of the localities in which they were to appropriate and furnish water, to supply it for all of the businesses for which the statute permits it to be appropriated, when in such localities only some of the businesses may be practicable. With regard to the contention that the introduction of "navigation" into defendant's charter as one of the businesses in which water is to be used, there may be a question whether or not section 4 of the Act of 1895 so far modifies article 642 as to forbid such use of water, a decision of which is not necessary. If that use is still authorized, the charter may properly include it. If it is unauthorized, this part of the charter is simply inoperative and does not affect the defendant's other powers. It has not sought to condemn the land in question for any purpose save irrigation, and as its charter is valid and permits it to engage in that business alone, no valid objection arises. When we thus reach the conclusion that defendant is a corporation, formed as provided in the Act of 1895, it follows that the twelfth section thereof grants to it the right of condemnation.

2. The whole of the Act of 1895 is attacked as being in conflict with section 35 of article 3 of the Constitution in that it expresses, both in its title and body, more than one subject. The title is as follows:

"An act to encourage irrigation and to provide for the acquisition of the right to the use of water and for the construction and maintenance of canals, ditches, flumes, dams, reservoirs and wells for irrigation, and for mining, milling, the construction of waterworks for cities and towns and stockraising."

We agree with the Court of Civil Appeals when it says: "The one general subject of legislation indicated by this caption is to provide a method for the acquisition and a means for the conveyance of water for use in the several industries therein named. There is no incongruity in the subjects expressed in the caption or in the body of the act. Neither the caption nor the body of the act deals with the several industries named therein in any respect except as to the method and means of supplying water for their use, which as before stated is the general subject expressed in the caption. State v. Bowers, 14 Ind. 195; Cooley's Const. Lim., 7 ed., 206." We see nothing even questionable in the fact that a statute, providing for the appropriation and use of water declared to be public property, defines the various uses to which it may be devoted. Taken literally, the twelfth section does seem to treat of the organization of corporations and associations for all of the businesses of irrigation, mining, milling, waterworks and stockraising, and not merely those formed for supplying water for carrying on those businesses, but a close examination of the language in connection with all of the other provisions makes it plain that this is due merely to lack of fulness of expression. The corporations and associations spoken of are those formed "as provided in this act," and the only corporations that may be formed as so provided are those authorized in the eleventh section, in connection with the general corporation law, for the purpose of obtaining and conveying water for use in the several businesses named. That is the one purpose pervading the act. The provision in the twelfth section in favor of cities and towns is incidental merely to the use of water for waterworks.

Another position taken is that the provision authorizing the acquisition of the right of way over land is not within the language of the title, but is excluded by that part of it which specifies the acquisition of the right to water. But the title mentions a number of things to be provided for by the bill as incidents of the general purpose, such as canals, ditches, etc., which must occupy land; and hence provision for the acquisition of sites for them follows as a natural if not a necessary incident.

3. It is next urged that the act is void because of the indefiniteness of the designation of the territory in which it is to operate, the supposed designation being of "those portions of the State of Texas in which by reason of the insufficient rainfall or by reason of the irregularity of the rainfall irrigation is beneficial for agricultural purposes." We do not understand that it was the purpose of the Legislature to designate any part of the State as a territory to which the act is to be restricted in its effect. It is to operate throughout the State wherever the conditions prescribed may exist. We do not know that this, of itself, invades any constitutional right of the citizens. The citizen's property can not be taken except for public use nor without compensation. The conditions under which this may be done must exist to justify a taking as for a public use, and, where they do exist, we do not see that the additional requirement that irrigation be beneficial to agriculture because of the insufficient rainfall prejudices the property owner. The extent to which the public may be interested in or benefited by an irrigation project may depend materially upon the very inquiry indicated by this clause of the statute; for the benefit to the public in the use of the water may, in given situations, be so inconsiderable as that the use for which the water and other property is proposed to be taken should not be regarded as a public use. So long as the citizen's property is not taken for uses not public in their nature, we do not see that he has any cause to complain of such a provision as that in question; and whether or not a given taking is for a public use can always be investigated in the courts, whatever may have been the action of the legislative department concerning it.

4. This brings us to the question upon which we have had most doubt and difficulty, that is: Is the purpose for which the law authorizes the taking of private property a public one? It is not contended that the acquisition of the right to the use of water by the public, or a portion thereof, for the purposes indicated in the statutes may not be a public use justifying the employment of the power of eminent domain. That it is, is established by many adjudications. The contention is that the laws in question do not secure any such use to the public, or to any part of it, but that they authorize the creation of purely private corporations and associations of persons for the carrying on of businesses wholly private, and attempt to empower them to take private property for use in such businesses, without being required to assume any duty to, or to respect any right in, the public. If this were true, we should feel constrained to sustain the attack upon those provisions granting the right of condemnation, for we are not inclined to accept that liberal definition of the phrase "public use" adopted by some authorities, which makes it mean no more than the public welfare or good, and under which almost any kind of extensive business which promotes the prosperity and comfort of the country might be aided by the power of eminent domain. With the Court of Civil Appeals and counsel for plaintiffs and those authorities which they follow, we agree that property is taken for public use as intended by the Constitution only when there results to the public some definite right or use in the business or undertaking to which the property is devoted. And we further agree that this public right or use should result from the law itself and not be dependent entirely upon the will of the donee of the power. In re Theresa Drainage District, 90 Wis. 301. Such, at least, we shall assume to be the principle governing this case.

We think it obvious, however, that if it can be gathered from all the provisions of a statute that the recipient of the power is charged with duties to the public, or that a right of use in that for which property is taken is secured to the public, the manner in which, or the form of expression by which, it is done, is immaterial to such an inquiry as this. We think it further true that the courts can not inquire into the wisdom or expediency of the regulations adopted by the Legislature for the protection of the public, further than to see that a public use is secured. The question whether or not a public use springs from a law granting the right of eminent domain to a corporation is largely influenced by the character of the franchise granted to it and the business it is authorized to carry on. At the present day it would hardly be doubted that the mere acceptance of a franchise to build and operate a railway or a telegraph or telephone line, a turnpike or a ferry, coupled with the power of eminent domain, would involve the assumption of duties to the public. An irrigation company is not so plainly of a quasi public character as those instanced, since it may be engaged in a business either wholly private, or of a partly public character; and hence we must look into the law authorizing such an enterprise to see the nature of the rights and powers which are granted, on the one hand, and of the duties exacted, on the other, to determine its character, when, as here, that is not expressly declared by law. We find in the Act of 1895 grants of the right and power to appropriate the public waters of the State and to acquire by condemnation the private property of the citizen in both water and land. These are powers which do not properly belong to those engaged in purely private businesses. We next find that this is done for the purpose of enabling the takers to convey and transfer such water "to all persons entitled to the same" for specified purposes. From this it is evident that the business contemplated is the furnishing of water to others. Who the others "entitled" are and what they are entitled to, are questions not expressly answered by the statute, but, when it is found that the sites and route of the canal and other works are to be evidenced by a public record, the answer to the first question is easily found, and it embraces, in the language of the eleventh section, "all persons who own or hold a possessory right or title to land adjoining or contiguous to any canal," etc. What are the rights of those persons and the corresponding duties of the owner of the plant are very indefinitely defined, and at this point it is argued that the very regulations made confer such rights and powers on the corporation as to exclude the idea of any duty and to make the interest of others wholly dependent on its will. Full power and authority are given to make contracts for the sale of permanent water rights, and to lease, rent or otherwise dispose of the water controlled by such corporation for such time as may be agreed upon. The act next provides that "all persons who own or hold a possessory right or title to land adjoining or contiguous to any canal," etc., "and who shall have secured a right to the use of water shall be entitled to be supplied with water * * * in accordance with the terms of his or their contract," and that "in case of shortage of water from drought, etc., the water shall be divided among all consumers pro rata according to the amount he or they may be entitled." The sale of the permanent water right is made to constitute an easement to the land which is to pass with the title to it, so that the owner of it shall be entitled to water upon the terms provided in his contract, "or, in case no contract is entered into, then at just and reasonable rates." Further provision is made in favor of persons otherwise entitled to water but who have been unable to agree upon a contract for a permanent water right, or for the use of rental of water, securing to them the right to water when the owner of the plant has or controls any not contracted to others.

The power to contract, here given, to the owner of the plant can not, if the business is to be regarded as affected with a public interest, be recognized as absolute and uncontrolled. Common carriers and others engaged in public callings have the power to contract, but it can not be so employed as to absolve them from their duties to the public or to deprive others of their rights. Rights are evidently secured by this statute to those so situated as to be able to avail themselves of the water provided for, and those rights it is the duty of the owners of the contemplated business to respect; and the power to contract, under the well recognized principles applicable to those charged with such duties, must be exercised in subordination to such duties and rights. Reasonable contracts are what this statute means and not contracts employed as evasions of duty.

The provisions of article 704 for the making of regulations fixing rates applies to these corporations, subject to the control of the law, which says that such regulations must be reasonable. It is not entirely clear when all of the provisions of the Act of 1895 are considered whether those who do not make contracts are wholly postponed to those who do or not. If they are, with the qualification that the contracts must be made in good faith and be reasonable, we can not see in this anything to raise a constitutional question. The question as to the expediency of the regulations was for the Legislature. Furthermore, when the conclusion is reached that this is a business in which the use of the water is secured to the public in consideration of the franchises and priveleges granted, there results a power in the Legislature to further regulate it in a reasonable way.

Other indications that the business authorized is a quasi public one are found in the statute. The provisions requiring a record of the plan and map of the canals, etc., prescribing the time within which the work must be commenced and completed, giving the right of way over public lands, roads, and highways, requiring the removal, in certain instances, of public highways and bridges to give place for some of the works, the employment, in condemnation, of the same rules that apply in cases of railroads, all these tend to the same conclusion.

The fact that the same owner is allowed to furnish the water for so many different purposes may complicate the business in some instances, but this does not detract from its character as impressed with a public use. All such considerations were for the Legislature.

It is argued, in effect, that the broad terms of the statute would allow the condemnation of private property to be used in the businesses specified when they are conducted wholly for the benefit of those prosecuting them. The right to condemn private property is only given to corporations or associations formed to carry on the business contemplated by the statute, which we have seen is to be conducted for public benefit. The Constitution itself protects private property from any taking except for the public use, and the statute must be viewed as having been adopted in subordination to that provision and not in violation of it, unless the latter construction is required by the provisions of the act. The act itself manifests the purpose which we have shown, and the power it gives can not be employed to take private property for any purpose except the public one intended. Any citizen whose property is sought to be taken in aid of a given enterprise is to have a hearing, in which the question whether or not the use to which the property is to be devoted is a public one may be fully considered, and, if it be found that such is not the character of the use, the statute does not authorize and the Constitution forbids the taking.

Plaintiffs' presentation of this case does not embrace any claim that there is anything in the enterprise undertaken by defendant which makes it private or divests it of a public character, if the law under which it proceeded is sufficient to impress such a character upon the corporations authorized by it. We may say, however, that the facts of the case sufficiently show the existence of the conditions prescribed by the statute and a sufficiently extensive public use to sustain the proceedings under which defendant claims, or at least to make the question one of fact upon which this court can not review the decisions of other tribunals.

The judgments below will therefore be affirmed.

Affirmed.