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Show ESTABLISHMENT OF THE RIPARIAN DOCTRINE IN THE WEST 185 In 1956, a suit was brought to determine the relative rights of all diverters of water from the Rio Grande below Falcon Dam, in which an essential issue of law was the extent of the vested riparian right as it relates to the use of water for irrigation.116 As a result of a cross-petition filed by the Texas Attorney General and certain litigant districts late in 1957, the cause of action stated therein was severed from the main suit in order to determine the fundamental riparian irrigation issue.117 Severance was ordered because of the court's finding that claims other than riparian could not be adjudicated in this cause without joining hundreds of additional parties and unwarranted delay. At the trial in the Valmont case, which was held by the district court without a jury, the real issue was whether a grant of land abutting on the Rio Grande, when made by the proper officers of the King of Spain, carried with it the right of irrigation as an appurtenance to the land, or whether it was necessary to get also a grant of water for such purpose. Much expert testimony was presented and arguments heard on both sides of the controversy. In reaching its conclusions the court took notice of the contents of memoranda that were presented on Spanish and Mexican law relating to waters in Spanish America, in several of which the original Spanish materials and corresponding English translations were printed on facing pages. The trial court in the Valmont case was of the opinion that when the Government of Spain made the original grants of land in question, "such grants did not, as an appurtenance thereto, carry with them a right of irrigation upon the lands involved." However, under the doctrine of stare decisis, the trial court was constrained to follow the consistent holdings of the supreme court, on vari- ous grounds, that lands abutting upon a stream such as the Rio Grande do have a riparian right of irrigation. Judgment was rendered accordingly in September 1959, and appeal was taken to the San Antonio Court of Civil Appeals. The San Antonio Court of Civil Appeals held that despite an erroneous dicta in Motl v. Boyd, no Texas court had until now been called upon to decide whether Spanish and Mexican land grants have appurtenant irrigation rights similar to the common law riparian right, and that there was no stare decisis on the subject. The court held that the Spanish and Mexican grants of land adjacent to the Rio Grande did not carry with them an implied grant of riparian waters for irrigation, and reversed the trial court's determination of the conflict.118 The Texas Supreme Court affirmed the decision of the San Antonio Court of Civil Appeals holding that lands riparian to the lower Rio Grande, held under Spanish and Mexican grants, have no appurtenant right to irrigate with river waters.119 116State of Texas v. Hidalgo County W. C. & I. Dist. No. 18, No. B-20576, 93rd Dist. Court, Hidalgo County, Texas. 111State of Texas v. Valmont Plantations, No. B-20791, 93rd Dist. Court, Hidalgo County, Texas. 118State v. Valmont Plantations, 346 S. W. (2d) 853 (Tex. Civ. App. 1961). 119 Valmont Plantations v. State of Texas, 163 Tex. 381, 355 S. W. (2d) 502 (1962). See also Duke v. Reily, 431 S. W. (2d) 769, 771 (Tex. Civ. App. 1968). |