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Show ESTABLISHMENT OF THE RIPARIAN DOCTRINE IN THE WEST 189 land without diminution or alteration," which guided the courts of Eastern States and England. This was done by (1) acknowledging their applicability in regions in which the flow serves mechanical or manufacturing purposes, and (2) denying it where water is useful for agriculture and where the sovereign power grants, for a nominal consideration, water for irrigation purposes. Where the latter conditions obtain, in place of these inapplicable maxims "we must substitute, 'water irrigates, and let it irrigate.'" The court specifically disclaimed any intent to decide to what extent a stream could be used for irrigation, inasmuch as the relative rights or exclusive rights of proprietors were not in issue. The holding was that the upper riparian proprietor could divert and use water for irrigation of his land, even though the streamfiow was thereby lessened before reaching the lower riparian land. Although the decision in Tolle v. Correth was severely criticized 4 years later by the "semicolon court"131 as setting forth an impossible physical situation and as furnishing no rule of decision,132 a later postreconstruction court indicated its belief that the departure in Tolle v. Correth from the strict common law maxims in favor of irrigation was correct as applied to the instant case.133 Texas case law contains a number of decisions in which the right of riparian owners to irrigate their riparian land has been recognized. Some of them are dicta, such as the famous pronouncement of Chief Justice Cureton in Moil v. Boyd to the effect that lands granted from the time of the Mexican decree of 1823 down to the passage of the appropriation act in 1889 carried with them the right of the riparian owner to use water, not only for his domestic and household uses, but for irrigation as well.134 However, the most famous and controlling case in the ValmontPlantations case135 in which the supreme court affirmed the holding that lands riparian to the lower Rio Grande, held under Spanish and Mexican grants, have no appurtenant right to irrigate with the river water. This did not affect anything previously said regarding such common law rights. The Texas Legislature, on its part, has disclaimed any intent to impair vested riparian rights or rights of property, but has recognized no riparian right in the owner of any land that passed out of State ownership after enactment of the appropriation act of 1895.136 In none of the complete water appropriation 131 For historical background of the three reconstruction courts of Texas and a study of the last one, the "semicolon court," see Norvell, James R., "Oran M. Roberts and the Semicolon Court," 37 Tex. Law Rev. 279 (1959). 132Fleming v. Davis 37 Tex. 173, 194 (1872). 133Mud Creek Irr., Agric. & Mfg. Co. v. Vivian, 74 Tex. 170, 173-174, 11 S. W. 1078 (1889). See also Watkins Land Co. v. Clements, 98 Tex. 578, 586, 587-588, 86 S. W. 733, 107 Am. St. Rep. 653, 70 LRA 964 (1905). 134Motl v. Boyd, 116 Tex. 82, 107-108, 286 S. W. 458 (1926). 135 Valmont Plantations v. State of Texas, 163 Tex. 381, 355 S. W. (2d) 502 (1962). 136Tex. Rev. Civ. Stat. Ann. arts. 7507, 7619, and 7620 (1954). |
