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Show 700 TEXAS the Lower Rio Grande. In more recent years, Texas has witnessed prolonged water litigation involving thousands of defendants and some very far-reaching legal ramifications. Moreover, the Texas water plan of the 1960's turned out to be a most controversial matter. The history of Texas water law is reviewed by Wells A. Hutchins in a text which was useful when first published in 1961, but which is gradually slipping into history.3 Texas has been traditionally classified as a combination appropria- tion/riparian rights State. Based on a 1913 act, section 5.001 of the new water code acknowledges that Texas "does not recognize any riparian right in the owner of any land, the title to which passed out of the State of Texas after July 1, 1895." Riparian rights in other contexts still exist, however, along with appropriation rights. What follows is intended to explain briefly how all this came about. The early controversies over the existence of riparian rights cen- tered around the land grants in the 18th and 19th centuries along the Lower Rio Grande from Spain, Mexico, and the State of Tamaulipas. In an elaborate discussion in 1961 in the case of Texas v. Valmont Plantations,* Justice Pope concluded that these grants did not carry with them appurtenant irrigation rights and overruled the contro- versial dictum to the contrary in the earlier case of Motl v. Boyd.5 While acknowledging that the law of Spain and the Mexican States governed these grants at the time they were made (and, indeed, this conclusion seems to be required under the terms of the Treaty of Guadalupe-Hidalgo),6 the court concluded that there was no evidence of customary riparian rights for irrigation in the civil law governing the navigable rivers in those countries. Therefore, irrigation rights must rest upon a specific grant from the sovereign. The practice of making specific grants of irrigation rights continued in Mexico after Texas acquired its independence in 1836. Between 1836 and 1840, the civil law continued in the Republic of Texas, although one early de- cision seemed to indicate that riparian rights might have been granted during this period. The latter view is probably discredited by the Valmont case. In 1840, the Republic of Texas adopted the common law of Eng- land as the rule of decision in Texas,7 thus introducing the riparian system for the first time, although some writers contend that the riparian system is really of civil law origin and was adopted in Eng- land through the influence of the American jurists, Kent and Story.8 In 1845, Texas became a State of the United States and remained a part of the American federation (except for the years 1861 to 1870, when it declared that it had seceded from the union). The riparian theory of water rights apparently prevailed from 1845 until 1889. Between these dates, there were a few unimportant irrigation district statutes, but no major water legislation. 3W. Hutchins, The Texas Law of Water Rights (1961). *346 S.W. 2d 853 (Tex. Civ. App. 1961). aff'd on appeal 355 S.W. 2d 502 (1062). B116 Texas 82, 286 S.W. 458 (1926). See Dobkins, The Spanish Element in Texas Water Law (1959). 6 9 Stat. 922 (1848). 7 2 Gammel's Laws of Texas 178 (1840). 8 S. Wiel, Origin and Comparative Development of the Law of Watercourses in the Common Law and in the Civil Law, 6 Cal. L. Rev. 245 (1918). |
