OCR Text |
Show THE RIPARIAN RIGHT 17 squarely decided by that court. The definitive decision in the Valmont case, is that the original Spanish and Mexican grants riparian to the lower Rio Grande did not carry with them implied rights of irrigation.65 The judicial opinion which led to such protracted riparian rights controversy in Texas was written by Justice Cureton in Motl v. Boyd.66 Despite the fact that no Spanish or Mexican grants were involved in that case, and that what the court actually held was that certain parties would have riparian rights if they had not become estopped to assert them, the court offered its opinion that under Mexican law riparian lands granted by the Government of Mexico had appurtenant rights of irrigation; and it totally ignored Spanish law. In the Valmont case the trial court concluded that when the grants were made, the laws of Spain did not recognize a riparian right of irrigation, but required an irrigator to exhibit his title to irrigation waters; but despite this, the court concluded that under the doctrine of stare decisis it was bound to the contrary by the erroneous dicta in Motl v. Boyd. The San Antonio Court of Civil Appeals, in an exhaustive, well-documented opinion, agreed with the trial court on the matter of Spanish law, but disagreed on the issue of stare decisis and reversed the judgment. In a brief opinion, the Texas Supreme Court affirmed the judgment of the court of civil appeals and adopted the opinion of that court as that of the supreme court. There was no issue of common law riparianism in the Valmont case. Nothing that the Texas Supreme Court previously decided respecting common law riparian rights, or riparian rights of grantees of Republic or State land, was affected in any way by this decision. Federal land grants.-By the Congressional legislation of 1877, if not by the preceding Acts of 1866 and 1870,67 the United States formally consented to the acquisition of appropriative rights on the public domain and thereby waived its right to object to the impairment of the rights of its public lands in the use of the nonnavigable streams flowing through them.68 So long as the 65 Valmont Plantations v. State of Texas, 163 Tex. 381, 355 S.W. (2d) 502 (1962), affirming 346 S.W. (2d) 853 (Tex. Civ. App. 1961). The court of civil appeals affirmed the trial court's conclusion that a "specific Spanish or Mexican grant of Rio Grande waters was necessary for irrigation purposes" and concluded that the "acts done in making the Lower Rio Grande grants refute any intent to grant waters with the land." 346 S.W. (2d) at 878. See also Duke v. Reify, 431 S.W. (2d) 769, 771 (Tex. Civ. App. 1968). Nevertheless, see chapter 7 at notes 656-659 regarding "equitable" rights recognized in a 1969 Texas Court of Civil Appeals case. State v. Hidalgo County Water Control & Improvement Dist. No. 18, 443 S.W. (2d) 728, 748-749 (Tex. Civ. App. 1969). 66Motl v. Boyd, 116 Tex. 82, 286 S.W. 458 (1926). 6714 Stat. 253, § 9 (1866); 16 Stat. 218 (1870); 19 Stat. 377 (1877), 43 U.S.C. § 321 et seq. (1964). "If the Acts of 1866 and 1870 did not constitute an entire abandonment of the common law rule of running waters insofar as the public lands and running waters were concerned, they foreshadowed the more positive declarations of the Desert Land Act of |