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Show 222 WATER RIGHTS SYSTEMS PERTAINING TO WATERCOURSES policies by the succeeding Republic and State governments as sources of riparian water rights. But several decades later, in 1962, the Texas Supreme Court in Valmont Plantations v. State of Texas affirmed a decision of the San Antonio court of civil appeals to the effect that despite the 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 decided that lands riparian to the lower Rio Grande held under Spanish and Mexican grants have no appurtenant right to irrigate with the river waters. There was no issue of common law riparian rights in the Valmont Plantations case. Nothing said in either of the majority opinions in the case affected anything that had been said previously with respect to such common law rights. Certain statements in Motl v. Boyd that were not affected by the Valmont Plantations decision were that from 1840-when the common law was adopted by the Republic of Texas-down to the passage of the first water appropriation act in 1889, all grantees of public lands of the Republic and State became vested thereby with riparian rights in the waters of contiguous streams, for irrigation as well as for domestic use.296 The legislature's own declaration in the water appropriation statutes is that nothing contained therein is to be construed as a recognition of any riparian right in the owner of any lands the title to which passed out of the State after July 1, 1895.297 During most of the history of the riparian doctrine in Texas, the courts took the position that the riparian doctrine is underlying and fundamental, formerly without regard to segments of streamflow,298 but limited in Motl v. Boyd to the normal flow and underflow of the stream. Waters rising above the "line of highest ordinary flow" are to be regarded as floodwaters to which riparian rights do not attach, but are subject to appropriation under the statute.299 The supreme court concluded in Motl v. Boyd that the appropria- tion statutes of 1889 down to 1917, inclusive, were valid and constitutional insofar as they authorized the appropriation of storm and floodwaters, and other waters without violation of riparian rights.300 295 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). Nevertheless, see chapter 7 at notes 656-659 regarding "equitable" rights recognized in a 1969 Texas Court of Civil Appeals case. 296 Motl v. Boyd, 116 Tex. 82, 107-108, 286 S. W. 458 (1926). 297Tex. Rev. Civ. Stat. Ann. art. 7619 (1954). These matters are discussed in more detail in the State summary for Texas in the appendix. 298Biggs v. Miller, 147 S. W. 632, 636-637 (Tex. Civ. App. 1912);Matagorda Canal Co. v. Markham In. Co., 154 S. W. 1176, 1180-1181 (Tex. Civ. App. 1913); Zavala County W. I. Dist. No. 3 v. Rogers, 145 S. W. (2d) 919, 923 (Tex. Civ. App. 1940). 299Motl v. Boyd, 116 Tex. 82, 111, 121-122, 286 S. W. 458 (1962). The underflow of a stream is included in riparian waters: Texas Co. v. Burkett, 111 Tex. 16, 28, 296 S. W. 273 (1927). 300Motl v. Boyd, 116 Tex. 82, 124, 286 S. W. 458 (1926). |