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Show RIPARIAN RIGHT 199 In construing the water appropriation statutes, the Texas courts undertook to protect riparian rights from adverse effects, thus: These statutes could not operate on preexisting rights of riparian owners, but only on such rights as were in the State by reason of its ownership of riparian lands.42 They were valid only when they could be applied without detriment to vested property rights.43 And in various statutory enactments, the legislature itself specifically undertook to protect the rights of riparian landowners.44 The Texas Supreme Court objected to legislation45 authorizing the Board of Water Engineers (now the Texas Water Rights Commission) to make findings of fact and orders determining rights to the use of water, necessarily including riparian rights.46 But in a later decision it was concluded that the appropriation statutes of 1889 to 1917,47 inclusive, were valid and constitutional insofar as they authorized the appropriation of storm and floodwaters, and of other waters without violation of riparian rights.48 The latest major decision of the Texas Supreme Court with respect to riparian rights involved not their protection but their existence in the lower Rio Grande Valley. This decision was to the effect that lands in Spanish and Mexican grants riparian to the lower Rio Grande do not have an appurtenant right to irrigate with the river waters.49 No riparian rights of possible common law grants in the valley were in issue in this case, and the decision therein does not affect previous pronouncements of the supreme court concerning such rights. The statute of 1875, which purported to grant the free use of stream water to any company that complied with its provisions, was held by the supreme court to apply only to streams on State public lands, as the legislature had no power to impair vested rights of riparians without providing for compensation. Mud Creek In, Agric. & Mfg. Co. v. Vivian, 14 Tex. 170, 173-174,11 S.W. 1078 (1889). 42McGhee In. Ditch Co. v. Hudson, 85 Tex. 587, 591-592, 22 S.W. 398, 22 S.W. 967 (1893). A3Banett v. Metcalfe, 12 Tex. Civ. App. 247, 252-254, 33 S.W. 758 (1896, error refused); Santa Rosa In. Co. v.Pecos River In. Co., 92 S.W. 1014, 1016 (Tex. Civ. App. 1906, error refused). 44Tex. Rev. Civ. Stat. Ann. arts 7469, 7507, and 7620 (1954); Matagorda Canal Co. v. Markham In. Co., 154 S.W. 1176, 1180-1181 (Tex. Civ. App. 1913); Grogan v. Brownwood, 214 S.W. 532, 536 (Tex. Civ. App. 1919). See Hutchins, W. A., "The Texas Law of Water Rights" 412-413 (1961). 4STex. Laws 1917, ch. 88. 46 Board ofWater Engineers w.McKnight, 111 Tex. 82, 229 S.W. 301 (1921). 47Tex. Laws 1889, ch. 88, Laws 1895, ch. 21, Laws 1913, ch. 171, Laws 1917, ch. 88. "Motlv. Boyd, 116 Tex. 82, 124, 286 S.W. 458 (1926). 49 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 652-661, regarding the recognition of certain "equitable" rights and the application of a system of weighted priorities in a 1969 Texas Court of Civil Appeals case under what the court called "unprecedented" circumstances. State v. Hidalgo County Water Control & Improvement Dist. No. 18, 443 S.W. (2d) 728 (Tex. Civ. App. 1969). |