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Show TEXAS 701 The Irrigation Act of 1889 9 introduced the appropriation system in the arid portions of Texas only. It provided that an appropriator might acquire a water right by diverting water from a stream and putting it to beneficial use. He was required also to file with the county clerk an affidavit and map illustrating the diversion works and describing the proposed use. The act was rewritten in 1895.10 The new statute divided the public waters into (1) "ordinary flow and underflow" and (2) "storm or rain" waters. Riparian rights at- tached only to the former. The map and affidavit provisions of the earlier act were retained, but without any forfeiture for failure to file. The affidavit was required to show the approximate number of acres to be irrigated, the name of the ditch as well as its size, capacity and location, the name of the appropriator, and the stream from which the water was diverted. A water right was perfected upon com- pletion of the works and a diversion of the water. Both acts protected "vested rights" which had accrued but, unfortunately, failed to say whether riparian rights were superseded by the appropriation system. The Burgess-Classcock Act of 1931,11 which repealed the earlier acts, was the first appropriation act to have statewide application. It created the State Board of Water Engineers. The county clerks, who figured prominently under the 1889 and 1895 water statutes, were required within 1 year (later extended) to file certified copies of all instruments in their offices relating to the appropriation of water with the board of water engineers, where they were to be filed and serially numbered. These provisions were apparently merely direc- tory and not mandatory,12 as explained in section 3,4, infra. These filings are commonly referred to as "Certified Filings" or "C.F.'s" in Texas. The new act also introduced a permit system which superseded the county clerk filing procedure, and contained-for the first time- the wording referred to in section 5.001, to the effect that riparian rights in State grants were not recognized after 1895. The 1913 act was revised and expanded in the Canales Act of 1917,13 which also retained the permit system and which has re- mained the basic Texas water law to the present time. A procedure for adjudicating water rights in this act was held unconstitutional by the Supreme Court on the ground that judicial functions were unlawfully delegated to an administrative agency.14 The decision, however, had no application to the permit system outlined in the statute. It should also be noted that a constitutional amendment in 1917, relating to the conservation of natural resources, preserved the distinction between ordinary flow waters (to which riparian rights might attach) and storm waters.15 Legislation enacted in 1921 removed the ordinary flow versus storm water distinction, and although ordinary flow waters might there- after be appropriated, vested rights of riparians would not be preju- diced. Since 1948, applications to appropriate normal flow water in 9 Texas Gen. Laws, 1889, ch. 88, p. 100. 10 Texas Gen. Laws, 1895, ch. 2i, p. 21. "Texas Gen. Laws, 1913, ch. 171, p. 358. 12 See Board of Water Engineers v. Slaughter, 382 S.W. 2d 111 (Texas Civ. App. 1964), writ di8mi88ed. 13 Texas Gen. Laws, 1917, ch. 88, p. 211. u Board of Water Engineers v. McKnight, 111 Texas S2. 229 S.W. 301 (1921). Com- pare Corzelius v. Harrell, 143 Texas 509, 511-514, 186 S.W. 2d 961 (1945). 18 Note 2. |
