OCR Text |
Show 708 TEXAS 5.002 as the amount of water "economically necessary" for an au- thorized purpose "when reasonable intelligence and reasonable dili- gence are used in applying the water to that purpose." Section 5.025 declares that beneficial use is the limit of all appropriation rights and "water not so used is considered not appropriated." Section 5.026 states that no water right is perfected until the water has been beneficially used for the stated purpose. Presumably, these statutes indicate that wasteful uses are not permitted. Since "waste" in water law is a rather vague subject, it is perhaps not surprising that courts sometimes seem merely to pay lip service to the concept, as in a 1955 decision, where the Texas court refused to enjoin a use in which carriage losses of artesian water in a 118-mile stretch of natural streambed ranged between 63 percent and 74 percent.45 This conclu- sion was reached partly on the ground that waste is a problem for legislative attention, although there was a vigorous dissent. B. TYPES OF USE RECOGNIZED Statutory preferences (sec. 5.024) to be considered in granting a permit have already been discussed .The uses for which water may be appropriated are enumerated in section 5.023. It should be noted that preferences ordinarily are important only at the time of grant- ing an application for a permit. An important exception to this in Texas is found in the Wagstaff Act, which grants to municipalities a "true preference," as it is sometimes called, and which provides that any appropriation made after May 17, 1931 (effective date of the act) for any purpose other than domestic or municipal use is "subject to the right of any city or town to make further appropria- tions of the water for domestic or municipal use without paying for the water" (sec. 5.028). Although the wording is changed slightly in the new revision, the same intent remains clear. A municipality therefore has priority, without the necessity of resorting to condemnation, over any prior appropriator (other than municipal or domestic) who obtained a permit after May 17, 1931. Moreover the municipality is not required to show what its probable future needs may be. The act expressly excepts the Rio Grande River because of the international implications involved there.46 While a great deal has been written about preferential treatment for munici- palities,47 the constitutionality of the act would seem to hinge on how much importance is attached to the assumption that each ap- propriator after 1931 has notice of possible future needs of munici- palities. As a matter of practicality, it would seem that the act is likely to discourage expensive private and public development of water resources. « City of Corpus Christi v. City of Pleasanton, 154 Tex. 289, 276 S.W. 2d 798 (1955), 2 S. Tex. L. J. 74 (1955). 16 This was upheld in El Paso County Water Imp. Dist. No. 1 v. El Paso, 133 F. Supp. 894, 906-07 (W.D. Tex. 1955) aff'd in part, rev'd in part on other grounds, 243 F. 2d 297 (5th Cir. 1957), cert, denied, 355 U.S. 820 (1957). 47 J. McCall, Rights of Impounded Water, Proceedings, Water Law Conferences, p. 251 (1952-54) ; R. Swenson, Municipal Water Preference Statutes: The Texas Wag- staff Act, Contemporary Developments in Water Law, p. 27 (1970). |