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Show TEXAS 711 of the statute is certain to be tested. The central issue probably will be whether the two-year period within which claims must be filed is a reasonable requirement as a matter of due process. An analogy may perhaps be drawn to the Marketable Title Acts adopted in a few States in recent years.63 If the statute is sustained by the courts, it will operate most effectively to destroy ancient unused riparian rights and to bring about a merger of the riparian system of water rights into the appropriation system. 3.5 Storage Waters, Artificial Lakes, and Ponds Small ponds or water holes on private land are not public waters, and cannot be appropriated.64 Storage of public water is a matter of public control, early recognized as a matter of public concern in the 1917 constitutional amendment,65 and remains an important com- ponent of the flood control plan.66 3.6 /Springs Spring water is the exclusive property of the landowner and is not subject to appropriation.67 It has already been noted that water holes on private land, whether fed by springs or seepage water, are deemed to be private rather than public waters, are owned by the landowner, and are not subject to appropriation.68 3.7 Diffused Surface Waters Section 5.021 declares that the waters of natural streams or water- courses are the property of the State, including "the storm water, floodwater, and rainwater of every river, natural stream, canyon, ravine, depression and watershed. * * *" However, in Turner v. Big Lake Oil Go.69 the Texas Supreme Court held that to the extent this language purports to convert diffused surface water70 into public water on lands patented by the State prior to 1913, it is unconstitu- tional. While the court expressly reserved judgment on the effect of the act on lands patented subsequent to 1913, it is rather likely that the court will likewise hold such water to be private rather than public.71 Since the Turner case, Texas appears firmly committed to the position that the landowner has property rights in diffused sur- face water under the so-called "civil law" rule, and a Texas statute even permits a landowner to construct a 200 acre-foot reservoir on his property for livestock and domestic purposes without securing an appropriate water permit.72 It must be concluded that diffused 83 See Basye, Trends and Progress-The Marketable Title Acts, 47 Iowa L. Rev. 261 (1962) ; Barnett, Marketable Title Acts-Panacea or Pandemonium, 53 Corn. L. Rev. 45 (1967). <* Turner v. Big Lake Oil Co., 128 Texas 155, 96 S.W. 2d 221 (1936). 86 Texas Const., art. 16, sec. 59(a). 86 There are numerous statutes authorizing the construction of reservoirs. See par- ticularly sec. 5.140. w Texas Co. v. Burkett, 117 Texas 6, 296 S.W. 273, 54 A.L.R. 1397 (1927). 88 Turner v. Big Lake Oil Co., Note 64 above. "Id. See also Miller v. Letzerich, 121 Texas 248, 49 S.W. 404 (1932). 70 For a functional approach to the distinction between diffused surface waters and watercourses, see Hoefs v. Short, 114 Texas 501, 273 S.W. 7S5 (1925). 71 See Hutchins, Note 3, at 537. 72 Sec. 5.140. |
