The Case Mentioned Earlier in this ThreadLandowner = Appelant
State of Texas = Appellee
Final decision:
We have examined and reviewed all of appellants' points of error and all are overruled. We find no reversible error. The trial court correctly concluded and held that (1) the Texas Water Rights Adjudication Act is constitutional in all regards and constitutional as applied to all claimants of water rights herein; and (2) the north fork and south fork of the
Guadalupe River are navigable water courses from their mouth up to the area of any claim asserted in this adjudication.
The judgment of the trial court is affirmed.
Relevant text:
We basically agree with appellee's contentions and affirm the judgment of the trial court. It is clear that prior to the passage of the current Water Rights Adjudication Act Texas water law was in a state of great confusion. One court remarked that Texas water laws and decisions are in hopeless confusion and their application would be difficult; that such laws confer little real authority upon the State Board of Engineers; that permits have been granted on many streams and if riparian rights are given the full effect for which plaintiffs contend practically every drop of water, normal flow or flood is bespoken.
Martinez v. Maverick County Water Control & Improvement District No. 1, 219 F.2d 666 (5th Cir. 1955).
Shelton argues that riparian water is land and that beginning in 1840, and continuing until the effective date of the Water Code, every parcel of land patented to an individual or corporation that was bounded or crossed by a stream carried with it full and complete riparian rights, as part of the land itself.
We find no substantial basis for appellant's contention in this regard. The riparian right is one of use only; it does not carry with it ownership in the corpus of the water itself.
Magnolia Petroleum Co. v. Dodd, 125 Tex. 125, 129, 81 S.W.2d 653, 655 (1935);
Texas Co. v. Burkett, 117 Tex. 16, 25, 296 S.W. 273, 276 (1927);
Rhodes v. Whitehead, 27 Tex. 304, 309 (1863). Riparian rights can attach only to water below the "line of highest ordinary flow." Under the common law as it has been applied in Texas, the riparian property rights extended to the reasonable use of the riparian waters. This reasonable use was limited, however, so that the owner had no right to use the water in such a way as to cause substantial injury to the common right of other riparian owners.
Motl v. Boyd, 116 Tex. 82, 100, 286 S.W. 458, 470 (1926);
Great American Development Co. v. Smith, 303 S.W.2d 861, 864 (Tex.Civ.App.Austin 1957, no writ);
Stacy v. Delery, 57 Tex.Civ. App. 242, 122 S.W. 300, 303 (Tex.Civ.App., 1909, no writ).