Untitled Texas Attorney General Opinion ( 1947 )

September 26, 1947
Hon. E. V. Spence, Chairman
Board of Mater Engineers
Austin, Texas
Opinion Ho. V-390
Re: lSecesslty for releases
by the yners ,of rights
In water. before the Board
of Water Engineers may
authorize change in’rater
uaem.
Dear Sir:
The question for opinion Is stated In
your letter of July 25, 1947, a8 follows:
“Does the Board have the power
to authorize an Irrigation company to,
change the place and purpose of use, of
all ox+ any part of the water allocated
under lts~permlt wlthout a showing that
releases or consent8 have’been obtained
from (a) owners’whoee lands abut upon the
lrrlgatloti canal, and (b) owners of other
lands Included in the permit area.!
The above quetitlon arises in connection
with pending applications to change the purpose and
place of u6e of waters permitted to certain Irrigation
companies. The solution depends ,on the function’which
you perform and the result which you accomplish at 8
hearing on such applications.
The question of your authority to enter-
tain appllcatlons to change the purpose and place of
use of permitted waters la not expressly covered by
statute and ras not considered by the courts of thle
State until the declalon by the Austin Court of Clvll
Appeals In the case of Clark 8. Brlscoe Irrlgatlon Co.,
200 9. W. (2).674, writ of error pending. It was de-.
’ ..
Hon. 2. V, Spence - Page 2 -- V-390
tided ln that case that the various statutes deal-
lng nlth the issuance of permlts under which ap-
propriative rights are acquired lnferentiallg con-
ferred upon your Board continuing supervision over
permitted waters, Including the power and authorlty
to entertain application for change.
As we construe the opinion In the
Brlscoe case, your function as regards change of
purpose and place of use, Is In the natumof a con-
tinuing pouer and duty to regulate existing permits,
entirely independent of the nature of permltteets
water right or any vested right he may have to such
a change.’ Judge McClendon ln the Clark case used
this languages
“These statutory provisions
clearly invest the Board with the power.
and duty to determine whether the uses
for which the application la made meet
the statutory objectives, Including that
of being In the public interest. i .
“Every consideration for veat-
lng such original discretion In the’Board~
applies with equal force for its exercise
in case of change of purpose or place of
use, ,We therefore think there Is implicit
in these provisions of our laws, constl-
tutlonal and statutory, a vesting ln the
Board of the continuing duty of supervialon
over the distribution and une of the public
waters of the State so as to see that the
constitutional and statutory objectives are
attained, and carrying with It the require-
ment that any substantial change In use or
place of use not authorized in the original
permlt, must have the approval of the Board.
We believe that the foregoing language makes it clear
that the same considerations which are Indulged in by
you in granting the orlglnal permit are to be considered
by you ln passing on the application for change. These
considerations are set forth in Articles 7506 and 7507,
v. c. s., wherein it Is provided that in paselng on the
original permit you are to determine the availability
of unappropriated water from the source of supply, IS
the proposed use will be for a statutory purpose, inpair
Hon. E. vs Spence - Page 3 -- V-390
cxlstlng rights, both rlparlan and approprlatlve, and
the public welfare Involved.
It has been held in Mot1 v. Boyd, 116
Tex. 82, that the function performed by you in the
matter of hearing on and issuance of the original per-
mit is not a judicial function, In our opinion, so
long as your function as regards change of purpose
and place of use is confined to regulation of the al-
ready exlatlng pemnlt and your deliberations are
limited to the same considerations which are Involved
In issuing the origlnaa permlt, the function per-,
formed by you is non-judicial and we construe this
to be, In substance, the holding of Clark v. Briscoe
Irrigation Co., supra.
In summary then, when passing on appll-
cation for change of purpose and place of use, you are
performing an administrative function, one which con-
cerns regulation or supervision of an already issued
permit, and in SuIflIIing this function you determine
in the usual manner after public notice and hearing,
if the proposed change wiII be for a,purpose authorized
by statute, will Impair existing rights, and the public
welfare involved In the change. With these consldera-
tlons in mind, we turn to your question.
The question of relative rights between
irrigation companies and persons served or entitled to
;zorrved by them has been the subject of much Iitlga-
See comment in 7 Texas Law Review, pages 453 to
46g,*incIuslve, 44 Tex. Jur. page 349, Sec. 226, and
cases there cited, These ri hts as between such par- .,:
ties are defined by statute 'i;Arts. 7555, 7556, 7559, . . .‘
V. C. S.) and except on questions of rates (Arts.7560
and 7567, inc,) are subject to determination in the
usual manner before the courts of this State.
If It 1s required that releases be Sur-
nlahed, the only effect of such a requirement can be
that permlttee irrigation company must tender to your
Board evidence of the fact that it has clear and unen-
cumbered title to the waters involved and that no
interest is outstanding therein through contract,
right of easement, or other rlght secured to the Iand-
owner by statute, Such a requirement necessarily an-
ticipates that it will then be your duty to determine
Hono E. V. Spence - Page 4 --V-390
the validity of such title, resolving conflicts where
these arise, and the sufficiency of the instruments
which purport to reconvey the right or title to the
Irrigation company. In our opinion, such action on
your part would constitute the exercise of a judicial
function.
In this connection, It has been urged
In briefs submltted to us on this question, that the
granting of the application to change without Sur-
nlshing releases will deprive non-releasing landowners
of vested property rights. Thls view, In our opinion,
misconceives the effect of your action In granting the
application for change, The administrative action
which you take on the application obviously cannot af-
fect relative rights which exist between irrigation
companies and landowners, whether releases be Surnlsh-
ed or not. Whatever these rights are, your action,
unless It be judicial, cannot determine them. Pour
concern relates to the permit, the given quantity of
water permitted therein, and the change of purpose and
place of use thereof. The permit which you issue
granting the change is necessarily contingent upon
permlttee irrigation companyfs settling and acquiring
any outstanding rights acquired by contract or opera-
tion of law in the quantity of water allocated to it
by its permit. Simply because It has the permission
of your Board to make the change does not mean that the
landowner can no longer assert contractual or other
rights which he may have against the Irrigation com-
pany in the water and prevent the change If he elects
, i ~ to take this course, Whatever rights are vested ln
hlmcannot be taken away or added to by your Board and,
in our opinion, to require releases in such cases would
serve no useful purpose as regards your function in the
matter.
We do not mean that on the hearing you
are to give no consideration to the desires of the land-
: owners in the matter. Their views on the change, as ex-
pressed at the public hearing, must necessarily affect
your decision in the matter, and we conceive the public
notice of and hearing on the application for change as
the ,proper approach in these cases. This procedure Sur-
nlshes ample opportunity for the landowner to appear and
express his Views in the matter. In addition, if re-
leases are required, it becomes evident that the lrrl-
gatlon company will have to operate during the period
Hon. E, V. Spenoe - Page 5 -- V-390
COVePed Prom the date of the release to the date of
your decision, absent whatever contractual or prior
arrangewent it may have had withthe landowner. In
short, the irrigation company muat go out of business
awing this period and,in advance of knowing whether
a change will be permitted. We have already stated
that releases would serve no'useful purpose and for
reasons just indicated, we believe that to require
them would be manifestly unjust and unduly burdensome
on both landowner and irrigation company.
To require releases would unnecessarily
complicate the proceeding. It would become necessary
for you'~to determine the legal sufficiency of the re-
lease and since a water ri ht is subject to recordation
(Article 7559, V, C. S.; 'd T, J, p. 65, Sec. 49) and
is treated for the purpose of transfer and conveyance
as an interest inland (APL 7559; 44 T. J, ppe 62 to
65, Inc.) the form of the release and,'che legal suffi-
ciency thereof as a conveyance would require your ae-
cision. Questions relative to the sufficiency of the
execution of such instruments and to the parties ne-
cessary to join therein would necessarily arise, bring-
ing with them questions concerning the sufficiency of
acknowledgments, questions of heirship, matters re-
lating to wills, and passage of title generally through
decedent water right owners. We see no reason why you
should be required to pass on these matters even though
you might have the power to do so.
We are, therefore, unable to find any
basis for requiring releases in connection with your
function a8 regards the application for change, nor do
we see how such releases would add to or assist in your
deliberations as to whether the proposed change in-
volves a use authorized by law, impairs existing rights,
or is detrimental to the public welfare. We construe
existing rights in such cases as being the rights of
other appropriators holding under permits issued by
your Board, but even though existing rights do include,
as well they might, righks acquired by the landowner in
the irrigation coxnpany~s water, from what we have already
said your consideration in this regard does not require
an actual release or conveyance to the irrigation com-
pany of such rights.
The briefs previously referred to deal at
Hon. E. V. Spence - Page 6 -- V-390
length with the numerous decisions in this State
concerning rights between irrigation companies and
the persons served by them. These decisions, un-
doubtedly, show that, very definite property rights
are acquired by the landowner in the water permitted
to and furnished by the irrigation company. From
what we have already said, we consider a discussion
of these cases unnecessary. One point, however, is
made whiOh we deem it necessary to give consideration.
This involves the assertion that water and the, rights'
perfected therein when devoted to particular land be-
comes inseparably attached or appurtenant to that land
and no right of change of purpose or place of use ex-
ists, with or without your Board's approval. This
matter has been considered at length by Kinney in Ns
work on Irrigation and Water Rights, 2nd Ed.;Vol. 2,
pages 1811 to 1820, inc., Sections 1015 and 1016,
wherein grave doubts are raised as to whether water
rights may become inseparably appurtenant to land
even when made so by statute, referring to Wyoming
and Idaho statutes, but clearly showing that the wa-
ter right may not become inseparably appurtenant in
the absence of an express statute dealing with the
subject. See also Hutchins, Selected Problems in
the Law of Water Rights, U. S. Department of A ricul-~
ture Miscellaneous Publication No. 418, page 38 5.
We find no statute, or for that matter court deci-
sion, in this State which makes the water right in-
separably appurtenant to particular land so as to
preclude jurisdiction of your Board over change of
purpose and place of use. Lakeside Irrigation Co.
v. MarkhamIrrigation co., 285 S.W. 593; Dunbar v.
Texas Irrigation Co., 195 S. w, 6143 Louisiana RIO
Granae Canal Co. v. Frazier, 196 S, W. 210; Neches
Valley Irrigation Company v. Howard, 206 S.W. 575’
and Combs v. United Irrigation Company, 110 S.W. 22)
1157, have all been cited to us as sustaini;: k: in-
separable appurtenance proposition urged.
opinion, none of these cases decide the question.
.
Bon. E. V. Spence - Page 7 -- v-390
In passing on applications to
change the purpose and place of use
of permitted waters, the Board of
Water Engineers need not require ir-
rigation companies to furmish ixleases
by landowners of their rights in the
permitted waters as a requisite to the
Board's jurisdiction in the matter.
Pours very truly
ATTORNEYGENERALOFTEXAS
BDPrbt Assistant
ATTORNEYGENERAL