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Honorable George Beto Opinion No. C-229 Director Texas Department of Corrections Re: Riparlan Water Rights Huntsville,Texas of the Department of Correctlo& on Oyster Creek/Fort Bend Coun- Dear Dr. Beto: ty, Texas. Your recent letter requested the opinion of this of- floe on the question of whether,the Department of Correc- tions has riparian rights on Oyster Creek on the Harlem and Central Prison Farms in Fort Bend County. From other correspondenceand from discussionwith your assistant director of agriculture,we believe that a complete answer will,requireexaminationof the following specific ques- tions: (1) Does the right to irrigate approximately 400 acres from Oyster Creek exist as a riparlan right In the aforementionedPrison Farms? (2) If the right to Irrigate generally is not a riparian right possessed by these farms, can this irrl(gationbe const,ruedas a "domestia use since the 400 acres is vege- table crops to be consumed by the inmates on the farms? We have examfned the record title to the Harlem and Central Farm properties, including the easement grants to Sugarland Industries on December 10, 1929, and to the Brasos Valley Irrigation Company on March 10, 1932. In paragraph III of the March 10, 1932, easement contract, the right to use water for "domestic"and "stock watering purposes" was retained expressly by the Prison System. The right to purchase water for irrigationpurposes from the irri.gatlon.company was expressly mentioned. There- fore, the riparian rights appurtenantto the land then owned, 'if any, were not contractedaway or conveyed. -1109- Honorable George Beto, page 2 (C-229) The rule is well establishedthat rights appurtenant to land grants are governed by the law of the sovereign when the grants were made. 163"Tex. 381
355 S.W.2d 502Tex. 500,
324 S.W.2d 1.67 (19 The five original grants encompassingthe prison property in Port Bend County in question and the granting dates and authoritiesare as follows: (1) William Morton l-1/2 League - July 15, 1824, by the Governmentof the Mexican Nation. (2) Jane Wilkins League - May 26, 1.827, by the Government of the Mexican Nation. (3) Jesse H. CartwrightLeague - March.31, 1828, by the Government of the Mexican Nation. (4) Mills M. Battle League - May 31, 1827, by the Government of the Mexican Nation. (5) Alexander Hodge League - April 12, 1828, by the Governmentof the Mexican Nation. The Texas Supreme Court in the recent case of State v, Valmont Plantations,163 Tex. 381, 355 S,W.2d 5OT 9f= I Q t d the opinion of the San Antonio Court of Civil ipie%efound at
346 S.W.2d 853. The Court thereby held that 'underthe Mexican law prior to 1836 there was no right of irrigation from a perennial stream, unless a specific grant of water for irrigationwas made by the Mexican Government. Oyster Creek was held to be a peren- nial stream in United States v. Certain Tracts of Land in Brasoria County, Tex., 93 . o ex. l Examination of the translated copies of each of the above listed grants distinctlynegatives any specific grant of water for irrigation. In fact, three of the grants spec- ify that the grant is "without facilitiesfor Irrigation.” The other two grants contain nothing which indicates that the land there involved was classifieddifferently. There- fore, we conclude that no irrigation rights were granted by the sovereign, specificallyor impliedly. The Valmont
case, supra, does not reach the matter of domest'icand 'livestockuse of water as a rfght appurte- nant to the grant. There appears to be no dispute, however, -lilO- - - Honorable George Beto, page 3 (C-229) that this use of water is consQ&ent with Mexican law' in force at the time,the grants In question were made. We believe this right to be analogous with the "natural" use of water by the proprietors of~rlparlan land granted'subsequentto the adoption of the Common Law in Texas.. This use is limited to an amount reasbn- ably necessary for domestic and'llvestockwatering ur- poses. Watkipm' #'Tex. 578, ii6 S.W. 7337Tw5l. Article 115.1:(8) of the Texas Water Comm.lssionts Rules, Regulationsand Modes of Procedure. (1964 Ed.) de-' fines domestic use as follows: "(a) Domestic Use is the use of water by an individual, or by a family unit or house- hold,,for drinklng, washing, culinary pur- poses, Irrigation of a family garden ma/or orchard when the:.proauceis~to be consumed by the family unit, and the ~waterlngof animals used in operating a farm or as food for the farm family." ,,, An aneweb to the.questlonof whether the irrigation contemplatedby the Prison System could be clas8lfledas "domestic use" Is suggested in El Paso County Water Improve- ,mentMstrlct No. 1 v. City of p Paso -F S uy4 D T 1953 di t on other g&%*243 ~;d*g2~~C,C.A! ~~~fr&j7,"c%. den. 355 U.S, 820). The court states on pages 909 and 910, the following: II The general rule is that the rlparlan rig&i of a city, owning land along a river, are no different from the rights of an Indl- vidt&l owner, and cannot be expanded to jus- tify the use of such rights as a nucleus for, supplying and selling water in great quantl- ties to the general public in said municipal- ity, . . . Such a withdrawal prima facie would seem to be out,of focus with the princi- ple of rlparian equality. . . .I' Consideringthe Prison System analogouswith the City of El
Paso, supra, we hold that the proposed Irrigationof some 400 acres offland for growing vegetable crops for use F of Inmates detained within the Prison System is inconsist- ent with the concept of "domesticuse." -1111- Honorable George Beto, page 4 (C-229) SUMMARY The lands comprising Central and Harlem Farms, Texae Prison System, located~in vexi- can &and Grants in Fort Bend County, Texas, have no appurtenantright8 of irrigation f,romOyst'erCreek. Yours very truly, WAGGONER CARi? Attorney General of Texas WRR:afg APPROVED: OPINION COMMITTEE W..Vi Geppert, Chalrman J-8 M. Strock Edward R. Moffett Linward Shivers Paul'Phy Frank Booth APPROVED FOR THE ATTORNEY GENERAL By: Howard Maya -llP.?-
Document Info
Docket Number: C-229
Judges: Waggoner Carr
Filed Date: 7/2/1964
Precedential Status: Precedential
Modified Date: 2/18/2017