Untitled Texas Attorney General Opinion ( 1958 )

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Honorable Durwood Manford Opinion No. WW-399
Board of Water Engineers
1410 Lavaca Street Re: Authority of Reagan County
Austin, Texas Water Supply District to
exercise power of eminent
domain,, to furnish water to
residents of City of Big
Dear Mr. Manford: Lake, and related questions
you request our opinion with respect to the following three
questions pertaining to the Reagan County Water Supply Dis-
trict:
"1 . Does the district have the authority
to exercise the power of eminent domain
for the acquisition of land situated within
the boundaries of the district and needed
by it in furtherance of the purposes for
which the district was created?
” 2 I If the answer to Question 1 is 'Yes",
then may the district exercise such authority
within the district for the acquisition of
water rights?
‘I3 ,, Big Lake is the county sea,t of Reagan
County 9 1t ia repor,ted ,that all but 27
resident landowners of Reagan County reside
within the area of Big Lake city limits,
Does the district have the legal right to
use the proceeds derived from the sale of
bonds authorized by Section 5 of Article
8280-181 for the purpose of furnishing the
City of Big Lake and its residents with
water?"
Honorable Durwood Manford, page 2 (WW-399)
You also state that:
"The Board finds that the questions in-
volved do not only affect this district
but other districts in the State and do
affect the orderly development of the
water program of Texas, . . .I*
This District was specially created by Acts 54th Leg., 1955,
Ch. 504, p. 1259, codified as Article 8280-181, V.C.S., Sec-
tions 2 and 9 thereof being as follows:
"Sec. 2. The District shall have and
exercise, and is hereby vested with all
of the rights, powers, privileges and
duties conferred and imposed by the
general laws of this State now in force
or hereafter enacted, applicable to
water control and improvement districts
created under authority of Section 59,
Article 16, of the Constitution, but to
the extent that the provisions of any such
general laws may be in conflict,or incon-
sistent with the provisions of this Act,
the provisions of this Act shall prevail.
All such General laws are hereby incor-
porated by reference with the same effect
as if incorporated in full in this Act.
Provided, that the District shall not be
empowered to exercise the power of eminent
domain outside the boundaries of the Dis-
trict, wcept for the condemnation of ease-
ments and right of ways for ditches or
pipelines for the transportation of water."
“Sec. 9. In the event it becomes necessary
in the exercise of the powers conferred by
this Act that any railroad line or right of
way should be relocated, the cost of such
Honorable Durwood Manford,' page .3 (WW-399)
relocation and any actual and reasonable
damage ,incurred in changing and adjusting
the lines and grades of such railroad
shall be paid by the District."
As the questions asked are of's hypothetical nature and are
general in scopes, the answers must be correspondingly gen-
eral. Specific fact situations may arise in which the
general rules will not be wholly applicable.
The portions of Article 8280-181 quoted above are plain as
to the adoption for this District of the general law appli-
cable to water control and'improvement districts, and the
authorities setting out the purposes of the~creation and the
powers of such districts, including their power of eminent
domain, are reviewed, in part, in Lower 'Nueces River Water
Supply District v. Cartwright, 274 S.W.2d 199 (Civ.App. 1954,
error ref. n.r.e.) at page 206, as followsr
"The general laws of the State applicable
to water control and improvement districts
. . . are designated as Articles 7880-l to
7880-153, inclusive, of Vernon's Ann. Tex.
Stats. The basic Act was passed by the
39th Legislature, Acts 1925, p. 86, ch. 25,
and numerous amendments thereto have been
adopted.
"Among the purposes for which such districts
may be organized is that specifically stated
in Subdivision (a) of Section 59 of Article
16, Constitution of Texas, namely, 'the con-
trol, storing, preservation and distribution
of its (the State's) Storm and flood waters,
the waters of its rivers and streams, for
irrigation, power and all. other useful pur-
poses, * * *.' Article 7880-3. To these
distr$cts,:arei:idefegated'such functions,
powers, authority, rights and duties as may
permit the accomplishments of the purposes
for which such districts may be created, in-
cluding the investigation, and in case a plan
Honorable Durwood Manford, page 4. (WV+gg),
for improvements is adopted, ,thsn,the con-
struction, maintenance, and aperation of all
necessary improvements,, plants, works and
facilities, the acquisition of water rights
and all other properties, lands, tenements,
easements, and all other rights helpful to
the purpose of the organization of the dis-
trict, subject only to the restrictions im-
posed by the Constitution of the State of
Texas or that of the United States: * * *.I
Article 7880-7.
"A water control and improvement district
is further empowered 'to construct all plants,
works, and improvements necessary to the pur-
pose for which it is organized and incident
thereto. * * * (They) may construct all works
and improvements necessary for the prevention
of floods, the irrigation of land in such dis-
tricts, for drainage of lands and construction
of levees to protect same from overflow, to
alter land elevations where correction is need-
ed, and to supply water for municipal uses,
domestic uses, power and commercial purposes,
and all other beneficial uses or controls.‘
Article 7880-48."
** *
"Articles 7880-125 and 7880-126 relate to the
property of a water control and improvement
district and its powers of eminent domain.
Among other means, such districts are authori-
zed to acquire under the power of eminent do-
main, 'all lands, materials, borrow and waste
grounds, easements, rights of way and every-
thing deemed necessary, incident or helpful
for the purpose of accomplishing any one or
more of the objects authorized for water con-
trol and improvement districts, which shall
be held to mean the accomplishment of said
objects.by any practicable mechanical means:
* * e-1 A detailed procedure is likewise
Honorable Durwood Manford. page 5 (WW-399)
provided for the taking of lands 'either
within or without the District,' under the
power of eminent domain."
A specific example of a type of property which a water control
and improvement district may condemn is given in the case of
Chicago, R.I. & RY. Co. v. Tarrant County W.C. & I.D. No. 1,
73 S.W.2d 147, certified questions answered, 123 Tex. 432,
73 S.W.2d 55: certiorari denied 55 S. Ct. 921, 295 U.S. 762
(19341, where certain trackage belonging to the defendant rail-
road was condemned, the Court saying, at page 56:
"The appellee is a water control and im-
provement district, a governmental agency,
body oorporate and politic, organized
under the Constitution and laws of this
state, and is entitled to condemn the
property in controversy. The statutes
relative to the organization of the dis-
trict, its purposes and operations, are
elaborate ones, designed to accomplish
the objects specified in the conservation
amendment to the Constitution (Section
59a of Article 16, Constitution of Texas),
compliance with which is here admitted."
(Matter in parentheses added)
An exception to the general rule arises in the case of property
of a municipal corporation or governmental subdivision' already
devoted to public use. Ordinarily, the power of eminent domain
extends only to the taking of private property, and does not
authorize the taking of the property of the state, or of the
subordinate municipalities through whose agency the state
government is administered, by the exercise of the right of
eminent domain, unless expressly authorized by statute. ll.Mc-
Quillin on Municipal Corporations (1950) 414, Sections 32.73
and 32.74.
Exercise by such Districts of the power of eminent domain for
some purposes is additionally authorized in Article 7472b, V.C.S.,
but is limited in Article 7504, V.C.S.
Honorable Durwood Manford;~page 6' (WW-299)
The authority of~the District to condemuwater rights, in-
quired about in your second question, would depend upon the
specific facts in each case, such as the purpose ~for which
the water will be used under the condemned water rights,
the purpose for which waters are presently being used under
the water rights, land the legal characteristics of the pre-
sent owner or claimant to the water rights. For instance,
a District could not condemn a city's water rights under
which it supplies water for domestic purposes in order to
provide water for irrigation, but a District could ordi-
narily condemn irrigation rights in order to provide water
for domestic purposes.
As a general rule, but subject to exceptions which may result
from varying factual situations, your first and second ques-
tions should be answered in the affirmative.
As to your third question, the legal right of the District to
use proceeds derived from sale of bonds authorized by Section
5 of Article 8280-181 for the ultimate purpose of furnishing
the City of Big Lake and its residents with water would depend
upon the purpose of issuance of the ~bonds as stated in the
voted proposition and throughout the proceedings relative to
issuance of the bonds.
Bonds may be issued only for a purpose specifically authorized
by law and the proceeds of the sale thereof must be devoted
exclusively to such purpose. Beaumont v. Matthew Cartwright
Land, etc., Co., 224 S.W. 589 (Civ.App. 1920, error ,refused);
Simpson v. City of Nacogdoches, 152 S.W. 858 (Civ.App. 1912,,
error dismissed); Keel v. Pulte, '10 S.W.2d 694, reversing
297 S.W. 241 (Comm.App. 1928).
There is no statutory authorization for the issuance of bonds
by the District for the purpose of furnishing the City of Big
Lake with water.
However, it is clear that such a district may ordinarily issue
its bonds in conformity with the procedure authorized by law,
and pursuant to the water conservation purposes set out in
Section 59(a) of Article XVI, Constitution of Texas, for the
purpose of constructing a waterworks system (Article 7880-48,
Honorable Durwood Manford, page 7 (WW-399)
as amended) and from such system it may "award use of
waters of the District" for domestic and municipal use
(Article 7880-4a, as amended) and may charge for water
furnished (Article 7880-106).
We do not here pass upon the authority of the District and
the City to enter into a long-term contract relative to the
use of waters of the District, as the question is not pre-
sented.
SUMMARY
As a general rule, but subject to excep-
tions resulting from varying fact situa-
tions, a water control and improvement
district may exercise the power of eminent
domain for the acquisition of land and
water rights situated within the district.
Such a district may ordinarily issue its
bonds for the purpose of construction of
a waterworks system, and may then award
use of its waters for domestic and muni-
cipal use and may charge therefor.
Yours very truly,
WILL WILSON
Attorney General of Texas
Howard W. Mays
APPROVED: Assistant
OPINION COMMITTEE
George P. Blackburn, Chairman
Wallace Finfrock
Morgan Nesbitt
Richard Stone
REVIEWEU FOR THE ATTORNEY GENERAL
By: W. V. GEPPERT