This suit was brought by Ward County water improvement district No. 2, appellant here, hereinafter referred to as district No. 2, against Ward County irrigation district No. 1, hereinafter referred to as district No. 1, and the Cedarvale Canal Company.
By its first amended petition filed October 21, 1919, the plaintiff in substance alleged as follows: That it was a duly organized irrigation or water improvement district under the laws of Texas, and that district No. 1 was an irrigation district under Texas laws, and the Cedarvale Company was a foreign corporation claiming the right to do business in this state; that plaintiff had incurred heavy financial obligations in the purchase of canals, laterals, ditches, dams, headgates, reservoir rights, water rights, and water appropriations, and had issued its interest-bearing bonds in the sum of $65,000 secured by a lien upon the land situate in the district; that the plaintiff was organized for the purpose of acquiring the unappropriated waters of the Pecos river and furnishing same for irrigation purposes to the lands within the district, and also for appropriating, owning, and controlling appropriations of the waters of said river and furnishing same to said lands for irrigation purposes and domestic uses, and also for the purpose of operating canals for the benefit of the owners of riparian lands in the district abutting on said river so that the waters to which said lands were entitled for domestic and irrigation purposes might be delivered to them in the most economical and efficient manner; that about 43,000 acres of land were included in the district, about 33,000 acres thereof being riparian to the Pecos river; said riparian lands were described and the respective owners thereof named; that said lands were granted by the state prior to 1895. The petition further sets up various appropriations of water from the Pecos river for irrigation purposes made by various persons between the 6th day of September, 1890, and subsequent dates, and that the plaintiff was the successor in interest of the original owners of said appropriations and the irrigation systems of such appropriators, and that it and its predecessors in interest had been using said irrigation systems and making use of said water *Page 666 appropriations for about 24 years; that the defendants had each constructed dams in the Pecos river, thereby diverting from the river the waters thereof and conveying the same through their irrigation systems and supplying the same for irrigation purposes to lands adjacent to the systems of defendants, thereby depriving the plaintiff of the waters of the river to which it was entitled.
There are other allegations of the petition which are quite lengthy, but the foregoing outlines the material allegations pertinent to this appeal.
The plaintiff sought to have its right to the waters of the river established, and asked that the defendants be enjoined from diverting any of the waters of the river and delivering same to nonriparian lands, and that they be restrained from using any of such water which would result in decreasing the flow of the stream so as to interfere with plaintiff taking water for the proper irrigation of lands in its district, and that the rights of the defendants to the waters of the river be declared to be subordinate to the plaintiff's rights.
The plaintiff voluntarily took a nonsuit as to any and all causes of action set up in its petition "other than the rights to litigate the questions involved in the claim to riparian water rights of said stream." As to this remaining cause of action the court sustained an exception urged by the defendants and dismissed the suit. The sustained exception was to the effect that the petition was "insufficient in law in that it bases its cause of action upon the ownership of riparian lands, which ownership is vested in other parties, and not in the plaintiff, and said petition does not allege that the plaintiff is the owner of said riparian lands, or said riparian rights, and it cannot assert a cause of action herein not owned by it."
The plaintiff appeals from the dismissal of its suit upon the sustaining of the foregoing exception, and the Cedarvale Company appeals from the action of the court in striking out and dismissing a cross-action set up by it against its codefendant, district No. 1. The appeal of the original plaintiff in the cause, district No. 2, will be first considered.
The petition does not allege that the plaintiff has in any wise acquired the riparian water rights of the lands situate in its district riparian to the Pecos river, but its contention, under its first assignment, in effect is that by virute of the incorporation of the district under the provisions of chapter 87, General Laws of the Thirty-Fifth Legislature (Vernon's Ann.Civ.St.Supp. 1918, arts. 5107 — 1 to 5107 — 117) the plaintiff "became a municipal corporation which took and held in trust, for the use and benefit of the lands within the district, all of the rights of each acre of land within the district, whether such rights were riparian, prescriptive or appropriative," and therefore entitled to maintain this suit. This is the substance of the appellant's contention as set forth in its brief and written argument.
Chapter 87 of the Acts of the Thirty-Fifth Legislature and its subsequent amendments (Acts 36th Leg. [1919], c. 77) authorizes commissioners' courts to establish water improvement districts in their respective counties. Districts so established are authorized to sue and be sued. Among other powers conferred they are authorized to provide for the irrigation of the land included in the districts, to own and construct reservoirs, dams, wells, etc., to acquire the necessary right of way therefor, and they are vested with "full authority and right to acquire water rights and privileges in any way that any individual or corporation may acquire the same," and their boards of directors are authorized to construct all works and improvements necessary for the irrigation of lands in the district and the conveying of water for such purpose and all other purposes authorized by section 59, art. 16, of the Constitution. See sections 1, 24, and 108 of original act (Vernon's Ann.Civ.St.Supp. 1918, arts. 5107 — 1, 5107 — 24, 5107 — 108) and its amendments.
It will be noted that by the voluntary nonsuit of the plaintiff its cause of action narrowed down to litigation concerning the riparian water rights of the riparian lands within its district. These riparian water rights were appurtenant to the riparian lands and were owned by the various owners of those lands. The law under which the appellant is incorporated specifically authorizes the acquisition by it of water rights and privileges, but, as was said by Justice Gaines in Mud Creek Irrigation Co. v. Vivian, 74 Tex. 174, 11 S.W. 1078, "the law does not confer such rights and privileges themselves." In the opinion of the majority the question presented by the appellant is ruled against it by the principle announced in the case cited. In that case the irrigation company sued as a corporation created under the general law for the purpose of constructing and maintaining irrigation canals. By its suit it sought to enjoin the appellees from maintaining a dam on Mud creek above the point at which the waters of the creek entered its works. A demurrer to the petition was sustained and the suit dismissed. In affirming the case Judge Gaines said:
"The action, judging from the averments in the petition, seems to be based in part upon the theory that the charter of the company by designation of the locality of the canal gave it the exclusive right of the water for irrigating purposes in that locality. This we think a mistake. The franchise granted by the charter was the usual powers and privileges conferred upon such corporate bodies as should be organized under the general law of incorporation, *Page 667 together with the right to acquire by gift, purchase, or condemnation such property as was necessary or proper to carry out the objects of its creation. Act April 23, 1874, § 58.
"The charter conferred the right to acquire water privileges, but it did not confer the privileges themselves. This principle was announced by this court in the case of Tugwell v. Eagle Pass Ferry Company, Austin term, 1888. We there held that the ferry company by becoming a corporation under the general law for the purpose of maintaining a ferry over the Rio Grande at Eagle Pass acquired no right to operate such ferry without procuring a ferry license from the commissioners' court of the county in which the town is situated. The corporation by filing its articles of incorporation in compliance with the law was authorized to establish and maintain a ferry as a corporation at the point designated in its articles, but it did not acquire the ferry privilege itself. So in this case the plaintiff by its incorporation became invested with the power to acquire as a corporation a privilege of using the waters of Mud creek for the purpose of irrigation, but it did not thereby obtain a right to the use of the waters. That right remained to be acquired, which could have been done by either purchase or condemnation, provided the use was a public one.
"It is true that the act of March 10, 1875, provides that `any * * * canal company shall have the free use of the waters and streams of the state,' but the provisions of that act applied as well to ordinary companies as to corporations. Laws 2d Sess. 14th Leg. 77. Besides we are of the opinion that the provision could be held only to apply to streams upon the public lands of the state, since the Legislature had no power to take away or impair the vested rights of riparian owners without providing for the payment of a just compensation. If the defendants or the owners of the land along the stream in controversy had the right to use the water for the purposes of irrigating their lands, that right remained unaffected by the plaintiff's incorporation or by the legislation of the state passed for the encouragement of irrigation."
The majority recognizes that the law under which the appellant is incorporated is very different from that under which the Mud Creek Irrigation Company was incorporated. The petitions in the two cases are perhaps otherwise distinguishable, but it is the view of the majority that the question presented by this appeal is ruled by the principles announced in the cited case.
The title to the riparian water rights appurtenant to lands abutting on the Pecos river and situate in appellant's district remained vested in the respective owners of these lands. Their title was not affected by appellant's incorporation. The law under which the appellant was incorporated and under which it operates expressly authorizes it to acquire these water rights, but in no wise undertook to confer same. Until it has in some manner connected itself with such riparian rights, It has no right to maintain a suit to enjoin other riparian owners or water users from diverting and using such waters. Such right and user is not an infringement of any right of the plaintiff, but affects only the right of the riparian land-owners in its district, and if they do not see fit to complain the plaintiff cannot do so. The action of the court upon the demurrer presents no error.
By another assignment appellant complains of the action of the court in refusing to continue the case so that it might make all of the parties owning or controlling riparian rights or water contractual rights within its district parties to the litigation.
It appears from the motion that it was made after the court had sustained the exception to the petition. The sustaining of this exception eliminated the only remaining right asserted by the plaintiff, and, since there was no offer to amend, there was no case left to continue.
But, aside from this consideration, the riparian landowners in appellant's district and contractual water right owners therein were not necessary parties to this particular suit. They would not have been bound by any judgment which might have been entered, and their rights could not have been affected in any way. The cases cited by appellant in this connection have no application. These owners can bring an independent suit for the protection of their rights whenever they see fit to do so, and the action of the court in refusing the application of this appellant to continue the case so that it might make them parties presents no error. Article 1848, R.S.
The opinion and ruling of the majority is limited to the action of the lower court upon the demurrer and refusal to continue the case. They express no opinion upon any other matter.
As to the appeal of the Cedarvale Company, complaining of the action of the court in striking out its cross-action against its codefendant, district No. 1, and dismissing the same, this matter presents no error. The grounds of the motion filed by district No. 2 asking that the cross-action be dismissed were that there was a former suit pending in the district court of Reeves county involving the subject-matter of the cross-action between district No. 1 and the predecessor in interest of the Cedarvale Canal Company, and further that to permit the prosecution of the cross-action would necessitate the continuance of the cause. In the condition of the record it must be assumed that the grounds of this motion were true, and, if so, the action of the court in striking out the cross-action and dismissing the same presents no error.
Affirmed.