Appellants accept in their motion for rehearing the statement of the nature and result of the case, and likewise the findings of facts in the majority opinion. *Page 808
By the first assignment and its proposition it is urged that the state of Texas parted with its title to the land upon which their dam is situated in 1874, together with all the rights thereto in any wise appertaining including the depression now known as Barilla draw, and that the act of the Legislature (article 4991, R.S. 1913) declaring that "the ordinary flow, * * * collections of * * * rainwaters of every * * * ravine, depression or watershed * * * the title to which has not already passed from the state" has no application thereto, unless plaintiff shows that the title to the depression in question and the watershed thereof was in the state at the time of the passage of the act.
Therefore, they say, by their third assignment, the court erred in its decree in enjoining the construction and maintenance of the dam in question "unless it be so constructed as that it will permit all waters over 100 cubic feet, etc., to flow down to appellee," because, they further say, it places an unjust burden upon defendant, in that it compels them at great expense to construct for the benefit of plaintiffs an irrigation work for the delivery of water to the plaintiff and to maintain same, etc., and that the decree is an unjust and illegal interference with the use and enjoyment of private property and constitutes the taking of private property without compensation.
By their second they say that to comply with the provisions of this decree would require them to construct and maintain such expensive concrete dams as to render their property unprofitable; therefore they offer to permit plaintiff to construct such works as he may see fit at his own expense upon their property, so as to permit the excess over and above the amount apportioned to them, 100 cubic feet, etc., to flow down to his (plaintiff's) property.
If I comprehend the contentions of the appellants, they are that: (a) The uncontradicted facts establish, first, that the waters sought to be appropriated by the parties to this suit are surface waters; (b) that, being surface waters, they have the right to use their premises as they may see fit to impel or impound them and without regard to the location of appellee's premises, i. e., that appellee has no right to have the waters flow across their premises down to him; (c) and that being surface waters, not owned by the state, because not having fallen upon state lands, the act the provisions of which are sought to be invoked by appellee has no application.
If these are surface waters as contended for by appellant, his propositions are correct, but I concur in the holding of the majority of this court that, "under the facts, they are not surface waters in the true meaning of the term"; therefore the rule of the common law "that an owner in the ordinary use of his property may divert them" does not apply. Batla v. Goodell, 53 Tex. Civ. App. 178, 115 S.W. 622. But they are waters which have fallen upon a large area of country, not claimed by appellant, and afterwards by virtue of the natural drainage of the country, come together or accumulate, from time to time in a canyon, ravine, or depression, with a well-defined channel, and flow with sufficient regularity during the crop season to be of value for irrigation. Therefore the waters therein become subject to ownership or appropriation by those who may own irrigable lands adjacent thereto, in the proportion that the relative rights of the parties may obtain, and as to such rights, i. e., as to the equitable distribution to persons entitled thereto, the law must and does furnish the rules by which they may be obtained.
Under the statement of facts in this case there is no evidence that the state owns (by any means known to the law) the lands upon which these waters fall nor the depression through which they flow; consequently there is no ownership in the state of the water flowing thereon. Therefore the statute invoked does not apply, unless said statute was intended to and does fix a new and definite rule, in the place of the common-law rule, for the distribution of the waters of this and similar natural water courses. And I see nothing in this statute, which by its provisions, by strict construction, or, by necessary intendment, indicates that it was intended to give a new rule applicable to the distribution of such waters; and, since there is no proof that it, the state, owned the waters by any of the means known to the law, I conclude that the rule of common law adopted in Fleming v. Davis, 37 Tex. 173, is the rule by which we must determine the relative rights of the parties to this litigation. The property of appellee being below that of appellant, and it appearing that he (appellee) is entitled to water for irrigation from Barilla creek, and appellants having admitted that appellee is entitled to water, first, by applying for a permit from the state, and, by their second assignment, agreeing that they may have it, etc., I conclude that the judgment entered meets the equities in this case, because appellants must so use their premises as not to injure the property rights of appellee. And if they must construct a dam in order to convert the water due them from the usual flow of this depression, they must so construct it as not to take waters to which appellee is entitled. And, since there is no question raised as to the distribution made by the state being equitable, appellee is entitled to his injunction, whether the rule as enunciated in the statute or the common-law rule applies.
I therefore concur In the final conclusion or result of the majority opinion, but not in the reasoning upon which it is based. *Page 809