I respectfully dissent. While I concur in the majority's disposition of point of error one, concerning the jurisdiction of the trial court, I believe the majority is mistaken in their interpretation of the Mexican law applicable at the time of the Hernandez Grant.
The Water Commission, in both its final and Modified Final Determination, concluded that:
No claim [of water] was recognized for land granted by Spain or Mexico in the absence of proof showing the existence of a specific grant of water.
Appellee's title to his tract is based on a grant made to Francisco Ricardo Hernandez in 1833 by the Mexican State of Coahuila and Texas. The land grant read in part:
As legal owner he may possess and enjoy freely the tract which has been reported with all the uses, customs, and appurtenances which correspond to him now and always.
The Medio Creek, which was a non-perennial stream in 1833, crossed the boundaries of the tract. No mention of water rights appears in the conveyance and thus appellee initially failed as a claimant before the Commission. The Commission derived its requirement of an express grant of water from the holding in State v. Valmont Plantations, 346 S.W.2d 853 (Tex.Civ.App. — San Antonio 1961, opinionadopted, 163 Tex. 381, 355 S.W.2d 502 (Tex. 1962)), that civilian grantees did not possess implied riparian irrigation rights. The appellees excepted to the Commission's determination.
The trial court, in turn, reversed the Commission and found that the "claimant owns in fee and may capture and use all storm and rain waters flowing in the Medio Creek." This conclusion was based apparently, at least in part, on two legal principles. The judgment recites the rule in McCurdy v.Morgan, 265 S.W.2d 269 (Tex.Civ.App. — San Antonio 1954, writ ref'd), that a civil law land grantee did own the streambed of a non-perennial stream within his tract. The court also made reference to the rule which has its origins in Roman civil law that a grantee owns the waters of a non-perennial stream when the stream is contained entirely within the boundaries of the grantee's tract.
The question on appeal thus turns on whether, as the State argues, the rule in Valmont Plantations, supra, extends to non-perennial streams and an expressed grant of water is required to have an interest in the waters of Medio Creek, or whether a conveyance under Mexican law in 1833 carried an implied grant of water rights in non-perennial streams. The question must be resolved by application of the law of the sovereign at the time of the grant. San AntonioRiver Authority v. Lewis, 363 S.W.2d 444, 447 (Tex. 1963). The law of this case is the law of Mexico in 1833.
The law of Mexico in 1833 was a product of Mexican history. After obtaining independence from Spain in 1821, Mexico promulgated a constitution in 1824 creating a federal republic and guaranteeing among other rights, the right to property. Mex. Const. art. XI (1824). The Mexican National Congress subsequently enacted legislation intended to foster colonization. The various constituent states of the new republic also adopted constitutions. The State of Coahuila and Texas, moreover, enacted colonization laws in 1825 and 1832. The federal constitution left the subject of water law, by implication, to the states. Both parties agree that any acts or ordinances by the governments of the Mexican Republic or the State of Coahuila and Texas would govern. Both parties also agree, however, that there is no dispositive law on the subject of rights in non-perennial waters contained in either the Mexican national or state constitutions or in any legislation or ordinances *Page 611 enacted by either level of Mexican government. The parties, as shall be noted later, make different inferences from the colonization legislation enacted by both the federal and state governments during this period.
Where the positive law of Mexico provides no definitive answer, resort must be had to pre-1821 Spanish law. More specifically, the law of New Spain (colonial law) has priority over the law of Peninsular Spain. This distinction, between the law of New Spain and Peninsular Spain, dates from the 17th Century. The Castilian kings of Spain treated their dominions in the New World as part of their royal patrimony or as personal property. But in order to facilitate effective royal government, a Council of the Indies was established to make laws for and to govern the Spanish colonies in the Americas. Under the cedula of December 14, 1614, Castilian law was decreed to be applicable in New Spain only to the degree it was enacted by The Council of the Indies. Indian law, therefore, developed independently of, if not in contradiction with, Castilian or Peninsular Spanish law. The primary sources of Indian law are the Recopilacion de las leyos de Indias (1680), and subsequent compilations of laws and ordinances effective in the Indies. Only when the law of the Indies is silent is the law of Peninsular Spain relied upon. The parties agree that the following hierarchy existed within Spanish Peninsular law:
1. Leyes de Toro (1505).
2. Ordenamiento de Alcala (1386).
3. Fueros Municipales y Reales.
4. Siete Partidas (1286).
The parties are in dispute, however, on the place or influence of Roman law has in Spanish Peninsular law. This dispute need only be resolved, of course, if we are compelled to rely upon Peninsular law to resolve the questions raised by this case.
I find upon examination of relevant authority, bearing in mind the hierarchy of applicable law, that appellant is correct in his assertion that the rule in Valmont supra, extends to non-perennial streams. Conversely, I believe thatMcCurdy supra, is dispositive of only the ownership of streambeds and not the waters of non-perennial streams. The law of the Indies, examined thoroughly by Justice Pope inValmont Plantations, is controlling. There is no definitive rule in Mexican legislation concerning waters of non-perennial streams. However, the colonization laws of the period support a requirement of explicit grants. The treatment of non-perennial stream waters under Peninsular Spanish, Roman, and other civil law systems was not adopted in New Spain.
The court in Valmont Plantations noted that:
State v. Valmont Plantations, 346 S.W.2d 853, 859 (Tex.Civ.App. — San Antonio 1961, opinion adopted, 163 Tex. 381,355 S.W.2d 502 (Tex. 1962). TheRecopilacion recites from the year 1519 the following:According to the laws of Spain, the king owned a monopoly over the Indies. They were his private property, his royal patrimony. Colonial administration was his exclusive prerogative and the king's will was the law.
By grant of the holy Apostolic See and other just and legitimate titles, we are lords of the West Indies, the islands and continents of their oceans, discovered and to be discovered, and they are incorporated in our royal crown of Castile.
Recopilacion de las leyes de las Indias, Book III, Title 1, Law 1 (1519).
The care and management of the king's property, of the New World, was delegated to The Council of the Indies in the year 1520. See Valmont Plantations, 346 S.W.2d 853, 859 (Tex.Civ.App. — San Antonio 1961, opinion adopted, 163 Tex. 381,355 S.W.2d 502 (Tex. 1962). Among the duties of the royal officials of New Spain was the conveyance of land and water rights:
The viceroys and audencias shall see to what shall be of good government in regard to the pastures, waters, and public buildings.
Recopilacion de las leyes de las Indias, Book IV, Title 17, Law 9 (1532). *Page 612
The court in Valmont found that in guarding the king's interests the governors of New Spain would not part with rights by implication. Appellees argue strenuously that the rule in Valmont is not applicable to non-perennial stream waters. The heart of appellees' argument is that the rule governing ownership of non-perennial stream waters is to be found in Peninsular Spanish law, heavily influenced by Roman law. Appellee contends the law of Castile made a distinction between public waters, rivers and perennial streams, and private waters, creeks and non-perennial streams. The former were held in common, while the latter were the property of the landowners who could use them as they saw fit so long as the use was not to the detriment of third parties. Further, the distinction held true under ancient Roman law. Doctor Hans Baade, the State's expert witness, quarreled with the appellees' interpretation of Peninsular and Roman law. Doctor Baade is of the opinion that Peninsular Spanish and Roman law permitted ownership of non-perennial stream waters only where the stream was wholly contained within the land owner's tract. The Medio Creek, crosses several tracts of land above and below the Hernandez grant.
The actual law of the Indies codified in theRecopilacion, certain key events in Spanish colonial history, and commentaries on Indian law, support appellants' position. Initially, the inclusion of the New World as part of the King's personal domain, his realengo is not consistent with a private-public distinction for property. As Doctor Baade stated in his memorandum on the Hernandez grant:
The chief consequence of the direct proprietary title of the kings of Castile to the territories of the Spanish Indies was quite simply that there was no immediate need for distinguishing public and private water courses.
Memorandum: Irrigation Rights of the Francisco Ricardo (Hernandez) Land Grant, 41.
Provisions within the Recopilacion, itself, are also instructive. The viceroys and audencias were, for administrative convenience, granted the authority to act for the king in disposing of his land and waters in New Spain. On the subject of water rights, these officials were instructed that:
The woods, pastures, and waters of the settlement and the woods contained in grants which have been made or which we shall make . . . in the Indies, must be common to Spaniards and Indians.
Recopilacion de las leyes de las Indias, Book IV, Title 17, Law 7 (1533).
We have ordered that the pasture, woods and water be common in the Indies. . . .Id., Book IV, Title 17, Law 5 (1541, 1550).
The term water or "agua" used in the Recopilacion, does not, however, according to appellee, encompass non-perennial streams. Yet the language of the cedula dates from a decision of the audencias of the Indies in the matter of the land grant to Hernan Cortez in 1529. Cortez received a substantial grant of territory in Mexico with the provision that the grant included "woods, pastures, and running, stagnant, and percolating waters." Protests arose against the magnitude and unfettered nature of the grant to a private individual. The audencias of the Indies resolved the conflict by declaring in a cedula in 1533 that woods, pastures, and waters of places and forests conveyed to private individuals would be held in common. Baade, Memorandum: Irrigation Rights of the Francisco Ricardo (Hernandez) Grant, 45-46. This classification of waters, was made in response to the Cortez Grant, enumerating the various kinds of waters and was later codified in theRecopilacion. Recopilacion de las leyes de Indias, Book IV, Title 17, Laws 5, 7 (1533, 1541, 1550).
The court in Valmont cited Lic. Enriquez, a civil law commentator, for the proposition that:
* * * * * *
(3) That the primary title was always the grant to such an extent that when a title of land did not mention waters, a right of water was never considered to exist, solely by reason of proximity or accession. . . .* * * * * * *Page 613
(5) Waters that were not granted remained in the Royal Patrimony;State v. Valmont Plantations, 346 S.W.2d 853, 862 (Tex.Civ.App. — San Antonio 1961), opinionadopted, 163 Tex. 381, 355 S.W.2d 502 (Tex. 1962).(6) In New Spain the distinction of Spanish Peninsular law between public and private rivers was never in force, nor did colonial law contemplate rivers as things distinct from the waters, because it was the property of the crown. . . .
Waters that were not granted remained in the royal patrimony. The court also noted the opinion of Lasso de Vega, who stated that:
It is necessary that the private possessor allege and prove that these things [waters] have been conceded to them by a special grant from the same king and Catholic masters, or in their name; because the law says: only the prince and no one else has the right to grant waters.Valmont at 861.
The authorities relied upon in Valmont, therefore, emphasize the supremacy of the crown over waters in New Spain and the strong prejudice against implied grants operating against the Crown. As noted, one authority, Enriquez, explicitly found that the private public distinction was not applied in New Spain. Similarly, Molina Enriques wrote concerning Mexican water law that:
When rain waters enter a visible and fixed channel in which they run periodically, they then cease to be definitely communal, because the bed is already part of their condition, and they are transformed into creeks, whose total and definite appropriation is now possible. Nevertheless, there still is no accession between the waters and the source: first, because no statute and no principal of our national law has established such accession. Secondly, because the constant movement of the waters and the immobility of the channel combined to repudiate any idea of permanent union between the former and the latter. Thus, only when dealing with the creek that rises and terminates within the same estate can the land owner consider the creek to be his. Beyond that case, the accession of waters of the creek to the land in which it rises to the lands through which it passes, is an absurdity rejected by common sense.
Baade, Memorandum: Irrigation Rights of the Francisco Ricardo (Hernandez) Land Grant, 56-57. The Medio Creek is not, of course, wholly contained within the Hernandez tract and in fact crosses several adjacent tracts.
The statutory framework for colonization established by the State of Coahuila and Texas in this period is also of assistance in resolving our question. Under the state Colonization law of 1825, which codified much of the law of the Indies, the system of land price classification provided:
The new colonist shall as a species of acknowledgment pay to the state for each lot of pasture land, $30.00, $2.50 each subdivision of arable land not irrigated, and $3.50 for each one of irrigated land.
1 H. Gammels, Law of Texas 102, art. 22 (1898).
In article 12 of the act, the following was provided for:
Supposing the quantity of land above stated to be the unity, and a division of the land being made, when distributed into grazing land and those adopted for tillage by means of irrigation, or not required or not requiring irrigation. . . .
1 H. Gammels, Laws of Texas 101, art. 12 (1898).
The Hernandez grant included both pasture land and arable land, but no provision was made for irrigated land. Arable land was that land which was capable of cultivation from rainwater alone. The subsequent Colonization Act of 1832 uses the generic term "waters" on several occasions, see 1 H. Gammels 298, arts. 5, 7, 21 (1898), as well as the mandate:
The survey of vacant lands that shall be made upon the borders of any river, running rivulet or creek, or lake, shall not exceed one-fourth of the depth of the land granted, should the land permit.*Page 614 1 H. Gammels, Laws of Texas 302, art. 29 (1898).
The State colonization program, therefore, envisioned a detailed system of grants based in part on differences in water rights. The laws of 1825 and 1832 made no express distinction for treating rivers and creeks differently and in fact used the general term waters. Creeks, rivulets, and lakes were to be surveyed for purposes of land conveyances as were rivers. The Hernandez grant contains a reference to the Medio Creek for purposes of the land survey, but contains no specific grant of rights in the waters of the Medio Creek.
The appellees point to the public policy of the various successive governments from Spain to Independent Mexico, to colonize the sparcely populated lands of Texas. This policy, so the argument goes, would have been frustrated if the settlers could not have enjoyed the ownership of the non-perennial stream waters contained on the land. A similar policy argument was advanced in Valmont Plantations on behalf of ownership of riparian rights and rivers, which in the context of available technologies would have been much more valuable to the land owners, and was rejected in the face of conflicting law. State v. Valmont Plantations, 346 S.W.2d 853, 869, 878 (Tex.Civ.App. — San Antonio 1961),opinion adopted, 163 Tex. 381, 355 S.W.2d 502 (Tex. 1962). Perhaps wise policy should have dictated implied ownership of waters by settlers. But an equally convincing public policy argument, reflected in authorities since the dispute over the Cortez grant in the sixteenth century, Recopilacion de las leyes de Indias, Book IV, Title 17, Laws 5, 7 (1533, 1541, 1550), is that water was a critically important resource held for the common good by the Spanish crown and the successor sovereigns of Texas. Similarly, minerals, also highly prized, were owned by the crown in common. Baade, Memorandum: Irrigation Rights of the Francisco Ricardo (Hernandez) Land Grant, 24-25.
Additionally, appellees advanced the contention that no practical reason existed to require explicit grants of non-perennial streams in that the tract owners' use of such waters was the equivalent of exploiting the rainwaters he owned as a matter of right. This argument blurs the distinction between the collection of diffuse surface waters and the use of water contained in streams.1 The Medio Creek in 1833 may have been exclusively fed by rainwater, but it was nonetheless a creek, and part of the general watershed of the Medina River. Moreover, a non-perennial stream need not be an insubstantial body of water and the term includes streams which flow nine months of the year and are only dry during the summer months.
Appellees also state that their research of grants during this period reveal no grants which includes rights and non-perennial streams. There are, however, examples of grants presented by the State:
I grant to Paro Lopez Pinta, presbyter, the water of three creeks, a very small one called Anamasquistle. . . . (1615).That said second lieutenant owns a hacienda in the jurisdiction of that congregation through which flows a river which comes down from the mountain range and mines . . . and which is not perrenial and does not have any streams because it runs only in the rainy season and when the creeks are running. . . .
Reply Brief for Appellant, Appendix VI at 8-10, 18-20.
The appellees attempt to distinguish these grants as actions by overly cautious land owners who desire to avoid potential disputes with neighbors by obtaining administrative resolutions by the authorities concerning water rights. Nonetheless, *Page 615 these grants stand as evidence that non-perennial streams were subject to explicit references and grants. The limited number of such grants is probably attributable to the limited utility of non-perennial streams for irrigation purposes under the then existing technologies for irrigation. Moreover, the fact that ownership of non-perennial streams could not be held by private individuals unless an explicit grant was made, did not deny the right to individuals to make use of these waters.2 The purpose of classifying streams as part of the royal or public domain was to protect access to these waters by the public manner and to prevent exclusive use by individual private landowners. I would, therefore, sustain the appellant's second point of error.
The rights of grantees of lands granted by Spain or Mexico extended, under the civil law, to the use of diffused surface waters collecting on their lands, such vested rights could not be divested by the State. . . .Id. at 36. (Emphasis added).
Well, in accordance with the law of the time other people could have traversed or crossed the grant in order to water his cattle, for example, their cattle, or to use the water for his private purposes if they did have a title to do that and the title to do that is called in our tradition a sevitude. . . .
Statement of Facts at 166.