This is an appeal by the Texas Water Commission from the district court's modification of the Water Commission's Final Determination in the Adjudication of Water Rights in the Brazos III Segment of the Brazos River Basin.
The Commission held a number of hearings over an extended period of time and then filed its Final Determination in the district court. Affected persons were given notice of the filing, and appellees filed their exceptions to the determination. Here, there were 6 exceptions filed by 11 affected persons to the Water Board's determination.
The trial court, after considering all evidence before the Water Board as well as all evidence taken in its hearing, modified the Commission's determination by recognizing equitable water rights for all of the exceptors.
The Water Commission appeals contending "the trial court erred in creating equitable water rights under Section 11.303 in that no equitable power exists to create water rights".
The parties stipulated that for each claim at issue the original land grant was made prior to January 20, 1840 (which, in the absence of a specific grant from the Sovereign, conveyed no right to divert and use water).
The Water Commission took the position that any grants arising after January 20, 1840 (the date when Texas adopted the Common Law) carried no automatic appurtenant irrigation rights, citing State v. Valmont Plantations, 346 S.W.2d 853 (Tex.Civ.App. — San Antonio 1961), affirmed and opinion adopted as opinion of the Supreme Court, 163 Tex. 381, 355 S.W.2d 502 (1962); and that it had no jurisdiction to recognize any claim of a water right based on equity.
District courts, however, do have equitable power by virtue of Article V, Section 8 of the Texas Constitution as amended in 1891; and such equitable power is available in a proper situation to recognize water rights in land owners adjacent to rivers whose grants were patented prior to January 20, 1840.State v. Hidalgo County Water Control and ImprovementDistrict No. Eighteen, 443 S.W.2d 728 (Tex.Civ.App. — Corpus Christi 1969, writ ref'd n.r.e.). InHidalgo, the court of appeals recognized equitable water rights for claimants holding under pre-1840 Spanish or Mexican grants based upon the long use of water by those claimants and the claimants' assumption that they had the right to irrigate.
Appellees herein showed to the Water Commission and the trial court that prior to Valmont, supra, there was uncertainty as to the nature and origin of water rights in the Brazos River; that numerous dams have been constructed on the Brazos River which have changed the river from a free-flowing stream to a controlled water course; that this has resulted in a great amount of water being available for irrigation due to the ability to catch and store flood waters in these reservoirs; that it was undisputed at trial that there was an abundance of water in the Brazos River; that such waters, if released and not beneficially used, will flow unused into the Gulf of Mexico; that appellees have used water from the Brazos River for irrigation purposes in good faith on a yearly basis for many, many years; that during such time, no one has complained or tried to stop such use, including the State or any of its agencies; that appellees have spent great sums of money developing irrigation systems which utilized water from the Brazos River; that their land values would be greatly reduced if denied water rights to the Brazos River; and that since the inception of irrigation many years ago, there has never been a time when water was not available for diversion and use by appellees.
We think the trial court was authorized to use its constitutional equity powers as it did, and that the evidence sustains such action.
The Water Commission further contends that even if the trial court did not err in creating equitable water rights, it did err in assigning a priority date for such rights *Page 216 earlier in time than the date of the judgment.
It is clear that the court did not "create" equitable water rights, but rather recognized those rights which were already in existence long before the date of the judgment. Since the rights were in existence long prior to the judgment, the trial court did not err in setting the priority date as the date of first beneficial use for each appellee.
All of appellant's points are overruled.
Appellees by cross-points assert the trial court erred in refusing to recognize water rights for certain appellees based on the doctrine of prescription; and that certain sections of the Texas Water Code are unconstitutional.
Appellees' cross-points are overruled.
The judgment of the trial court is affirmed.
AFFIRMED.