(dissenting).
I do not concur in the holdings of the majority. The effect of the majority opinion is to fix the liability of appellee to appellants and remand the cause for the sole purpose of determining the amount of damages due each appellant.
*482The concluding paragraph of the opinion reads as follows:
“We conclude that appellants have vested property rights in the San Juan Dam, head gate and ditch, of which they cannot be deprived without adequate compensation, and that the trial court erred in holding that appellants’ damages are damnum absque injuria.”
The record shows that the San Juan Acequia and Dam, hereinafter referred to as Ditch and Dam, respectively, were built in 1731, when the territory that is now Texas was a part of the Spanish Domain. The San Antonio River is a perennial stream and the bed of the river belonged to the Sovereign. The ditch, head gate and dam must therefore have originally been government property. At least they are not shown to have belonged to anyone else.
In 1824, after Texas had become a province of the Mexican Government, the “Gefe Politico” conveyed to appellants’ predecessors in title small grants of land lying between the Ditch and the San Antonio River. These grants did not cover any part of the Ditch or any part of the river bed, but the tracts bordered on both the river and the ditch. Each grantee was granted a right to use certain amounts of water from the ditch for irrigating his land at a certain price to be paid by grantee. The grantees were not granted any interest in the ditch, head gate or dam, only a right to use water. The Mexican Government did not obligate itself to maintain the dam or ditch, nor did it obligate itself to maintain a steady flow of water in the ditch. When the Republic of Texas was established it succeeded to all the rights then held by the Mexican Government. The State of Texas has relinquished all of its rights in the bed of the San Antonio River lying within the city limits of San Antonio to such City, and the State of Texas has conveyed any and all of its rights, title and interest in the river to appellee. Just who owned the dam at the time it was destroyed may not be ■clear, but one thing seems certain, that it did not belong to appellants or their predecessors in title.
The Ditch was an artificial stream, built and maintained through the years by artificial means. It was far from being a natural stream. In 93 C.J.S. Waters § 129, p. 844, it is stated:
“Although riparian rights may be acquired in an artificial watercourse by prescription, as stated infra subdivision d of this section, ordinarily, riparian rights do not attach to artificial streams in artificial channels, and, thus, the natural corporeal right to the enjoyment of an uninterrupted flow possessed by riparian owners of land on natural watercourses does not exist in the water flowing in an artificial watercourse. Hence, the owner of an artificial watercourse is not, in the absence of contractual or prescriptive obligations, ordinarily bound to maintain it for the benefit of adjoining owners, but may stop the supply or change the course of the discharge to suit his own convenience and without becoming liable to such persons. Accordingly, the right of those owners of lands, bordering on or through which artificial channels pass, to the use of the water is an incorporeal right which, in order to exist, must be acquired by grant, express or implied, or by prescription.”
In 56 Am.Jur., § 155, p. 624, it is said: “Moreover, as between the respective users of an artificial stream, rights may be acquired by lapse of time, although none can be acquired to compel the continuance of the stream.”
In 93 C.J.S. Waters § 129d, p. 845, the following statement is made:
“The use of an artificial watercourse, or the use of the waters flowing therein, may not be regarded as adverse while the user acknowledges the superior right of another and pays compensation for his own use; and if the *483right of use of an artificial watercourse has its inception by permission or license there can be no adverse use or possession until the license or permission has been repudiated, knowledge of the repudiation given, and thereafter-wards adverse use or possession for the statutory period of time.”
See also, Guelker v. Hidalgo County Water Imp. Dist. No. 6, Tex.Civ.App., 269 S.W.2d 551; Harrell v. F. H. Vahlsing, Inc., Tex.Civ.App., 248 S.W.2d 762.
Here the use of the water from the Ditch by the original grantees began with the permission of the "Gefe Politico,” and a price was paid for such use. This acknowledgment of the superior right of the government has not been repudiated, and therefore appellants have not acquired any prescriptive or riparian right to use water from the Ditch.
I cannot agree that appellants have acquired vested property rights in the Dam, head gate and ditch, of which they cannot be deprived without adequate compensation. In this summary judgment proceeding the most that can be determined is the existence of a fact question as to this matter. I, therefore, respectfully dissent from the holding of the majority.