On Motion for Rehearing.
BARROW, Justice.In deference to an able and exhaustive motion for rehearing filed by counsel for appellee, we feel we should supplement our original opinion.
Appellee urges that our original opinion has left some confusion, contending that we held in effect that the San Antonio River, with its winding, shallow and narrow bed in fact constitutes a nuisance. We did not so hold nor so say. What we did say and hold was that the City, with its hundreds of square miles of improvements, buildings and pavement, due to growth and expansion, had outgrown the river. The history of San Antonio with its winding river is a matter of common knowledge of which we take judicial notice, and we need not repeat that this fact would authorize the project in which appellee is engaged, but would not authorize the taking of private property without compensation. To illustrate, we think a narrow winding street in a small community which has grown into a large city would present an analogous situation. It would authorize the project, but would not authorize the taking and appropriation of private property for the purpose, even though it be conceded that the street as it exists constituted a menace to the life and limb of the traveling public.
Next appellee complains that our original opinion does not make clear just what property was taken, damaged or destroyed. In that connection appellee asserts that the opinion stresses Appellants’ right in the dam. The opinion did point out that the dam was part of “the irrigation conduit of the Mission of San Juan Capistrano.” Ap-pellee now contends that when the channel has been changed to a location some two hundred feet west of the old channel where the dam was located, and the channel lowered below the old channel, the dam would be useless. Of course, the changing and lowering of the channel would render the dam useless. We think our opinion made it clear that the changing and lowering of the channel, as well as the destruction of the dam, left the headgate and ditch high and dry, above the present water level, and as a consequence thereof appellants are left without water in what is left of the conduit.
Appellee contends that our original opinion does not make clear just what title appellants have or had, and particularly that appellants had title or right to the gravity flow of the water. We think the grants, an example of all of them appears in a footnote to our original opinion, make clear just what was granted and owned, viz., “two dulas of irrigation water with the accompanying land for cultivation; the water to be taken from the irrigation conduit of the Mission of San Juan Capistrano, *484* * In that connection appellee argues that our original opinion does not make clear that appellants had the right of gravity flow of water into and through the conduit to their land. If our original opinion was susceptible of any other interpretation, we now desire to make it clear that we do so hold. Appellee argues that appellants are entitled to their dulas of water out of the San Antonio River but not to gravity flow. Appellee takes the position that as long as it has no objection to appellants’ pumping water out of the river, they have suffered no compensable loss or damage. We do not agree. The grant does not grant water out of the San Antonio River, in fact, the river is not even mentioned in the grant except as one of the boundaries of the land. The only thing which connects the river with the water rights is the fact that at the time the grants were made to appellants, the conduit by virtue of the dam extended into and across the river bed, raising the level of the water and turning it into the ditch. This right to the water flowing in the ditch was granted by the Sovereign Government, acting by and through its duly constituted officials. It was not a mere privilege or license which might be taken or withheld at will, but a perpetual right to the grantee, his successors, heirs and assigns. It was a hereditament running with the land.
Appellee says that under Mexican or Spanish law the Sovereign had title to the beds of all streams, and that title thereto could not be alienated except by express grant in clear language. We agree with that contention, but it is apparent from the express language of these grants that the Sovereign did make such express grant in the usual and customary way, as well as by the legally recognized method. See, Dobkins, Spanish Element in Texas Water Law, pp. 102 et seq. Appellee apparently contends that since in these grants the Sovereign did not expressly grant title to any of the bed of the. stream appellants can claim no property right in the dam in the bed of the river. Appellee relies on such cases as Heard v. Town of Refugio, 129 Tex. 349, 103 S.W.2d 728; Manry v. Robison, 122 Tex. 213, 56 S.W.2d 438; State v. Grubstake Investment Association, 117 Tex. 53, 297 S.W. 202; Phillips v. Ayres, 45 Tex. 601; Swisher v. Grumbles, 18 Tex. 164. These were all cases in which private owners claimed title to the bed of the streams involved by virtue of the description of the survey crossing the stream, or by virtue of being riparian to the stream and claiming title to the thread of the stream. We are in accord with these decisions and are also in agreement that they are in accord with Spanish Civil Law, but the instant case is distinguishable in that the San Juan claim had been in existence as a part of the conduit for almost a century at the time of the grants and the Sovereign in making the grants recognized the legality of its existence and expressly authorized its continued existence in making the grants of water rights, and thereby granted to appellants’ predecessors in title a servitude in the river for that purpose, whether it be called an easement or other class of servitude. These water rights are property rights within the meaning of Art. 1, § 17, of the State Constitution, and cannot be taken without compensation. Greenmail v. City of Fort Worth, Tex.Civ.App., 308 S.W.2d 553, wr. ref. n. r. e.
In San Juan Ditch Co. v. Cassin, Tex.Civ.App., 141 S.W. 815, 816, writ refused, this Court had before it a controversy between the owners of water rights in “Acequia de la Espada” and the owners of the water rights in “Acequia de San Juan” (the same ditch here involved). The case was on appeal from a temporary injunction which sought equitable division of the water between the users from the two ditches. The case involved the claim of prior exclusive rights of use on the part of the users from the San Juan ditch. This Court held that the rights were on a parity and said:
“While we do not question the power that was vested in the Mexican government to make valid grants of the waters of public streams to individuals that *485would give exclusive prior right, it has not undertaken to do so in this instance, and there is nothing in the grants that justifies such a construction.” (Emphasis added.)
Thus it is apparent that the Court recognized and upheld the grants of rights of the parties in and to the waters of the river and the existing conduits as the means of securing such waters, and construed such grants as covering such means under the Spanish Civil Law.
Appellee’s motion for rehearing is overruled.
MURRAY, C. J. I dissent for the reason heretofore stated.