On Motion for Rehearing
We have considered the numerous motions for rehearing filed herein. Certain errors in the original judgment relating to particular parties and tracts have been pointed out to us and rehearing is granted to the extent of correcting such errors. As to the main question involved upon this appeal, i. e., the recognition of equitable water rights (Class B rights), we adhere to our holdings expressed in the original opinion, both as to those asserted by riparian claimants and those asserted under water contracts with municipal districts within the area. It has been argued with great force and ability that neither class of such rights should receive judicial recognition. Our reasons for recognizing such claims are based upon the unprecedented situation disclosed by the record before us. This matter has been fully discussed in the original opinion. Upon original submission, it was argued by some that the trial court’s judgment would in operation favor riparian over contract claimants. To some extent, we believe this is true. In our opinion, if equitable claims are to be recognized at all, both classes of claims should be treated equally insofar as it is possible to do so. Many equitable claims based upon contracts present questions which are admittedly close, and we have determined the good faith issue by the contract itself and the probable intended extent of the agreement as disclosed by all the surrounding circumstances of the parties, together with the general irrigation history of the area, — the early formation of private irrigation companies, the practices developed by them and their ultimately being superseded by the statutory municipal districts. We have undoubtedly given recognition to some practices which were not illegal, but might have been subject to a more stringent administrative control. Non-action on the part of the state administrative agency subsequent to the recognition of a certified filing or the granting of a permit is a factual circumstance of the case as pointed out in the original opinion. This condition has persisted until recent years when the water situation along the lower Rio Grande became so acute that action became imperative.
We should also say that we find nothing in the nature of reversible error either in the trial court’s recognition of water rights in certain persons who entered no appearance herein, or in awarding certain water rights to non-incorporated villages. Every effort was made by the trial judge to secure the appearance of all those having an interest in lands lying outside the municipal water districts. (The owners of lands within the districts were virtual parties being represented by the districts.) The present suit possesses many characteristics of a class action and in those instances where the evidence introduced showed that a party who had not appeared as requested by the trial judge, and whose land did not lie within a water district, was never the less entitled to a water right, it was not, in our opinion, error to so say in the judgment. If the rights so awarded, which generally relate to small tracts of land, are not exercised, then the situation is not without remedy under the Water Rights Adjudication Act.
It should further be pointed out that this suit does not purport to adjudicate riparian rights to water for domestic as contrasted with irrigation and similar uses. See, Valmont Plantations v. State of Texas, 163 Tex. 381, 355 S.W.2d 502 (1962); 346 S.W.2d 853 (Tex.Civ.App.1961). For that reason, we refrain from discussing such claims as are mentioned in the briefs and motions filed herein.
There is one matter raised by the motions which calls for additional writing. We are requested in the language of the motion filed herein by Donna Irrigation District, Hidalgo County No. One, and others to clarify our position “regarding retention of jurisdiction in the trial court to change *761rights adjudicated and administration of the right adjudicated herein after the appeal becomes final in this case.” Because of the prior opinion of this court in State v. Starley, 413 S.W.2d 451, handed down on March 9, 1967, and the passage of the Water Rights Adjudication Act, Acts 1967, 60th Leg., p. 86, ch. 45, Article 7542a, Vernon’s Ann.Tex.Stats., which became effective on August 28, 1967, we were of the opinion that it was not necessary for us to discuss this matter. However, in the motions it is pointed out that “if the present court-appointed water master’s system does not continue, then additional time must be allowed for the necessary transition to some other administration.”
In State v. Starley, supra, this court held that the judgment rendered by the Hidalgo County District Court (from which the present appeal is prosecuted) was a final appealable judgment despite the provisions contained therein relating to the administration and enforcement of the water rights recognized by the judgment. It was said that, “The (trial) court ‘may enlarge or abrogate or modify from time to time any portion or feature of the decree’ so long as such is confined to the ‘administration, allocation and distribution of the water’ in accordance with the adjudicated rights determined by the court. All other language in the judgment in conflict with the laws of this state would be surplusage.”
After the rendition of this opinion, the Water Rights Adjudication Act became effective and Section 8 thereof authorizes and enjoins the Texas Water Rights Commission to administer adjudicated water rights. The term “adjudicated water rights” embraces those adjudicated in a judicial as well as an administrative proceeding, and the Act is, therefore, applicable to the waters of the Rio Grande and so far as administration is concerned, such Act supersedes the administrative procedure set forth in the judgment rendered herein. Any power which under the wording of the judgment might remain in the trial court to enlarge, modify or abrogate any right recognized by the judgment is likewise superseded by the provisions of the Water Rights Adjudication Act. Section 10 of the Act recognizes that the Texas Water Rights Commission has the power under general law to forfeit, cancel or find .abandoned any water right, including adjudicated water rights. Such power is, of course, to be exercised in accordance with the constitutional precepts enjoining due process of law. As to forfeiture of water rights for willful abandonment, see Article 7544. There may be other grounds for forfeiture or modification of water rights, either explicitly stated in our statutes or impliedly inferred therefrom and applicable to those situations in which non-compliance with or violation of a statutory or administrative directive takes place. The processes under which such forfeitures or loss of rights are to be effected, initially at least, will be under the control of the Texas Water Rights Commission.
We recognize the force of the argument that a period of time of some duration is required to effect a change-over from control by court appointed administrative officials and employees to control by those selected by the Texas Water Rights Commission and for that reason have granted that portion of motions for rehearing raising this matter to the extent of specifically providing in the judgment that unless further extended by this court or the Supreme Court of Texas for good cause shown, the Texas Water Rights Commission shall assume control and administration of the water rights herein adjudicated sixty days after the judgment rendered herein shall have become final, and that thereafter the right of control and administration heretofore exercised by those officials and employees appointed and selected by judicial authority shall terminate.
To the extent indicated, the motions for rehearing are granted. In all other respects, they are overruled.
Motions for rehearing granted in part and overruled in part.