dissenting.
After diligent search of the authorities I am by no means convinced that the Spanish and Mexican law is as declared by the majority opinion. In fact, I find that the commonly accepted practices of those colonizing the lower Rio Grande Valley demonstrate that since the 1700’s riparian owners have had the right to use the waters of the Rio Grande to irrigate their lands. Irrigation was a necessity if the colonists were to exist and prosper. Since this right has so long been recognized, I would follow that branch of the Spanish and Mexican law which gives the right of irrigation to the riparian owner.
The decision in Motl v. Boyd, 116 Texas 82, 286 S.W. 458 (1926) established a well recognized rule of property under which many millions of dollars have been invested in riparian lands in the lower Rio Grande Valley. That case reiterated and affirmed what had been the previous announcement of this court regarding the rights of riparian owners. With but one exception, all acts of the Legislature pertaining to riparian rights, beginning with 1889 and continuing to date, have specifically recognized and protected the rights of riparian owners.
It is a grave mistake to hold that the pronouncements in Motl v. Boyd are only obiter dicta rather than judicial dicta. This court in that case (p. 463) said that it was strongly urged on the court to deny the applicability of the doctrine of riparian rights to natural or statutory navigable streams. The Court said: “* * * This course is insisted on with so much force and so earnestly that we have concluded to investigate the whole subject for the purpose, if toe can, of ascertaining the rule applicable in this state, and of harmonizing our statutes and decision and setting at rest, in so far as toe can, the question involved.” (All emphases throughout this opinion are mine unless the contrary is shown.) Then after a thorough discussion of the writing and the authorities this court said, (p. 465) : “* * * In view of what we have cited from Hall’s Mexican Law, we believe we are clearly warranted in saying that, in so far as the Mexican law in Texas is concerned, it was one which distinctly recognized the rights of riparian owners of land,” which includes the right to irrigate their crops.
*385In discussing the Act of January 20, 1940, adopting the common law as the rule of decision, the court said, (p. 466) : “In so far as colonization grants were concerned, this act of the Republic was a distinct recognition of the laws under which the grants were made, and a declaration by the Republic of Texas that these grants and the rights thereunder would be recognized and carried forward under the laws under which they were made, included in which were, we have seen, the rights of riparian owners.”
Summarizing its holding in that cause the court says:
“* * * On the whole, we think it proper to say that from the Mexican decree of 1823 down to the passage of our appropriation act in 1889, the fixed policy of this state, under all of its several governments, that of Mexico, Coahuila and Texas, Tamaulipas, and the Republic and state of Texas, was to recognize the right of the riparian owner to use water, not only for his domestic and household use, but for irrigation as well.
“What we have thus far said has been predicated upon the history of the subject, and an interpretation of the laws, decrees, and the acts involved. The construction, however, is in harmony with the decisions of this court, which appear to us to have settled the question that riparian rights to the use of the waters of the streams of the state for irrigation purposes were a part of the grants of land when the grants were made. Watkins Land Co. v. Clements, 98 Texas 578, 86 S.W. 733, 70 L.R.A. 964, 107 Am. St. Rep. 653; Board of Water Engineers v. McKnight, 111 Texas 82, 229 S.W. 301; Martin v. Burr, 111 Texas 57, 228 S.W. 543.”
This is a clear and direct holding by this Court that riparian owners had the right to use the waters of a stream for irrigation purposes prior to the appropriation act of 1889.
The holding in Motl v. Boyd which declared that riparian owners had a vested right to use the water from the stream for irrigating their crops was recognized and affirmed in the cases of Chicago, R. I. & G. Ry. Co. v. Tarrant County Water Control & Improvement Dist. No. 1, 123 Texas 432, 73 S.W. 2d 55(9), (1934) and Heard v. State, 146 Texas 139, 204 S.W. 2d 344 (1947). Thus we see that the principle of the rights of riparian owners to use the stream waters to irrigate as set out in Motl *386v. Boyd in 1926 has been unquestioned by this Court. It has become and is a rule of property, and I wotild not overrule it.
The majority decision creates confusion and uncertainty and results in a lack of uniformity of rights as between landowners on the same stream as well as on different streams. The majority recognizes in principle the rights of riparian owners holding under common law grants to use stream waters for irrigation. Many of our longer streams in Texas have on their banks both common law and civil law grants. The rights should be the same, and by following what has been the law up to this decision these grants would continue to have and possess the same rights thus maintaining uniformity. The majority decision creates an impractical patchwork of law applicable along most of our major streams rivaling Grandma’s quilt for variety.
The most serious objection to the majority opinion is that it creates an uncertainty as to what the laws are at the present time, although prior cases have unequivocably set forth rules and principles of law. How can an attorney advise his clients with any certainty as to the client’s rights? Here the majority overthrows a solemn declaration of law set forth in clear and unambiguous language in Motl v. Boyd in 1926. What attorney can afford to advise his clients in the face of clear declarations establishing a rule of property that such declarations are not the law, but obiter dicta and not binding? The responsibility of this Court is to maintain a consistent interpretation of the law, as well as to render justice in its decisions. The confidence of the people of Texas is not to be treated lightly, nor the legal profession put in doubt as to the lasting effect of a particular holding.
This Court said in Southland Royalty Co. v. Humble Oil & Refining Co., 151 Texas 324, 249 S.W. 2d 914, 916 (1952) :
“It may be noted here that respondents suggest a re-examination of the Parker and George cases on the theory that the courts should not attribute to lessors jointly executing a general form lease, without more, an intent to pool or unitize their properties; that the language of the general form lease was never intended to effect or to operate as a pooling agreement. This argument is not entirely unappealing. The Texas rule in this respect is not of universal application. See 116 A.L.R. 1267, et seq. On the other hand, the lato of the Parker and George cases have now become a rule of property in this state and should not be changed in the absence of other controlling circumstances, even though good reasons might be *387given for a different holding.’ Tanton et ux v. State National Bank of El Paso et al., 125 Texas 16, 79 S.W. 2d 833.”
In Thomas v. Meyer, Texas Civ. App., 1932, 168 S.W. 2d 681, 685, no writ history, it is said:
“It seems more probable to assume that the holdings upon the point here involved were deliberately made for the guidance of the bench and bar upon a point of statutory construction not theretofore considered by the Supreme Court. It, therefore, seems that these holdings must at least be considered as judicial dicta rather than mere obiter. * * *”
The lower Rio Grande Valley has attained its present state of development under the rights of riparians to use the flow of that stream to irrigate their fertile fields and orchards. It should be allowed to continue to develop under such rights, subject to the recognized rights of the court to prorate the water in times of extreme drought.
I would not overthrow the accepted practices and understanding of the rights of riparian owners which have been generally accepted for nearly 200 years.
For an academic discussion on this matter see “The Texas Law of Flowing Waters with Special Reference to Irrigation from the Lower Rio Grande”, Davenport & Canales, Baylor Law Review, Vol. VIII, No. 3, p. 283; The Development of the Texas Law of Water, Vol. 21, Vernon’s Annotated Texas Civil Statutes.
I would reverse the judgment of the Court of Civil Appeals and affirm the trial court’s judgment.
Opinion delivered February 14, 1962.