The only question presented on this appeal to which I *Page 668 care to refer arises on the sustained exception of appellee, Ward County irrigation district No. 1, and is to the effect that appellant bases its cause of action upon the ownership of riparian lands, and which ownership of the riparian lands is shown by the petition to be vested in the owners of the said lands, and not in plaintiff, the petition not alleging that the plaintiff is the owner of the riparian lands or riparian rights, and for that reason plaintiff shows no interest or right in itself to the land or water that it can assert against Ward County irrigation district No. 1. I am not sure that the case of Irrigation Co. v. Vivian,74 Tex. 174, 11 S.W. 1078, referred to in the majority opinion, has the same application here as applied to the facts of that case.
Appellant is a water improvement district established by the commissioners' court of Ward county under chapter 87, General Laws 35th Leg., and by section 24 of the act authorized to do the things specified, and later herein more specifically stated, and issue bonds. While a corporation, authorized to sue and be sued, it is not a body created for profit, but one organized and established more as a political subdivision of the state, and having for its object the administration of the affairs of the water district in the management and ownership of rights to the use of water in the hands of those most interested in its intelligent and economic use, and to provide a method for acquiring the financial means for constructing a system of works necessary for the appropriation, distribution, and use of water, and incidentally to get from under the necessity of private corporations organized for the purpose of profit, and to enable the water consumers in the district to obtain water for their lands at first cost through the means of their own district organization. It is not my intention to write a discussion on the district policy or means of providing for the economic distribution of water in the arid portion of the state, but simply to make an observation on the water district system as provided, from my viewpoint, on the issue presented. I am under the impression that the case of Mud Creek I. A. M. Co. v. Vivian et al., referred to in the majority opinion, is not exactly in point and decisive of the one question presented here. There the corporation was organized for profit, and not for administrative purposes. In that case Judge Gaines makes the observation that the action is based in part upon the theory that the charter of the company by designation of the locality of the canal gave it the exclusive right to the water for irrigation purposes in the locality, and held that the franchise gave the company the right to acquire such property as was necessary or proper to carry out the object of its creation, but did not confer the privileges themselves. There being no allegation that the company had acquired any interest in or right to use the waters of Mud creek, the exception was sustained. That opinion was delivered May 28, 1889. At that time we had no state law providing for the use of waters in the streams of the state other than the act of March 10, 1875 (Acts 2d Sess., 14th Leg. c. 63), which provided that any canal company could have the free use of the waters and streams of the state. At that time we had no statutory or other provision declaring the unowned and unappropriated waters of the ordinary flow of every flowing river or natural stream, and the storm, flood, and rain waters of every natural stream within the state, to be the property of the state, and that the right to the use of such waters might be acquired by appropriation for beneficial uses. Now, by edict of legislation, all such waters, and in fact all waters except the ordinary flow and underflow, may be acquired by appropriation, diverted and so used, except the ordinary flow and underflow of such waters as have become vested rights of riparian landowners. If our statutes are to be construed to mean that the riparian right to water and the right to appropriate and divert waters for purposes of irrigation runs only with the title or possessory rights to land, then, of course, to assert such rights it would be necessary for a private corporation organized for profit, and where the fee in lands are owned and taken in the name of a corporate body, to allege ownership or possessory right to land to which the rights would be appurtenant or allege that such rights had been acquired. The petition here does not assert ownership or possessory right to the lands mentioned to be in the corporate water district. Here, while the water district when established represents the combined interests of all of the lands in the district for purposes for which the district was established, it does not own the fee in the lands to be served with water, nor does it own the water rights appurtenant to such lands, nor does the petition allege the lands or water rights have been acquired by purchase or condemnation from the landowners.
The gist of the action being to adjudicate the respective rights of the landowners to the water in the two water districts, the question then presented by the sustained exception is: Does the corporation water district in the suit brought represent the real parties at interest? A brief review of the history and growth of water districts, culminating in several states in what are now corporation water districts, will possibly disclose more pointedly, as I conceive it, the point at issue presented by the exception. It is a general rule that the real parties at interest must be made parties to a suit otherwise the interest not brought into the suit will not be committed by the results reached. *Page 669 The contention made by the exception in the case at bar is that the suit cannot be sustained by the corporation water district without joining in the suit the landowners, for the reason that the corporation water district is not the real parties at interest, and that the real or main questions involved cannot, for that reason, be determined in a trial on the merits.
The community irrigating ditch or ascequia for the purpose of supplying water to lands is an institution peculiar to the people living in that portion of the Southwest where irrigation is necessary or beneficial in the cultivation of lands for agricultural purposes. In arid regions early settlements were made along the banks of streams where water was reasonably certain to be available for irrigation at needed times. When a settlement was established the people by their joint effort would construct an irrigation canal or ditch sufficiently large to convey water to their several lands for the irrigation of crops. Each individual owned and cultivated a specific tract of land, and from the main canal or ditch laterals were run to these various tracts of land to be watered. The distribution of the water and the repair of the main canal or ditch was in charge of a major-domo or officer elected by the water users under the canal. The official would require the water users to contribute labor toward the repair of the ditch and its maintenance, and also make an equitable distribution of water to the various water users in proportion to the land to be irrigated. There the water official was and has always been held to be but the agent of the individual owners of the lands under the ditch. The water users under the community system had no right to any specific water in the stream, but a right of use of the water for the purpose stated, a species of tenants in common, each having a common interest in the flow of the water by reason of the community of labor furnished. The fact that such water was diverted into a ditch common to all water users, and owned in common with other water users, did not give such other users any interest in, or control over, the right to take water from the stream which each individual water user possessed by reason of his ownership of his land. Such water right was appurtenant to the land he owned. That right was a several right, and the officer of the water community, in diverting the water, acted only as the agent of the water user. The act of the Thirty-Fifth Legislature, as we view it, is the outgrowth or development of the old water community system. It does not disturb or destroy individual ownership of the lands in the water districts into which they are incorporated, nor give to the incorporated water district the power to take away from the individual landowner the land or water owned by him. The act is administrative only, and for convenience gives a legal status to such organizations, in order to facilitate the distribution of the water and the establishment and maintenance of the canals. It does not attempt to interfere with the rights theretofore owned by the individual incorporators. It gives the right to the corporation to acquire water rights, but does no more, except as to the operation of the water system. If my interpretation of the act is sound, and the right, as expressed in the twenty-fourth section of the act, is to own and construct reservoirs, dams, wells, canals, etc., and to acquire the necessary right of way for and buy or construct all reservoirs, dams, etc., and other improvements required for the irrigation of the lands in such district by gift, grant, purchase, or condemnation, and it may acquire the title to any and all lands necessary or incident to the successful operation thereof, including the authority by purchase or condemnation to acquire rights of way for the enlargement, extension, or improvement of existing canals for the purpose of using such canals and ditches jointly with the owners thereof, it necessarily follows, it seems to me, that the individual landowner in the water district is a proper and necessary party in an action for an adjudication of water rights, where such rights are exercised through a corporation water district. The individual rights of the several landowners cannot be adjudicated in an action to which they are not parties. It is also my individual view that the corporations created under the act solely for administrative purposes can sue and be sued only where the gist of the action has reference to matters concerning the administration of the water district affairs, and not where the action involves the individual water rights of the participants under the water district. Acequia Del Llano v. Acequia Del Llano Frio (N.M.) 179 P. 235.
For the reasons stated, I concur in the result reached by the majority opinion. *Page 670