SAN ANTONIO RIVER AUTHORITY, Petitioner, v. G. Garrett LEWIS et al., Respondents, 363 S.W.2d 444

CALVERT, Chief Justice. The judgment rendered herein on February 14, 1962, is set aside and the judgment of the Court of Civil Appeals is affirmed. The opinions heretofore filed herein are withdrawn and the following is now filed as the opinion of the court. This is a declaratory judgment suit. Petitioner is a governmental agency created by the Legislature pursuant to authority contained in

Section 59 of

Article 16 of the Constitution of Texas, Vernon’s Ann.St. See Art. 8280-119, Vernon’s Annotated Texas Civil Statutes. In discharge of its duty of flood control and for the protection of the lives, health and property of those living or owning property in the area, it is engaged in a project of straightening, widening and deepening the channel of the San Antonio River. By this suit it seeks a judgment declaring that it is not responsible in damages to the respondents-landowners by reason of diverting the waters of the river from their accustomed channel to a new channel some two hundred feet to the west. The trial court, by

summary judgment, did so declare. The Court of Civil Appeals at San Antonio, the Chief Justice dissenting, reversed the judgment of the trial court and remanded the case for trial of respondents’ claims for damages which are asserted by cross-action. 343 S.W.2d 475. Respondents claim certain rights to water for irrigation under grants made by the Mexican government in 1824. Their position is that these rights are vested property rights which have been taken, damaged or destroyed by the changing of the river channel and for which they are entitled to compensation under

Section 17 of

Article I of the Constitution of Texas. Petitioner’s claim to non-liability rests upon an assertion that respondents have no vested property rights which are taken, damaged or destroyed by the changing of the river channel, and that, in any event, the changing of the river channel is an exercise of the police power of the State for the consequences of which there can be no liability in damages.

The trial court was of the opinion that respondents’ “irrigation rights” are “vested property rights,” but that such rights were granted, and are held, subject to “the inherent power of the State, reasonably exercised, to protect the public health, safety and welfare without making compensation” for the taking or damaging thereof. Based upon that opinion, or conclusion, the court adjudged the taking of respondents’ rights to be damnum absque injuria.

The Court of Civil Appeals also held that respondents have certain vested property rights which are being taken, damaged or destroyed by the changing of the channel of the river, but, contrary to the declaration of the trial court, held that the fact that the river channel was being changed by petitioner in the exercise of the State’s police power did not insulate it against liability. In order to determine the rights of the parties it is necessary to summarize the material facts which appear to be without dispute.

In 1730 the Spanish government established the Mission of San Juan Capistrano on the east side of the San Antonio River, a few miles south of the original site of the present City of San Antonio. Mission personnel, no doubt with the aid of Indian labor, built an acequia or irrigation ditch on the east side of the river in 1731. Water was diverted from the river by a dam, built in the bed of the river, which raised the water level and permitted water to enter ihe ditch by gravity flow through a head-gate. Water from the river was thus made available to the mission and for irrigation of lands adjacent to the ditch.

The irrigation system is similar to others built by early Spanish settlers in and near San Antonio and El Paso. In 1824 Mexico, then an independent nation of which Texas was a part, made grants of land and of water to settlers along the San Juan ditch. One of these grants, fairly illustrative of all, is copied as a footnote to the opinion of the Court of Civil Appeals. See 343 S.W.2d 478-479.

The instrument was executed by Jose Antonio Saucedo, Gefe Politico of the Province, on February 5, 1824, and recites: “ * * * I have decided to grant him [Francisco Maynes] and I do hereby grant him in the name of the Mexican Nation, 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, so that as his own property he may cultivate and enjoy the land within the term prescribed by law; he may possess it for his own use or the use of his successors at the rental of 10 pesos annually which he must pay for the said dulas granted him for the period of four years, in accordance with the provisions of the Very Excellent Provincial Deputation.

After the four years have elapsed he may enjoy the two dulas of irrigation water, clear of all encumbrance and as such he may sell or mortgage them at his pleasure. “To this end Francisco Maynes will be placed in formal possession of the two dulas of water, and will be provided with any certified copy or copies he may request in protection of his title.” On February 7, 1824, Saucedo executed another instrument which recites: ' “I * * * went to the land which by the preceding decree I had granted to the petitioner, Bachelor Francisco Maynes, and there I measured two suertes of land with 200 varas on each frontage. * * * “I placed the petitioner, Bachelor Francisco Maynes, in real and corporal possession of the land with its accompanying irrigation water, * * On June 25, 1825, Saucedo signed a writing in which he recited: “Francisco Maynes paid 40 pesos to this government, the amount of the five pesos annual tax imposed on him for four years on each of the two dulas of irrigation water with the accompanying land which were granted to him in the labor of San Juan Mission.” The dam, headgate and ditch, although renewed and repaired from time to time, were still in existence, and in use as facilities for irrigating respondents’ lands until the river channel was changed by petitioner.

Except for destruction of the dam, none of the physical structures of the irrigation system have actually been taken, damaged or destroyed by petitioner. Petitioner has installed a pump in the new channel of the river which is being used temporarily to pump water into the irrigation ditch, without prejudice to the legal rights of the parties. To clarify the question before us it may be well to note some questions which are not here for decision. Petitioner does not deny that respondents have vested property rights to take water from the San Antonio River for irrigation; it assumes they do, and so will we.

Petitioner does not claim that diversion of the waters to a new channel is in aid of navigation. Petitioner does not not question respondents’ rights of access over its land to the new channel of the river for the purpose of obtaining the water to which they are entitled, and the trial court’s judgment confirmed, in effect, easements in respondents across lands of petitioner for the transportation of the water to the mouth of the San Juan ditch by any means which do not seriously interfere with flood control or the flood control project.

As we analyze respondents’ pleadings, they do not seek to recover damages based on the value of their lands as depreciated by loss of, or damage to, any of the physical structures composing the irrigation conduit—the ditch, the headgate and the dam; rather, they seek to recover damages based on the value of their lands as depreciated by loss of their rights to obtain the granted waters from their accustomed channel through the irrigation conduit. We will approach the problem on that basis.

Viewed in the proper factual context, the irrigation water, although to be taken from the San Juan ditch, was granted from the San Antonio River. True, as stated in the opinion of the Court of Civil Appeals, the river is not mentioned in the grants, but the river was the real source of the waters granted. The question to be decided, then, as the issue has been narrowed, is whether under the Mexican grants respondents acquired, as against the sovereign, vested property rights to have the waters of the San Antonio River continue to flow in their accustomed channel.

The question must be answered under Mexican law applicable when the grants were made. Manry v. Robison, 122 Tex. 213, 56 S.W.2d 438; Luttes v. State, 159 Tex. 500, 324 S.W.2d 167. Associate Justice Pope of the Fourth Court of Civil Appeals at San Antonio has recently written a scholarly and comprehensive analysis of the sources from which the law applicable to Spanish and Mexican grants in this state must be derived. See The State of Texas v. Valmont Plantations, Tex.Civ.App., 346 S.W.2d 853. There is no need to undertake here a second analysis, no doubt of less luster, of the same matter.

History records that the constitutional and statutory law of the Mexican nation and of its component States, like the government itself, was in an unsettled state from the date of the independence of the nation in 1821 until the promulgation of the Federal Constitution of the United Mexican States on October 4, 1824. It was during this period that the water grants to respondents’ predecessors in title were made. Research does not disclose any Mexican constitutional, code or other law which, in itself, either expressly or impliedly governs the question as it has been stated above.

In the absence of any such law it is an accepted fact that the civil law of Spain was the law of Mexico and fixed the rights of the grantees under the grants. Miller v. Letzerich, 121 Tex. 248, 49 S.W.2d 404, 85 A.L.R. 451. Hence, we must turn to the Spanish law for an answer to the question. Inasmuch as we have been cited to no Spanish law which expressly governs the question and none has been found by research, our conclusion of necessity must rest upon a process of reasoning from law which tends to shed light on it.

We begin our process of reasoning in the matter with acceptance of the fact that the decisions of this court, made only after careful analysis of Spanish law, have long since affirmed that under that law the sovereign was the owner of the beds of all perennial streams in this State, whether navigable or not, State v. Grubstake Inv. Assn., 117 Tex. 53, 297 S.W. 202; Manry v. Robison, 122 Tex. 213, 56 S.W.2d 438; Heard v. Town of Refugio, 129 Tex. 349, 103 S.W.2d 728, and that while the sovereign could, indeed, grant the beds to individuals, City of Galveston v.

Menard, 23 Tex. 349, it will not be presumed to have done so, and will not be held to have done so in the absence of direct and certain evidence that such was its intention. City of Galveston v. Menard, 23 Tex. 349; State v. Bradford, 121 Tex. 515, 50 S.W.2d 1065; Heard v. Town of Refugio, 129 Tex. 349, 103 S.W.2d 728. Acceptance of that fact may well mean that respondents did not acquire property rights in the bed of the San Antonio river.

The grants do not expressly create easements or impose servi-tudes for continued maintenance of the dam in the river bed and it may be strongly reasoned from Spanish law that none are to be implied. Law 5, Title 17, Book IV, Recopilacion de las leyes de Indias, 2 White 56; Laws 6 and 8, Title 28,

Part 3, Las Siete Partidas; Hall’s Laws of Mexico, §§ 1388, 1401, 1406;

An Act Concerning Irrigation Property, 3 Gammel’s Laws of Texas 958. Continued existence of the dam in the bed of the river appears not to have been reasonably necessary to enjoyment of the water granted from the acequia; there were other methods of capturing and delivering the water into the ditch. But whether the grants do or do not create easements or impose servitudes in the river bed is not determinative of the true question in the case, viz.: Did respondents acquire, as against the sovereign, vested property rights to have the waters of the river continue to flow in their accustomed channel? In Rhodes v.

Whitehead, 27 Tex. 304, 310, this court declared that “Aqua currit et deb-et currere lit currere solebat, is a maxim no less of the civil than the common law.” Black’s Law Dictionary translates and defines the Latin phrase Aqua currit et debet currere, ut currere solebat as follows: “Water runs and ought to run, as it has used to run. 3 Bulst. 339; 3 Kent, Comm. 439; A running stream should be left to flow in its natural channel, without alteration or diversion. A fundamental maxim in the law of watercourses.” See also Haas v. Choussard, 17 Tex. 588.

The Code law of Spain as expressed in Las Siete Partidas gives validity to our former declaration. There are express provisions in Las Siete Partidas protecting the rights of those entitled to the use of waters of streams against diversion by others of such waters from their accustomed channel. Thus it is provided in Law 13, Title 32,

Part 3, that one who “obstructs the current, or diverts the stream so that others who are accustomed to make use of it, cannot irrigate their lands by it, as they were formerly accustomed to do” shall demolish the offending structures at his own cost and expense and shall pay all damages and losses suffered by his neighbors by reason thereof. In Law 15, Title 32,

Part 3, it is provided that if a stream running through the lands of several persons becomes obstructed from natural causes “so that the channel is cut off, and the water removed from the place where it formerly flowed” the person on whose land the obstruction occurs can be compelled to “open the channel through which the water formerly ran and cause it to resume its accustomed course” or to permit the complaining party to open it. By Law 16, Title 32,

Part 3, protection is afforded a purchaser from an injured party against one who has built a structure (“anything”) on his premises “by means of which water is cut off or obstructed where it was formerly accustomed to flow,” and rights against the offender are preserved even though he has sold his land. By Law 17, Title 32,

Part 3, similar protection and separate rights to damages against multiple offenders are preserved even though he has sold his land. By Law 18, Title 32,

Part 3, it is provided that one may build a mill or a machine propelled by water power for beating cloths on his own land, “or on ground belonging to the king” with his consent, near another such mill or machine, but that the “work should, however, be performed in such a way that the course of the water will not interfere with the other mill, but that the party may freely have it as it was formerly accustomed to run.” See Scott’s Translation, Pages 871-873.

These detailed provisions of the Partidas manifest a clear purpose in the Spanish law to protect one’s right to the use of waters of a stream against diversion by others of the waters from their accustomed channel. It hardly seems reasonable to say that the sovereign reserved the right to do the very thing which the law so carefully prohibited others from doing.

Considering that respondents’ predecessors in title paid for their rights to water, which they were at liberty to sell or to mortgage at their pleasure, at a time and under circumstances when both they and the sovereign must have contemplated that the waters of the San Antonio River would continue to flow indefinitely in their accustomed channel, we are disposed to resolve any doubt of a proper answer to the question in favor of respondents.

The water rights of tlie grantees were neither riparian nor appropriative; but our holding will harmonize the rights of respondents with the rights of riparians in this area of the law, McGhee Irrigating Ditch Co. v. Hudson, 85 Tex. 587, 22 S.W. 398, 967, 22 S.W. 967, and they ought not to enjoy less. If the rights granted were to have value it was essential that the waters of the river continue to flow in their accustomed channel. The grantees knew that when they purchased their rights to water from the river and the Mexican government knew it when it sold them.

To hold that the right to change the river channel was reserved to the sovereign would be to permit the sovereign to take or to destroy, without compensation, rights which it had sold for compensation. But for consent by petitioner to the granting of an easement across its lands by judicial decree, respondents’ rights to water would have been lost entirely. What effect the granting of the easement will have on the legal measure or the recoverable amount of respondents’ damages is not in issue on this appeal.

Once we conclude, as we do, that respondents’ predecessors in title acquired vested rights to have the waters of the San Antonio River continue to flow in their accustomed channel, we must reject the idea that petitioner can take the rights without payment of compensation. By changing the channel of the river and diverting its waters petitioner is taking respondents’ property. McGhee Irrigating Ditch Co. v. Hudson, 85 Tex. 587, 22 S.W. 967, 968; Mud Creek Irr. Agr. & Mfg. Co. v. Vivian, 74 Tex. 170, 11 S.W. 1078, 1079. The provisions of

Section 17,

Article I of the Constitution of Texas applies as well to the State and its agencies as to private corporations. Similar limitations on the right of the sovereign to take private property are found in Spanish and Mexican law. In

Part II, Title 1, Law 2, of Las Siete Partidas, dealing with the power possessed by the emperor and how he should make use of the empire, it is said that the emperor has “no authority to deprive anyone of his property without his consent, unless he does something on account of which he should lose it by reason of law.

And where it happens that the emperor was compelled to take it, for the reason that he had need to make disposition of it for the common benefit of the country, he is required by law to give beforehand something in fair exchange for said property which is worth as much, or more, so that the owner is remunerated in the sight of all good men.” One of the restrictions imposed on the power of the king in

Article 172 of the Constitution of 1812 for Spain and her dominions reads: “The King can not appropriate the property of any private individual or corporation, nor disturb them in their possession, use and benefits of it; and if in some specific case it should be deemed necessary to seize the property of a private individual for a purpose of recognized public utility, it could not be effected without, at the same time, indemnifying him, by giving him a fair compensation in the good judgment of honest men (of the commun ity) in good standing.” (See Diccion-ario de la Administración Española, by M.

Martínez Alcubilla, 6th ed. Vol. IV, p. 267. Madrid, 1915, as translated by Dr. Ramon Martinez of the University of Texas faculty). Paragraph 3 of

Article 112 of the 4th

Section of the 1824 Constitution of Mexico provides (1 Gammel’s Laws of Texas 86): “The president cannot occupy the property of any individual or corporation, nor disturb them in their possession or use of the same; and if in any case it should be necessary for some object of acknowledged utility to take the property of an individual or a corporation, it cannot be done without previous approbation of the senate, and in the recess, the council of government, always indemnifying the party the value fixed by appraisers chosen by himself and the government.” In like manner the Constitution of Coahuila and Texas of 1827 imposed a restriction on the power of the governor in this language (1 Gammel’s Laws of Texas 330): “Fourth, — Take possession of the property of any private individual or corporation, or disturb him in the possession, use, or benefit thereof, unless it should be necessary for a purpose of manifest public utility in the judgment of the executive council, in which case he may do so with the concurrence of the council, and approval of congress, and during the recess, of the permanent deputation, always indemnifying the. party interested agreeably to the opinion of appraisers chosen by the executive and the said party.” A similar provision was included in the Constitution of the Republic of Texas in which it was provided (1 Gammel’s Laws of Texas 1083): “No person's particular services shall be démanded nor property taken or applied to public use, unless by the consent of himself or his representative, without just “Compensation being made therefor according to law.” Similar provisions have been included in every Constitution of the State.

It was contended in Brazos River Authority v. City of Graham, Tex.Sup., 354 S.W.2d 99, as it is here, that the property involved was being taken or destroyed in the exercise of the police power and that the taking was therefore damnum absque injuria. This court rejected the contention without attempting “a distinction between the power of eminent domain and an exercise of the police power” because it would “involve us in a sophistic Miltonian Ser-bonian Bog.” 354 S.W.2d 99, 105. We need not enlarge on what we said in that opinion.

We consider it as foreclosing the argument that respondents’ property may be taken as an incident of the exercise of the police power, without the payment of compensation. Petitioner is granted fifteen days from this date in which to file a motion for rehearing. SMITH, CULVER, NORVELL and STEAKLEY, JJ., dissenting. . “Sec. 17. No person’s property shall be taken, damaged or destroyed for or applied to public use without adequate compensation being made, unless by tbe consent of sucb person * * .

Informative discussions of these early irrigation systems and their operation and management may be found in The Spanish Element in Texas Water Law by Dob-kins; The Community Acequia: Its Origin and Development, 31 S.W. History Quarterly, by Hutchins, and in a Memorandum on The Spanish and Mexican Irrigation System prepared by the Water Division of the office of the Attorney General of Texas. . A “dula” of water was a “day” of water —one day’s flow of the water in the acequia. On this acequia, irrigation rights were based on a twenty-five day cycle. . Emphasis ours throughout unless otherwise indicated.