The McGhee Irrigation Ditch Company v. A. W. Hudson et al., 85 Tex. 587

STAYTON, Chief Justice. The case made by the petition of defendants in error is, that plaintiff in error was prosecuting proceedings to condemn so much of their land as was necessary for the construction of a dam across the Concho River and the opening of a ditch, all to be used for irri gation purposes; but that before these proceedings were consummated plaintiff in error had entered upon the land, and had erected the dam, and was engaged in opening the ditch.

The petition also developed the fact that an award had been made by a jury appointed for that purpose, but it is not made clear whether the intention was to aver that no decree had been entered on the award, or whether, after this was done, plaintiffs had prosecuted an appeal from that decree, which was pending when this suit was instituted. Plaintiffs asked a perpetual injunction, but made no averment that facts did not exist which, under the law, would entitle defendant to condemn so much of the land as was necessary for its use.

The answer showed, that the defendant was a corporation, chartered under the general law, for irrigation purposes, and that it had taken the steps necessary under the law to condemn the land, which resulted in an award of damages, which had been complied with by a deposit of the sum awarded before entering upon the land, and the sum awarded was tendered. The answer claimed the right to use the land by reason of these facts. By a supplemental petition, plaintiffs denied the sufficiency of the proceedings to condemn the land, and called in question the validity of the statute on which the proceeding was based.

A temporary injunction was awarded, and on hearing this was perpetuated.

The case was tried without a jury, on an agreed statement, which .showed the incorporation of the defendant company for irrigation purposes, and that “proceedings were and are pending in County Court, Sterling County, case number 1, whereby and wherein defendant irrigation company was and is attempting to have the land occupied and used by said ditch condemned under their chartered rights as provided in cases of railways.” Neither the answer nor the agreed statement of facts showed that the land was “within the arid portion of the State of Texas;” nor does the record show on what ground the injunction was perpetuated.

The case was briefed mainly on the theory that the trial court held the act under which condemnation was sought invalid, because it did not declare what part of the territory of the State should be subject to its operation. The first

section of the act, which authorizes the condemnation of land for irrigation purposes, and provides the method in which this may be done, is as follows: “ Be it enacted by the Legislature of the State of Texas: That the unappropriated waters of every river or natural stream within the arid portions of the State of Texas, in which, by reason of the insufficient rainfall, irrigation is necessary for agricultural purposes, may be diverted from its natural channel for irrigation, domestic, and other beneficial uses; provided, that said water shall not be diverted so as to deprive any person who claims, owns, or holds a primary right or title to any land lying along the bank or margin of any river or natural stream of the use of the water thereof for his own domestic use.” Gen.

Laws, 1889, p. 100. The Court of Civil Appeals held, that the act was not inoperative because of its failure to designate the territory which should be deemed the “ arid portion of the State of Texas;” that this would have probably been impracticable; but that lands in that part of the State where rainfall was insufficient for agricultural purposes, and irrigation therefore necessary, should be deemed lands to which the act applied; that this was a question of fact, to be determined as any other fact.

We concur in the opinion of that court in so far, and in the reasoning on which the court reached that conclusion.

We concur in the further holding of that court, to the effect that courts had not judicial knowledge of what territory was or might be embraced within the words “ the arid portion of the State of Texas;” and that in cases in which corporations may wish to condemn lands under the act, it will be necessary for them to prove that in the particular territory, “by reason of the insufficient rainfall, irrigation is necessary for agricultural purposes.” There was neither proof nor averment of that fact by either party, nor was it denied that such was the character of the country in which the land is situated; and were this a proceeding to condemn the land, the absence of such proof would be fatal to the right to condemn.

The agreed facts show that the steps taken to condemn were such as the statute prescribes, and the question arises, whether the Court of Civil Appeals was correct in holding that the judgment perpetuating the injunction ought to be affirmed, because “ the defendant did not plead that the stream was in an arid portion of the State, where the rainfall was insufficient, and that irrigation was necessary for agricultural purposes.” It must be conceded, that under the pleadings and agreed facts, plaintiffs were entitled to a temporary injunction, restraining the defendant from using the land prior to such time as it might acquire the right through condemnation; but neither the pleadings of the plaintiffs nor the agreed facts showed a case in Which a perpetual injunction should be granted, whereby the defendant could be deprived of the right for all time to come, through proceeding then pending, to acquire right to use the land for the purposes proposed.

Plaintiffs were seeking affirmative relief, and the burden was upon them to show, by pleading and proof, that they were entitled to a perpetual injunction. This they did not in either manner, and it was error, fundamental in character, to grant a perpetual injunction under such circumstances; and for this reason the judgment of the District Court will; be reversed and the cause remanded. Reversed and remanded. Delivered May 18, 1893.