In re the Contests of the City of Eagle Pass

680 S.W.2d 853, 1984 Tex. App. LEXIS 6770
CourtCourt of Appeals of Texas
DecidedOctober 3, 1984
DocketNo. 13917-A
StatusPublished

This text of 680 S.W.2d 853 (In re the Contests of the City of Eagle Pass) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re the Contests of the City of Eagle Pass, 680 S.W.2d 853, 1984 Tex. App. LEXIS 6770 (Tex. Ct. App. 1984).

Opinion

SHANNON, Justice.

The City of Eagle Pass appeals from the judgment of the district court of Travis County which affirmed, in large part, the final determination by the Texas Water Rights Commission of claims of water rights in the Middle Rio Grande. This Court will affirm the judgment of the district court.

The “Middle Rio Grande” includes the Rio Grande and contributing Texas tributaries from Amistad Dam, in Val Verde County, downstream to Falcon Dam, in Starr County, and includes all or parts of [855]*855Val Verde, Kinney, Maverick, Webb, Zapata, Edwards, Dimmit, and Jim Hogg Counties. Users of state water within this area are the Cities of Laredo, Eagle Pass, and Del Rio, several smaller towns and unincorporated communities; those using water for irrigation, industrial and mining purposes; and recreational developments around Falcon Reservoir.

The standard of review under the Water Rights Adjudication Act, Tex. Water Code Ann. § 5.301 et seq. (1972) is neither a substantial evidence review nor a de novo review. Instead, it is a review made independently of the Commission’s determination. In Re Adjudication of the Water Rights of the Upper Guadalupe Segment of the Guadalupe River Basin, 642 S.W. 438 (Tex.1982).

Eagle Pass holds three certified filings which authorize it to divert water from the Rio Grande. The validity of the certified filings is not disputed, but, instead, at contest is the extent to which two of the certified filings have been perfected. Eagle Pass insists that the district court erred in determining that the City was entitled to a lesser amount of water than the amount claimed by it.

The City’s certified filings are Nos. 454, 522 and 540. The City contended that its certified filings should be recognized as perfected to the following extent:

Certified Filing No. 454 - 571 acre-feet of water per annum
Certified Filing No. 522 - 6000 acre-feet of water per annum
Certified Filing No. 540 — 1680 acre-feet of water per annum
TOTAL 8251 acre-feet of water per annum

The district court, however, affirmed the Commission's recognition of Eagle Pass’ certified filings as having been perfected only in the following amounts:

Certified Filing No. 454 — 282 acre-feet of water per annum
Certified Filing No. 522 - 3600 acre-feet of water per annum
Certified Filing No. 540 - 1680 acre-feet of water per annum
TOTAL 5562 acre-feet of water per annum

Because the district court’s judgment affirmed the Commission’s order recognizing certified filing no. 540 to the full extent claimed, naturally Eagle Pass does not complain of that part of the judgment. The City does complain, however, of the judgment in fixing the amount of acre-feet of water per annum for certified filing nos. 454 and 522.

By three points of error Eagle Pass attacks that part of the judgment affirming the Commission’s determination that by certified filing no. 454 the City was entitled to divert 282 acre-feet of water per annum. In 1914 Eliza K. Dolch and others filed certified filing no. 454 for irrigation of 571 acres in Maverick County at a diversion rate of twenty cubic feet per second (cfs). Later in the same year, the parties filed their statement of work done indicating 376 acres were ready for irrigation and water was being diverted at fifteen cfs for 150 days.

More than forty years later Eagle Pass purchased a part of certified filing no. 454 from W.M. Stafford, the then holder of the filing. In such transaction Stafford conveyed five cfs to Eagle Pass out of his rights under certified filing no. 454. In 1961, upon written request by Stafford, the Commission’s predecessor agency cancelled certified filing no. 454 in its entirety because of voluntary abandonment. At the time of the cancellation proceeding, the agency had no knowledge that Stafford had conveyed any interest in the certified filing to Eagle Pass. The agency, being unaware of the City’s interest, did not notify the City of the cancellation proceedings and, as a result, the City had no knowledge [856]*856of the order cancelling the certified filing. In 1963, when the agency learned that Eagle Pass held an interest in certified filing no. 454, the agency reinstated certified filing no. 454 to the extent of 282 acre-feet in the name of Eagle Pass.

Eagle Pass argues that the Commission’s predecessor impermissibly adjudicated its water rights under certified filing no. 454 in the 1963 order. Although the agency’s order, in determining the amount of acre-feet due Eagle Pass, was probably erroneous, Nueces Co. Water C. & I. Dist. v. Texas Water Rights Com’n., 481 S.W.2d 924 (Tex.Civ.App.1972, writ ref’d n.r.e.), the error in the order could have been corrected on appeal. Eagle Pass, however, did not appeal from the agency’s 1963 order determining its rights under certified filing no. 454 and, instead, permitted that order to become final.

The 1963 order has been long final and is now binding on Eagle Pass as fully and as completely as a judgment of a court of competent jurisdiction. As such, the agency order is not subject to collateral attack by the City. Corzelius v. Harrell, 143 Tex. 509, 186 S.W.2d 961, 967 (1945); Combs v. State, 526 S.W.2d 648, 649 (Tex.Civ.App.1975, writ ref’d n.r.e.). The City’s points of error complaining of certified filing no. 454 are overruled.

By two points of error Eagle Pass asserts that the district court erred in failing to conclude as a matter of law that the City had the right under certified filing no. 522 to divert 6000 acre-feet of water per annum from the Rio Grande. The district court declared that it was impossible to determine from the evidence the precise amount of water used pursuant to certified filing no. 522. The district court observed, however, that the water use reports and other evidence indicated a use far less than 6000 acre-feet.

The Eagle Pass Irrigation Company filed certified filing no. 522 in 1914 and declared its intention to irrigate 1200 acres. It is undisputed that irrigation facilities were in place and that a quantity of land was being irrigated at the time of the 1914 filing. Eagle Pass insists that all of the evidence was that the full 1200 acres was being irrigated at five acre-feet per acre per an-num.

In support of such assertion, Eagle Pass relies upon the testimony of two life-time residents of Maverick County, Fred Wey-rich and Clarence G. Herring. They testified that a vegetable crop was raised on the tract in the winter and a grain or hay crop was grown in the summer. The summer crops required a greater amount of irrigation water. They testified that the frequency of irrigation depended upon the crop grown. Both witnesses indicated, however, that the composition of the soil varied over the 1200 acre tract, requiring more water near the river and less water away from the river.

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Related

Combs v. State
526 S.W.2d 648 (Court of Appeals of Texas, 1975)
Texas Water Rights Commission v. Wright
464 S.W.2d 642 (Texas Supreme Court, 1971)
Corzelius v. Harrell
186 S.W.2d 961 (Texas Supreme Court, 1945)
Farmers Highline Canal & Reservoir Co. v. City of Golden
272 P.2d 629 (Supreme Court of Colorado, 1954)
Enterprise Irrigation District v. Willis
284 N.W. 326 (Nebraska Supreme Court, 1939)

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680 S.W.2d 853, 1984 Tex. App. LEXIS 6770, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-contests-of-the-city-of-eagle-pass-texapp-1984.