*1 reject conten appellant’s We also prosecution prohibited

tion that the defense interviewing witnesses to be

counsel from v. Gregory rebuttal. He cites

called on States, (D.C.Cir.1966) 369 F.2d 185

United his this action support assertion that

deprived impartial him of a fair and trial. State, (Tex.

In v. Florio 532 S.W.2d Ap

Cr.App.1976), the Court Criminal

peals rejected Gregory case specifically record Additionally,

as authoritative. not reflect act on the

does investi to obstruct defense counsel’s without merit.

gation. This contention is judgment is affirmed. RIVER

LOWER COLORADO AUTHORI-

TY, al., Appellants, et

TEXAS DEPARTMENT WATER OF

RESOURCES, al., Appellee. et

No. 13295. Texas, Appeals

Court of

Austin.

June 1982.

Rehearing Sept. Denied

559 *3 Elkins, Nevóla, Fred

Roger P. Vinson & Werkenthin, Small, Werken- Craig, & B. Small, thin, Smith, Craig & Lawrence S. Werkenthin, Austin, appellants. Booth, Booth, Lloyd R. & Sim- Frank mons, Austin, appellees.

POWERS, Justice. granted Water

The Texas Commission Municipal application Colorado River to con- seeking Water District approxi- struct dam on the Colorado River Ballinger, Tex- mately 24 miles southeast of the Commis- permit, as. The embodied in order, sion’s final licenses the district 554,340 impound acre feet licens- proposed of the dam and also means 113,000 to use acre feet of es the district annum, 88,000 as acre per follows: municipal and per feet of water annum for 25,000 acre feet purposes; domestic evaporative per annum for forced power plant in a cooling operation be con- generating steam electric station to adjacent structed the reservoir. following granted Commission it, hearings before conducted under lengthy provisions various the Texas Code.1 proceedings will Ann. a contested We refer to the Texas Water Code were conducted as (1972 1982) Supp. “the art. 6252 & and refer to under Tex.Rev.Civ.Stat.Ann. Code” case 13a, simply of the Procedure various sections Code the Texas Administrative (APTRA). designated Register section numbers in the Code. and Texas Act appeared in

Appellants2 proceedings in their certified or the before the and opposed by law authorized of their obtained, granting permit. They in a riparian right. agree We appellees’ district County, judicial court of Travis re- meaning, applied by which was also that issuing view of the Commission’s action the Commission and the trial court. permit. having The district court af- having The Commission concluded in its order, appel- firmed the Commission’s final order water” was lants have We will appealed to this Court. river, we available must assume that affirm judgment. the district court’s meaning given it intended the that statuto- Appellants bring points er- numerous ry discussing term Before Code. ror, majority depend upon of which meaning, point we out that the record premise that final Commission’s order agency proceedings reveals that rests erroneous definition law, Commission’s conclusion relative to *4 water,” “unappropriated term as that term water,” the availability “unappropriated 11.134(b)(2) used That Code. upon large rests a amount of technical and provides section the Commission showing usage other evidence the historical grant to use if State of water taken from the river and the an- “unappropriated water is available water, ticipated usage taking of such into ” supply Appellants assign source of .. .. is, usage account numerous variables. Past to the term “unappropriated water” the course, an indication of the re- quantity following meaning: quantity It is that quired necessity by per- economic those volume of water found in the Colorado Riv- sons who have taken water from the river er in excess of the sum the quanti- total of years right; over the under a claim of if ties designated filings in all certified large used, quantities have in fact not been permits river, applicable to the to the ex- though permits perhaps their entitled them filings tent such permits have not been larger quantity, quantities cancelled in statutory proceedings brought water have flowed unused into the Gulf of by Department the Texas of Water Re- Mexico, use strong that is evidence that its sources, as authorized in 11.171-11.186 §§ Moreover, necessary. was economically not Relying the Code. on the fact that quantities reasonably required filings uncaneelled permits and certified ex- future, by those users authorized hibit, total, or volume quantity purposes, may validly upon be based esti- in excess of the amount of water river, supported by mates evidence adduced in the found in appellants contend that agency proceedings; there was no such estimates of fu- unappropriated water availa- ble in the source of and that ture circumstances are often made in simi- Commission therefore in issuing erred agency lar administrative proceedings. permit. evidence, upon tending Based to show water, past anticipated usage Appellees reply meaning that the correct unappropriat- Commission found sufficient assigned the term “unappropriated ed water available to allow the district’s water” is this: It quantity is that or volume 554,340 impoundment acre feet of water of water available in the Colorado River quantity and its use of a excess from time to time over and above the 113,000 annually, acre feet of water requirements amount to meet the indicated above. The purposes of downstream holders of valid and subsist- water, ing water when rights, upon within the limits of eco- conditioned releases of necessity, nomic for the authorized downstream necessary, to meet the needs of Appellants irrigation corporations organized are the Lower Colorado River Au- thority, a conservation and reclamation district laws of the State of Texas. by legislature, created Appellees Municipal River Colorado C.S., 19; Irrigation 4th and Garwood Department of Water District the Texas Company Irrigation Company, and Lakeside Resources.

5fi1 argue superior Appellants to those of water. in truth for an holders of water district, right below.3 anomaly appropriative as will be discussed based —an upon of water but its non-use. use assign to meaning appellants contrast, appel- meaning assigned by In is, term water” in our “unappropriated water” “unappropriated lees to the term view, very nature of the contrary to comports statutory principle with the appropriative right evidenced ap- “beneficial use” and the nature of the advanced the certified right always to water which has propriative argument as a basis for the by them created, right governed defined and been rights to a total they represent quantity of expression presently statutes find of that found in the excess river. pro- in the Code. A discussion of the Code is, particular, contrary principle reveal this to be the case. visions will through- use” of water found “beneficial Code, important Generally speaking, ownership out the limitation necessity principle of economic which that most of the water in the is claimed State places upon private of water to which and is not own- State may acquire one a vested ership. Historically, legal right years three actual use water consisted in State’s discussion, 3. From our it will be seen that the actual interference with reasonable uses of the meaning, term water” has a does not occur. respect quantity, to water practical which combines intrude into the Some considerations legal meaning fact and law. The legal neatly Boyd, the term is division drawn in Motl v. so *5 proper interpretation ascertained from a portion supra, between that of a stream’s water quantity may Code: In what of water one ac- riparians ap and that available available to quire legal right under the Code a to use State charged propriators. the “line of provided by water? The answer the Code calls highest ordinary impossible flow” is to draw. inquiry: may acquire forth a factual One a Hildebrand, Rights Riparian at The Owners legal right only in that of water which Texas, 19, Law in 6 Texas L.Rev. 29 Common (1928). actually three-year period he has used for a present Before the enactment of Code necessities, meet his economic under a rights provisions, riparian were limited to granted by purpose speci- and State for a required for household and livestock fied therein. needs, dispute prevailed and an enormous as to legal meaning “unappro- While the of the term right whether included the to water for priated may easily water” rather be extracted held, irrigation, being example, in for Val by statutory interpretation, from the Code in- State, 381, mont Plantations v. 163 Tex. 355 deed, by plain reading, meaning a is incom- (1961) Spanish S.W.2d 502 and Mexican plete finding upon a without factual his- based grants along the Rio Grande did not have the fact, only appropriators torical as to but irrigation pur appurtenant right of riparians also as to and the water to which poses, specific grant right. a of that absent respective rights apply their uses See, Wilson, White & The Flow and Underflow Moreover, put. which it future circum- Problem, Boyd: 1 of Motl v. The 9 Sw. L.J. stances become relevant as well statutory provision of the because Wilson, (1955); White & The Flow and Under “preferences” prior- Conclusion, Boyd: The 9 Sw. flow Motl v. ities. (1955). rights riparians, L.J. 377 The as well 82, Boyd, In Motl v. 116 Tex. 458 286 S.W. frequently appropriators, must be satisfied (1926), riparian rights the Court held that ex- may, which in normal from watercourses times, ordinary tended flow and underflow little, very any, if water. In such contain particular upper of water in a stream. The watercourses, practically all of the water ordinary limit flow was set at the “line of appropriation under the divi be available for flow,” ordinary highest any water in the stream Boyd, promulgated supra. As sion in Motl v. being regarded above line as “flood present opinion, mentioned in the text of the highest ordinary waters.” The “line of flow” protects final order the sen Commission’s was defined as the line to which stream waters reach and are maintained for sufficient time to rights ior claims of all holders of water case, express provision. present In become characteristic while stream waters are basically within the issues are determinable condition, ordinary in their and normal uninflu- rights. generally, See context of enced recent rainfall or surface run-off. In Trelease, Riparian Appro- Coordination Boyd, Motl v. the Court stated in dictum that (1954); priative Rights, 33 Texas L.Rev. 38 highest ordinary water above the “line of flow” Comment, in Texas Stream Stale Claims appropriators is available to to the extent that Waters, (1950). L.Rev. 938 28 Texas riparian rights, amounting a violation of to an XVI, 59(a); (1) belong- Boyd, of use art. Motl v. 116 Tex. categories: right two owners, formerly ex- ing riparian which (1926); Texas Water S.W. quantities tended to reasonable Rights Wright, 464 Commission v. S.W.2d upon taken from the watercourse (Tex.1971). duty permeates This right of other lay; (2) their lands governs the State’s administration of the irrespective ownership, to persons, of land rights obligations fabric of rela- whole acquire right use water found take and rights usage to water in our tive and water Hutchins, Texas in watercourse. W. State. Rights, (1961). The Law of Water 101-2 elements, The inherent charac- aspects, or riparian owners are derived to use appropriative right teristics of recognized common law and were first importantly the State’s bear most Choussard, in Texas in 1856. Haas case, “unap- the term (1856). persons The right Tex. 588 of other legal water” its correct propriated finds to take and use which is called an meaning therein. The first characteristic been a “appropriative right,” always appropriative right, whether evi- statute, in the stat- originating creature of filing by permit,4 a certified denced scarcity utes of Western states where water possesses merely holder a usu- is that the imprudent made the common rule law is, right, use a fructuary right public policy dictated the more practical particular part of water. Texas decision that the available supra. Rights Wright, Commissionv. be devoted to the and best use for highest right may only by granted the benefit of the number of maximum State, authorization, pursuant statutory persons, hence the “beneficial use.” term using is limited to Clark, Rights E. Waters 4.1 and Water more of specific for one or (1967). 1889the promulgated Texas first e.g., authorized statute. See embodying statutes this doctrine. Moreover, purposes, among the authorized 100. The common preference there is a order of was never riparian rights law doctrine of legislature’s reflecting the evaluation however, currently our law repudiated, authoriz- importance relative of the various doctrines, though ripari- recognizes both *6 may water be purposes ed to which State severely circum- rights an doctrine has been put. 11.024. See 11.001, § 11.- by e.g., scribed statute. See §§ -11.324; Hutchins, 101-62. supra 303 limitation Unlike reasonable applies now 11.303 the Code Section own- formerly riparian in the which inhered riparian rights appropriative adjoining to use from an right er’s water waste.” of “beneficial use without principle stream, right holder of appropriative an or volume quantity limited to the exact is ownership

The State’s State in or certified is water stated his public a water is trust and appropriative But the of an duty filing. under a constitutional to conserve holder limit, Tex.Const., specific quantitative precious right, water as a resource. within express early statutory provisions providing limitation Act first an 4. Under The 1913 made acquisition appropriative rights, appropriative right to the volume for the used, imposed required beneficially was claim in but it also claimant to record his water occurred, filings previously county upon requirement in where the diversion may an being required be found as recorded. Beneficial use implied addition to to make use of the 1, 88, Tex.Gen.Laws, See §§ limitation in statutes. earlier so diverted. ch. water 1889 1, 8, 3, 4, 2, Tex.Gen.Laws, 21, Act and §§ 3 and 12 of 1889 6 9. §§ ch. §§ Subsequently, existing doctrine of benefi required and 13 of the 1895 Act. The were claims quantity may also cial use be viewed newly-created with the Board of Water be filed right appropriative inherent filing limitation Engineers provision for the was made system. Rights Texas Water applications and the issuance of County Improvement Wright, supra; Ward evidencing rights. new County Irrigation Dis No. 3 v. Ward District 15 38. §§ (1927). S.W. 917 trict No. Tex. forth, well, simply competing rights calls where is limited another way affected, or administrative de- respect quantity to the volume of water conflict or are is, may which he take and use. That the contested case context terminations in quanti- right holder of the is limited to that of APTRA. ty “beneficially or which can volume any appropriate right specified” per- his used for the per and not water is inchoate quantity of Indeed, added). (emphasis mit. 11.025 § has been benefi fected “unless principle prevails of beneficial use origi purpose cially used for a stated throughout part of the which Code appropriate nal of intention declaration creates, governs appropria- limits by issued water or stated tive to use State water. or one of its Resources Commission] [Water “ ‘Beneficial use’ means use However, predecessors.” 11.026. § economically amount water which is nec- defined and appropriator When an [as [Chapter essary purpose by authorized a source of by 11.002(7)] limited § 11 of Code], when intelli- reasonable .. has . for a supply used

gence and used in diligence reasonable are acquires title to period years, of three he applying purpose.” the water to that against his limitation appropriation Hence, 11.002(5) added). (emphasis § from same any other claimant of water quantity water the use which exceeds against any source of the quantity beneficially used on same source of riparian owner appropriated.” is “considered 11.025 § supply. (emphasis added). That say, is to ex- 11.029. cess over economically and above what is words, never at all of a appropriated grant but In other license and, returned, was taken if not used unlaw- appropri- permit by the [Commission] fully. This interpretation given further rights, and nobody’s ate water concludes provision force that one aggrieved all who think economic criminal propriator” ing a It should criminal Therefore, who takes necessity. fact, acquire is, use the water for a beneficial the quantity provision statute, necessity go the holder of an without 11.002(7). legal right, in excess under a to a greater does of the Code. dictated saying extent that so in Moreover, of that violation of a violation of a appropriative required quantity. economic one one tak- he an may, “ap- use, phasis Motl v. party license, suit ing water thereunder. Permit come action have 3 utory conditions. ^[******] against added). Boyd, appropriator the license synonymous means supra, *7 Thus, years permittee no more 286 S.W. a within permit the state with leave or than which to file at 475 person is no more stat- (em tak- be- right acquire than of a to another evidence right only quanti- is to exact limited not the right, quantity to use right the whatever ty filing or in or volume stated the certified a may require for benefi is water the holder permit right, evidences but also his Although use. at 475. a matured cial Id. limited to which is quantity the or volume right, is a appropriative right is a vested it economically necessary for non-wasteful quan- right stated in latter limited to beneficial and permit. his That this v. must Water Commission tity only Rights an does uses. Texas approximation limitation; destroy Wright, the force of it supra.5 said, permit Assuming, as court a The of a in Motl v. holder was said 474-475. license, Boyd, supra, perti- “(p)ermit synonymous possess or with leave to a is license party nent statutes were said to administra- than that the be “mere means no more statutes, by granted appropriator tive which a or license to an license is of the state become refused, statutory nothing adjudicated.” (emphasis 286 at conditions” S.W. of water does, chooses, it right partment if ever to initiate perfected may Once the is it be lost for by wilful abandonment three seeking to cancel proceedings pertinent cases, years. successive 11.030. In such § of ten permit years on the basis non-use. right “the to use the is forfeited and forfeiture, statutory provision The set is to again appropria 11.030, originated forth in in 1913. 1913 § Id. Whether not, tion.” perfected 49, at 370. The § right lost cancellation of the provision for is available to the forfeiture holder’s permit, “in whole or in for 10 as junior appropriative right holder of a years ...,” a statutory nonuse as result of of a against appropriative the holder senior proceedings Department instituted Arnett, City of e.g., Anson v. right. See However, of Water 11.172. Resources. § (Tex.Civ.App. S.W.2d — Eastland Department’s failure to institute such Lower Nueces River n.r.e.); writ ref’d proceedings, per aimed at cancellation of a v. Supply Cartwright, Water District mit, right which it to make allows (Tex.Civ.App. Antonio S.W.2d — San use of “does not State validate or n.r.e.); City Corpus writ ref’d improve any permit, the status & County Water Christi v. Nueces Control filing adjudication, certificate in District, Improvement (Tex. 540 S.W.2d 357 Hence, part.” whole or in if an Christi, 1976, writ Civ.App. Corpus ref’d right has been forfeited as a — n.r.e.). statutory proceeding cancel abandonment, result of years three wilful it is not preserved such time as the instituted permit, until De- in an action added), theory contrary legal consequence Such a what is is the constitutional permit actually using statutory pre- duty holder’s less than the Commission to quantity permit? waste, of water authorized his vent water is available in to the extent source meet the unused difference has, permit It is evident that holder but is allowed flow unused to the Gulf case, acquired right a difference; no vested the unused Moreover, Mexico. the decision in Texas appropriation actual or use is re Rights Wright, supra, quired Commission perfect appropriative right and all impliedly theory, rejects the court said beneficially purpose speci water not used for a actually appropri- that it water is permit when appropriat fied in the is considered not availability 11.025,11.026,11.029. ated that its reduced or defeated ed at all. §§ For exam ple, Co., permit Irrigation holders never vested with the Clark v. Briscoe right peri- (Tex.Civ.App. S.W.2d 674 of non-use of water for an indefinite no — Austin writ), opinion points permit out that a od of time. 464 at 647-648. Since hold S.W.2d 75,000 actually appropriated er who was to take authorized acre-feet water not all, used is not per acquired right length annum no vested as discussed at the text of this 25,000 opinion, properly which the acre feet allowed included the but which he in fact take category did not and use for “unappro- unused difference in purpose permit. specified in his priated consideration of dis- water” Nevertheless, cancelled, until it re- application. trict’s evidencing mains a license the holder’s pointed Boyd, supra, As out in Motl v. the term pre- divert and use water. The holder is water,” “unappropriated is not defined in the sumably quan- free at to increase the time dealt in relevant statutes. The court that case tity of water which he diverts and uses benefi- “unappropriated water” as the term cially, up quantity to the maximum allowed qualify was used to definition permit, his and the increased becomes State water. court concluded that right, good against

the measure of his term water” included so much good against State under 11.026 and com- riparian waters “as are peting claimants under 11.029 after three uses,” clearly tying “unappro- the definition of years Therefore, of use. the issue reduces to priated required water” to the excess water not whether the holder insist that the viewed as vested water serve what was then Commission, by denying permits, keep *8 new rights. by analogy, We have done same open opportunity and free from hindrance his treating water” as term usage up to increase his beneficial meaning quantity of water in a source of by permit, maximum allowed his at least until necessary which is not to serve the Department such time as the initiates formal rights, downstream of vested water holders does, proceedings, cancellation if it ever based riparian appropriative origin. whether in or upon years nothing ten We find in nonuse. protect purports statutes which so to the hold- permit. er of a

565 pursue con- timely to commence and State, failed first authorized 352, at 867. consti- necessary The to specified works struction of provision was tutionality the cancellation Tex.Gen.Laws, ch. the water. divert Rights Commis- affirmed in Texas Water 367; Tex.Gen.Laws, ch. 171, 38, at § decision, the Wright, supra. sion v. In that 7, at 212-3. § a right as appropriative court described the right held a condition sub- usufructuary on being In addition limited to be benefi- the water would sequent —that appropriative of water to which an proceeding used. The cancellation cially by beneficial right perfected is, presuma- non-use upon years’ founded use, of the actual nature re-entry by the act of bly, analogous an important characteristic has another right title, State, paramount the owner of the in the Commission’s expression which finds sub- breaking of the condition upon based of law findings fact and conclusions There is another kind cancel- sequent.6 All the relevant statutes present case. 1913 and proceeding, originating lation that, principle 1889 have declared since 11.146(e). original set forth The now § the first in time appropriators, between its revisions version that statute and subject to certain right, now is first Legislatures abundant- subsequent make it exceptions judicial interpreta statutory ly provision ap- clear that cancellation priority appropriator’s an tions. The plies only when cancellation sought is on he presently by holder has is date ground right the narrow that a determined statutory any appropriation proceedings If or use of State lawful 6. The cancellation formal, wilfully during any abandoned three are set out 11.171—11.186. water is §§ partial They years, right is aimed at a total or revocation to use the water successive again the document which evidences the holder’s and the water forfeited his, right or use State his appropriation. filing. face, previous certified 11.172. If the holder has presumes § itsOn the statute put any part water,” failed to of the water to a benefi- appropriation use of State “lawful during preceding, years cial use ten predicated upon resulting forfeiture altogether on the document be cancelled finding for three succes of wilful abandonment presumption basis of of wilful a conclusive years. can intent is immaterial in sive While 11.173; Rights § abandonment. Texas Water proceedings, for it is essential cellation If, however, Wright, supra. he Commission v. City Corpus 11.030. § feiture declared put has a beneficial some water to County Im Water & Christi v. Nueces Control period, during year use subject the ten the document (Tex. provement No. 540 S.W.2d District his non- to cancellation to the extent of Civ.App. Corpus n. r. writ ref'd Christi — exception use. 11.178. An exists in favor of § statutory e.). appears to be a Section 11.030 municipality held or a promulgation law doctrine of the common municipal beneficial district — abandonment, three-year quali coupled awith during year period prevents the ten cancella- doctrine, by the of that as indicated fication any part tion of § of the document. 11.184. City reasoning v. of Anson and citations importance department’s water-us- Arnett, supra, men in the other cases followed age provi- statutory records is illustrated opinion. tioned in the proceedings sion that cancellation are authoriz- implied of a hold It has been that cancellation department ed when “the finds that its records permit is to effectuate a forfei er’s proof portion do not show some County Hidalgo appropriative right. ture of his during past has been used Improvement 1No. District Control and years....” Goodwin, (Tex.Comm.App. 25 S.W.2d 813 proceed- In contrast to the formal cancellation ings approved). judgment While that decision above, statutory provision described clearly at another cancella is rather directed proceedings for no at all and forfeiture calls statute, diligently tion a failure based simply legal result which follows declares the works, timely irrigation to construct from the establishment of certain facts. require would not scheme against provision appro- forfeiture priative works respect to forfeitures cancellation directly directly but does not in- 11.030, provides the failure 11.186 right. volve the which evidences that document pro department initiate cancellation operable only after the user of State becomes improve ceedings the sta does not validate perfect, perfected, or commenced provi any permit filing. or certified This tus appropriative right. pro- Section 11.030 in 1953. to the water statutes sion was added vides: *9 files his application permit. appropriators for a 11.141. to alternate in § the use provides Section 11.027 rather simply: “As of the water. The time may when water appropriators, between the first in time is recklessly be used or carelessly passed has right.” added). first in (emphasis A in this With increasing state. settlement is, course, user of water under a permit water has become too pre- scarce and too “appropriator” by statutory definition justify any cious to but an economicaluse only to the actually extent he has made appropriator of it. An right has “beneficial use” of the water taken under require, use so much as his needs permit, is, his the quantity or volume at the time his require. needs And if economically which was these are satisfied a use of the whole for an purpose specified authorized in his every flow other day, every alternate permit, irrespective quantity of the or vol- week, ought he not to be heard to com- ume set * * * permit forth and irrespective plain. It must be conceded that any may excess he have taken. 11.- § paucity there is a of authority on the 002(3), (5). right His has been perfected requiring rotation in the use of only to that quantity volume used him water between appropriators. The reme- for a three-year period under economic ne- dy frequently applied been cases cessity and for the purpose authorized stat- dispute riparian between proprietors, and permit. ed in his Any 11.026. difference § it is difficult to discern difference in specified between the quantity per- principle right riparian between the of a mit perfected so quantity by actual proprietor and appropriator those of an use is not a appropriative right the beneficial use of water. The trend of permit. evidenced The holder of the the later apply decisionsis to this method legal has no right to its use and was practicable. where obligated by statute to return it to the court, holding, in its validated the trial source of supply for appropriation by oth- application court’s rule appropria- ers. 11.046. The difference “is con- Texas, tors in saying the law sanctioned sidered not appropriated” at all. appropriative rights, orchestration of Assuming two or more competing “appro- based in that jury’s finding case priators” require a quantity determinable practical rotation was the more water, within the bounds of economic distributing and economical method of necessity, appropriator’s right the senior available water in order to meet the re- was formerly against junior exclusive as all use,” quirement irrigation of “beneficial appropriators, exceptions save for certain that case. The Commissionhas done noth- not presently requiring discussion. Never- ing more apply principle than the same theless, in applying such priority the inher- the present attempt practically case in an ent nature of the rights doc- economically available distribute water long required trine has an orchestration of and, by in the source of orchestra- the competing rights to avoid waste and to rights, tion of all water to avoid waste and insure the beneficial use of available water. to assure the maximum conservation That this orchestration results from the in- water, charged by statutory to do as it is herent nature of the appropriative right is provisions. and constitutional indicated in the opinion Supreme Court of County Improve- is, Texas in Ward statutory permit procedure ment District No. 3 v. Ward County Irriga- course, ap- important aspect another tion District No. 117 Tex. 295 S.W. right dependent propriative right, for the (1927), quoted where the court fa- upon the maximum and it sets vorably McCoy v. Huntley, 60 Or. limit of water in which a (1914): 119 P. 481 perfected. 11.121. A We see no reason why, granted part, even in cases in whole or in if the involving prior subsequent appropria- application statutory require- conforms to tions of require ments, the courts cannot accompanied by pre- if it is *10 time, river, than hold- fee, from time to all such if water is scribed does, in fact —the river may possibly ers use the the supply, in source of and if available occasion, to None be heard on flood. should proposed appropriation: by the erection complain surplus if stored (A) contemplates application of the reservoir, portion a new dam and of use; to water beneficial to a use appropriated it beneficial of (B) existing rights does not water impair claim, long as econom- a new so their riparian rights; vested met, which the ic necessities (C) the wel- public detrimental provision and by specific assures order fare. any event. require the law would in which 11.134(b)(3). presently We are con- § 11.027; Improvement Dis- County Ward § cerned, issues, among whether other with Dis- County Irrigation No. 3 v. Ward trict supports substantial evidence the Commis- 1, supra. trict No. finding “unappropriated water” sion’s that law, conclusion of The Commission’s It is supply. is available in the source of observed, the lan- statutory be is in should water apparent existing that no readily 11.121, must of from which one guage by be the Commission’s right may impaired of the that the Commission’s use presume grant to the district. the “unappropriated water” intends term place subject must in line district take general concept appropriative of Code’s given rights by the law the holders implied to water. much is rights So Therefore, rights senior water in- language finding. preferences Moreover, vague indeci- being uses. of the term among water stead dis- charged by appellants and the in sive the final order of the directs Commission sent, legal the precise we take it to have some detail how senior rights shall assigned to it statutes meaning preserved from impairment, particulars charged the Commission is to admin- here to discuss. It is obvious judicious promote ister “so as to lies public preventing that welfare ... water.” maximum conservation waste. and care- expressly 5.268. These statutes discussion, In view of preceding prin- throughout include the Code the fully term con- water” must be use, quantity of beneficial ciple strued as water meaning quantity that required to meet economic necessi- not required purpose for an authorized ties, corollary principle that all necessity the economic downstream use of water lies its conserva- beneficial rights. appropriative holders vested waste, a tion, of it is while non-use is, course, usage Past an indication of appropri- doctrine abhorred result required necessity by in economic result which the doctrine rights ative and a users; if large quantities those have not prevent. specifically designed to See used, strong been that is evidence that such Wright, Rights Texas Water use was not and no economically necessary Hutchins, stat- supra at 101-2. The supra; acquires one non-use for an indef- right to must dealing appropriative rights utes Rights Texas period inite time. Water implemented prevent therefore 11.- Wright, supra. Commission v. Section principle of benefi- waste of gives existing holders of use, necessity, inheres or economic cial legal rights rights. rights very assurance their doctrine of prin- without that diversions, There is no such doctrine impaired will not be other but the doctrine promulgating and in ciple use” only to the extent of their “beneficial Legislature necessarily included is, re- the amount Rights Com- principle. Texas necessity, quire economic whatever Wright, supra. mission v. flow be in the Colorado River time, law time and to extent Boyd, has been misunder- supra, Motl v. permits by appellants an orchestration all in their contention stood in all specified quantities waste. more avoid There is totaled, 11.131, supply. and certified formerly when Tex.Rev.Civ. determine within themselves the limit of “records,” art. (repealed). Stat. *11 unappropriated water available in a given which are not merely opinion speaks, in Motl Boyd, supply. source of As said permits certified which evi- supra, 286 S.W. at rights, dence appellants as contend, well, but other kinds as The facts of records question as to that can be de- compiled and maintained under administra- Engi- termined Board Water [the procedures tive which were somewhat by the dif- adding up mere matter of neers] ferent in theory and mechanics from those the amount previously appropri- day. permit pro- While the ated defined even then in terms [as cedure on their rec- aspects agency and other adminis- shown beneficial use] ords, now, distinctly tration different subtracting it from the amount principle use,” previously of “beneficial state water which had terms of determined the stream furnished. necessity,” “economic remains same. statutes in effect at the Several time of the (emphasis added). quoted sentence re- Boyd, supra, decision in Motl v. will help to fers to power of the Board of Water ascertain the precise meaning of the case.7 parte Engineers to make an ex examina- tion, on the filing application Then, now, an for scope as of all appropria- permit, to determine whether unappropriat- tive could legally exceed the ed water was available in the source of quantity applied of water which could be Appropriators unappropriated 7. Art. 7473. defined.—For the asked for if there is no purpose person, irrigation district, chapter, appropriator any supply; proposed of this the source of or if the persons, corporation existing rights, association of or conflicts with mental to the or is detri- public who has heretofore made welfare. water, manner, any beneficial use of in a applications. lawful approve Art. 7507. Board to —It may ... or who has duty approve heretofore or hereafter shall be the of the Board to all any make beneficial use of applications water within the the and issue the asked for if permit lawfully limitations of a issued application proper such made in form in Engineers, appropria- Board of Water and no compliance provisions chapter with the of this any having tion of Board; water shall be considered as regulations and the of said and is ac- perfected, been beneficially unless such water has been companied by required chapter; the fees this pur- pur- used for one or more of the proposed appropriation contemplates and if the the poses chapter, named in this and for the application of water to of the uses and pose original or stated in the declara- purposes provided chapter, this and does water, appropriate tion of intention to stated in the such impair existing rights, or vested ri- issued the Board of parian rights pub- and is not detrimental to the Engineers. lic welfare. Art. 7476. Beneficial use defined.—For the Art. 7524. Measurements and calculations.—It shall be the to be made measurements and calculations of the flow of streams from which water purpose chapter, duty beneficial use shall be of the Board to make or cause held to mean the use of such a water, intelligence when reasonable and rea- diligence applica- appropriated, sonable provided chapter, are exercised in its in this com- purpose, tion necessary economically for a mencing lawful as is such work in those streams most used purpose. uses; irrigation for the for data and make suitable location for or other beneficial to collect May reject application. Upon Art. surveys; the the to determine the most — filing application, accompanied by constructing of such works to uti- provided, State; data and fees hereinbefore it shall lize the waters of the to ascertain the duty preliminary of the Board to make a location best suited for and area lands and, appears irrigation; sites; survey examination thereof if it to examine and reservoir there is no of practicable, water in the source and wherever to make esti- that, reasons, supply, works, pro- proposed irrigation for other mates of the cost of posed appropriation allowed, improvements shall not be and the of reservoir sites. may thereupon reject application; Board such Art. 7525. Board conversant.—It shall be the case, application duty in which if the shall elect not of the Board to make itself conversant further, proceed the Board return to with the water courses the State and applicant any part accompany- concerning irrigation such of the fees needs of the State mat- ing application. ters, storage such and conservation of the reject applications. purposes. Art. 7506. Board to waters of the State for other Art. 7527. keep —It duty reject Proper shall be the of the Board to all board records.—The shall applications proper and refuse to issue the in its office full and records of its duty in all quan- presume performed official use. over the Any beneficial excess Therefore, respects. the “records” tity applied so not be considered such “not shall spec- quantities Tex.Rev. the Board included both [by appropriated.” the Board] filings and art. 7543 And because ified in (repealed). Civ.Stat. which the Board determined quantities Board directed determine use of irrigation required and other lawful quantities “required properly were is, ..., quantities lawful uses in order to secure water,” being applied bene- highest susceptible beneficial use were work, use, against quantities “full and records of its measured keep proper ficial *12 calculations,” must actually observations and we of water used.8 work, calculations, it. Section directed all of record 14 that a certified observations and property copy be of which shall Art. 7528. duty water, the the State. of be Board such statement filed with the Quantity and, addition, water. be the of shall Engineers; this sec- of Water quantity of the Board of to ascertain the required copy certified accom- tion panied that the be proper quantities and to the determine another, independent sworn state- required irrigation for in in order to and other lawful uses showing, among things, other follow- ment the State, the several sections of the ing: highest water, secure the such tions beneficial use of such [Wjhat being amount or volume of water to be sec- work first conducted in those taken, actually diverted or used and for what where, Board, judgment the the purpose; amount or of volume greatest necessity exists. water, may be, as near that has been as right right Art. 7542. Water defined.—A water diverted, used, pur- taken or and for what right is the to use of when the water the State every year origi- pose, in each and since such acquired application such use has been the made; filing nal was ... under water the statutes of this State and added). (emphasis respect filings With to such purposes chapter. the stated this Such Board, provided 14 with the Section as follows: basis, use shall be the the the measure and has, Every person prior the first . .. who right limit to the to use water of the at all State 1913, day January, actually or di- taken any exceeding times not case the limit of any any applied verted same to volume to which the user is entitled and Act, purposes the uses and named in this necessarily required which is volume can filing is at date of the of the statement beneficially irrigation be used for or au- other filed, provided continuing to use herein to be uses. thorized water, shall, apply who one and year such within Rights Art. 7543. Use of water to the limited.— effect, go after shall file this Act into acquired provisions use of water under with the board the sworn statement last de- chapter this much shall be limited and to so restricted Section, shall, against scribed State, as required necessarily as thereof be right have to take and divert beneficially when used for the stated being to the or amount volume thus chapter, irrespective capacity in this actually applied; provided, that works, used or other ditch and all the water nothing be herein shall construed to affect applied appropri- so shall not be considered as any priority right any any relate to as between ated. claimants, appropriators, added). (1925) (emphasis or users from Tex.Rev.Civ.Stat. supply. source water Commencing appro- 8. with the creation of the added). (emphasis The 1913Act was amended priative right, required the user with was to file Tex.Gen.Laws, 88, in 1917. 1917 ch. at 211. county showing the the the clerk a sworn statement preserved 83 Section of the 1917 amendment particulars works constructed for permits the by of water under issued users purpose taking water from a stream. filings, provid- the Board and under certified Tex.Gen.Laws, 5. A ch. somewhat claiming filings ed those under certified had provision more elaborate was made in the used, quantities filed a certified record required as Tex.Gen.Laws, 21, 6, Act. 1895 documents ordation showed ch. Act, they provided the 1913 county filed with clerk for rec- years to use water three continued after capacity for use but not actual effect, thereby acquiring title 1917Act took use. water, against right use limitation Engineers In the Board of Water was claimants from the same other stream. permit system created instituted. required The 1917 Act also 100 that all 15. Sections §§ and, keep users of State before March preserved requirement and 13 year, each file with the Board “such detailed works be described in sworn filed statement daily operations record of clerk, county with who was directed might someday decide to use a important gist

It is to note that the supra, respect of Motl Boyd, approaching quantities specified discussion, pertinent under that the point filings? Are permits their right appeal statutes did not afford a Legislature we to assume that the intended from the Board’s as to determination requiring a useless act in that users of State whether was availa unappropriated water report quantities ble, except that the proposition every pur- and for what actually year, used If Board’s was ministerial.9 duty Legislature intend create pose? Did the Board’s records showed that source pertaining to such certified by its statutes water, contained permits property a class of permit; was duty-bound Board to issue might a few obtain a valuable wherein show, the Board if the records did so fee, not right at a nominal duty-bound reject application. to enable them to for their necessities but Board, we to that the for an Are assume profit? Are we speculate therein for future years, regularly violat extended number provision re- to assume duty ed its ministerial and issued years, in order actual for three quiring quantities use of additional authorizing the might per- its own rec notwithstanding *13 used, so meant noth- quantity fected in the in rights quantity ords reflected a total assume, the ing? conversely, we to Are water availa quantity which exceeded the of cer- physical that all holders impossibility we in the Are to as ble Colorado River? permits perfected the full filings tified and Legislature that knew of this sume the claim, only by their as measured extent of by Board did duty violation of the and permits, so that filings their and certified Legis the nothing? Are we to assume that riv- used than the actually more water was rights sys appropriative lature intended an assumptions are re- er contained? These unlike other United any tem States position; quired by appellants’ fundamental which, to the reason for contrary doctrine’s impermissible them how state illustrates rights being, paper holders of allowed the however, is, important point they flow unused to are. legally compel that water the as to they on that that Board’s determination the Gulf of Mexico the chance the being usage original filings, back to certified water to determine the diverted the taken year.” by the oath users calendar At time under the each information furnished Boyd, required and Reports presently in Motl v. 100 of §§ decision water. such 7592, the 1917Act had been codified as articles and of users under 11.031 Code 7611, (1925). and 7612. Tex.Rev.Civ.Stat. they keep requires a rec detailed § 11.032 that Thus, in addition to the records which ord which annual use can determined. from 1927, had, complied, year Board itself of it in Stone, (Tex.Civ. Bartley See v. S.W.2d 754 Boyd, the decision Motl v. record e.). 1974, App. writ ref’d n. r. Antonio — San used, quantities assuming actual of water readily pertinent apparent state It person required file a each who was sworn forth not refer the amounts set ment did county so statement with the clerk did Board, by permits for these would issued Act, assuming well the 1913 and as that he by appropriated and a user not water show filings reports required by made the other not, event, appro would show by that Act the 1917 There- amendment. priate before the water which vested fore, Boyd when the in Motl v. Court stated Appel procedure was first instituted availability unappropriated that the “can heavy Boyd upon thus Motl v. reliance lants’ by by mere be determined the board faulty case does foundation—the up adding previ- of water matter amount appellants to it. state what attribute records, ously appropriated and shown on their subtracting and water it from the amount of state scheme, statutory 9. Under previously had determined is, course, empowered to act Commission furnished,” referred records stream it statutory certain with broad discretion within appropriation, showing the water available for City of San Antonio Texas limits. resulting the Board’s own “measurements Commission, 1966). (Tex. 407 S.W.2d of the flow of streams from and calculations which Civ.Stat. art. 7524 generally, Problems-Administra See Current appropriated” —Tex.Rev. Texas, 47 Texas L.Rev. tive Government and, (repealed) ; referred — (1969). 869-872 showing actual water to the Board’s records expert proceed- existence of was witnesses. This manner of based upon desig- amounts of ing power was within the Commis- interpretation nated in previously-is- by sion a correct and reflects sued permits, upon showing but records of the relevant statutes. Commission quantities 11.134; 5.268, water the Board had deter- APTRA 13. §§ mined water-usage reports from its Legisla- appellees to refer is idle observations, measurements, own calcu- per- statutes amendment of the ture for an “proper required lations to be the quantities rights or to either to taining for irrigation and other lawful ... uses non-use, of water occasioned waste highest order to use of secure beneficial Legisla- as the dissent would do. In water,” (repealed); such “benefi- art. doc- promulgation ture’s now, cial then, use” defined being appropriative rights, body did trine of terms of necessity economic and actual prevent all period. for a three-year Arts. procedure waste and allow the followed (repealed). instance, in this for the principles is founded In doctrine summary, fact that all the certi- use, waste avoiding assuring beneficial fied filings quan- may specify pervasive express illustrated which, tity totaled, when exceeds principles throughout enunciation of these the quantity of water in the River Colorado Code, Supreme and as confirmed case, is of no legal consequence in this Rights Court of Texas in Texas Water Com- the only inquiry appro- relevant under the Ward Wright, supra, County mission v. priative rights doctrine statutes Ward Improvement County District No. 3 v. pertaining to it the total quantity Irrigation District No. supra. appropriative rights to which have *14 been perfected by years’ three beneficial by appellants of points Other error raised use, is, that of the purpose use water for a meaning depend upon do not the of the specified in permits filings the and certified water,” phrase “unappropriated in a quantity by dictated necessi- economic and these we now to turn. ty. always This has been since the case Appellants the contend Commis inception rights of dispute. the now in to holding applicable pro sion erred the indeed, requested There was no finding, it the of section ceedings provisions before contention, there is every no that each and Lower 2(p) Authority Colorado River permit and to filing pertaining the provides irrespec Act. section that That Colorado to perfected River been the rights acquired by the any tive of held or full speci- extent of the of water hydroelec of Authority, generation the fied therein. necessary, would be of Such power, right impound tric to “flood course, appellants’ to support contention the them for waters” of river and to use the that these and within permits set generation hydroelectric power “shall be themselves total quantity “appropri- the rights person, the other subject any to water,” allowing ated the easy mathemati- corporation body politic” municipal computation water,” cal of “unappropriated previously acquired, may sub which had a negative quantity in this under instance impound to acquire, right the sequently appellants’ theory. See 11.029. § put and them beneficial use such waters to pro authority.

We that hold the Commission under a issued permit to ceeded case de the statute correctly Appellants’ contention that termine the availability gives priority in such “flood waters” to require water” on prospective permits subsisting the basis of which were holders of usage along ments pat and historic of the statute’s enactment time wrong, expressly Colorado River above and below site of ently the statute dam, the proposed utilizing, together with Authority’s rights makes the subordinate as evidence, testimony other opinion acquired well issued rights to contend, appropriated by should be further uses Appellants also “thereafter.” however, municipal appropri- and expressly statute is limit- domestic that the respect with this Order whenever declaring superiority granted by ed ation and, reason, en- rights appropriation may water” for that priority “flood we strike from they suggest “should forced. of fact and conclusions of law findings rather an finding plainly This fact itself all references Commission, by the albeit an awk- attempt Authority Act,

the Lower Colorado River attempt, ward state 2(u).” do They suggest Section appropria- the district allows awarded is, Commission, error if error there municipal tion of water domestic prejudices right pos- any substantial having priority previous appropri- uses over 19(e). sess. APTRA § 1931; these May after ations made dis- appropriations earlier striking

We do not see that our the rele- permit, by trict’s virtue law, vant of fact findings and conclusions “fur- results from the term awkwardness upon allegedly interpre- based an erroneous 11.028. The appropriations” ther used Commission, given tation the statute categorization finding evidently as a of fact will cure any prejudice, even if such exist- the Commission’s determina- results from is a 2(p) presently ed. Section statute tion the authorized uses force and the Lower upon is a restriction put; propo- water must be appropriated applica- which is Authority Colorado River finding plainly is rather sition stated in event; any ble in it is not a restriction a mixed statement of law fact. 2(p), orchestrated Commission. Section 11.027 and 11.141 of the Code §§ (1) finding complain Appellants provisions thereof, other will determine the proceeding in a aimed at deter- irrelevant priorities appellants relative and the dis- (2) permit; whether issue a mining trict conflict which arise after terms, “to the applies, 11.028 its own right perfects the district district, rights any city or town” produce hydroelectric pow- or commences to neither, no conferred being can obtain therefore, not, We er. need determine section; (3) by the the Commission’s proceeding meaning term spell the mechanics for finding does not out “flood priorities waters” instant adjusting priorities between the being prejudice There no parties therein. water, including and other *15 respect, claimed by appellants in municipal and domestic of other for this reason. point error is overruled The point of error. users. We overrule the it uses finding is relevant because fixes the next Appellants contend under legally put to the water can which applicable holding Commission erred in to condition of the permit, for forms a Code, proceedings 11.028 of § finding as a of fact. Other- permit as well provides part in as follows: wise, to appellants. no prejudice it occasions May after Any appropriation made any purpose for other than domestic Moreover, appellants believe we right or use is to the municipal assign to they would meaning err in the any city appro- or town to make further enacted, 11.028 originally As § 11.028. § or priations of the water for domestic provided as follows: municipal paying use for the without in As the first appropriators, between water. provided, how- right, first time is the The Commission found as a fact that or ever, allotments appropriations for all foregoing pro- to the applicable section hydroelectric for hereafter made ceedings mining, and recited that: manufacturing, power, irrigation, than purposes other navigation, any

. .. River or appropriations the Colorado purposes, shall 17, 1931, municipal pur- for domestic or May Basin made after city, any right municipal granted subject to the than domestic and poses other power do- gives town or 11.033 of eminent municipality of this State § further appropriations make said essentially the same main in terms as necessity water thereafter without the original statute. is obvious that therefor, condemnation or for paying do- are in pari statutes materia and mestic and as herein municipal purposes as the one before us several cases such defined .... Act, the Code Construction provisions of 5429b-2, 217. The apply: art. Tex.Rev.Civ.Stat.Ann. act same insured the priority intended Legislature it is presumed provi- other municipal domestic and uses by any private interest over public to favor the 1, declaring such sions found in section 3.01; consider, con- interest, we § the first other use priority have over statutes, object relevant struing the whatever, 3, declaring and in section obtained, sought the circumstances to be right purposes to take water for such enacted, which the statutes were under fundamental, and “primary and legislative history, their former uses, recover from other essential to waters consequences particular of a provisions, the shall be and un- paramount construction, and the administrative con- ” questioned gave .. .. Section 3 also statutes, 3.03; we struction of § power “political eminent domain to all special provisions gener- must construe State, sub-divisions of the and Constitution- both, if provisions give al so as to effect to Agencies exercising al Governmental dele- (Section 3.06. possible, that is references § gated Legislative take powers,” to sentence are to the Code foregoing municipal purposes.10 and domestic Act.) Moreover, we are bound Construction Presently, 11.024 of the sets out the Code § as- rule we must by the fundamental preferences, again giving first preference give Legislature’s certain and effect to the uses, municipal “domestic and intent; and, doing, in so we must consider including water for human life sustaining to all give bearing effect laws on animals”; life of domestic 11.027 Associates, Jessen Inc. v. subject. same time, right, declares first first Bullock, (Tex.1975). 531 S.W.2d doctrine; exception 11.028 declares an was created a towns, The district conservation that doctrine in favor of cities Tex.Gonst., district, law, allowing appropria- special them to make “further uses; tion” for domestic municipal XVI, or purpose provid- art. “for the purposes, complexity irrigation, hy- managing mining, 10. the State’s for industrial recreation, supply over-emphasize, power, navigation, is difficult to due droelectric part legal small Capturing no status water as other uses.” § “beneficial property. reservoirs, dams, an article of variable is first means of allevi- water in obvious. The entirely amount of water varies problem available ates but does remove greatly, day day, respect even from availability matching water need. with a portion that immediately of the total water derived example, generate For release of water to need- Moreover, from rainfall. once on power need ed electric not coincide with a earth, assuming the intervention, no natural artificial for the water on the of a downstream the water is in motion constant irrigator; release of water to assure *16 pos- will be and lost forever to if not reduced capacity prevent sufficient reservoir to a down- put session and to use. The need for water flood, may stream cause the waste of water always availability; not does coincide with its more than all downstream users because it is example, may irrigation for the need for water rivers, important to can use. some it is On not coincide in time with an abundance near water to create a force release sufficient Conversely, in a water stream. when water is the which holds back the intrusion river mouth required irrigation, for little avail- there be large important of salt When these and water. upon Superimposed in the stream. the able equally im- interlocked with the interests are circumstances is the that some obvious fact portant represented by property interests immediately important uses of water are more water, indi- to use held thousands of required than others. The viduals, engineering to mention not the difficult relatively municipal purposes steady for predictable, is and involved, problems complexity of the enormous importance overriding and administering the State’s water laws become compared to some other uses to which water apparent. may legally put. legally used sup cal of several areas cities to which it municipal, water for ing supply a source of processing water, and of which have plies domestic and industrial use all ...it is a acquire supply. and same a water Tex. transporting authority to agency body politic 1015(30), a “governmental and 1109. The arts. Rev.Civ.Stat.Ann. corporate;” empowered and it to and power a city in which exercises manner to appropriation permits water and acquire supply rests provide to a suitable water dams, “unappro- impound, by means of its governing the discretion of largely in ” . . priated flow of the Colorado River .. Kimbrough Walling, 371 S.W.2d body. 1, 7, 15, 17 §§ (Tex. 1963). meaning for which The not 655 et In of fact chal- seq. findings deprive gov appellants contend would found lenged by appellants, Commission a this discretion erning body city that the district furnishes water presently city pre to maintain a require, if the cities and directly indirectly eight or to municipal position ferred domestic and, towns and distribu- given location uses, city permit, itself obtain facilities, supplier “logical tion notwithstanding special law which both and future domestic and mu- so, it to do empowered created the district requirements” in fourteen nicipal water municipalities served the benefit final counties named in Commission’s the Code intend by it. We do not see that order. forms The which appro 11.028 makes ed this result. That § to order the district divert such authorizes May 17,1931, insofar as priations after “88,000 per an- acre feet of use, municipal “sub domestic are not for or purposes.” municipal num domestic to any city town ject to the statutory duty was under a appropriations make further “give preference to in the applications to pay use” without municipal for domestic or order 11.024 of declared Section [the ment, do preference for only reiterates the will effec- applications Code] municipal use found elsewhere mestic and tuate the maximum utilization of water and Code. escape prevent are calculated a beneficial water without contribution to ex- expressio rule of unius est preferences public service.” 11.123. The § alterius, by appellants, is upon clusio relied categorized, listed in 11.024 are and as- construction, subject rule of upon based the nature signed priority, give must effect paramount rule that we or character holder so, hold doing we all related statutes. In right, upon but based the use importance given supervening municipal being first domestic and uses beneficial the Code to throughout preference. usage for domestic usage, particularly substance, over would exalt form the un municipal purposes, demonstrates general legislative scheme destroy us legislative intent mistakable municipal upon priority based and that controlling factor age is the use, to hold that domestic water were we and towns provision relative to cities town, district, city it is because excep merely was intended 11.028 preference was not listed entitled time, first first general rule of tion to the are sub 11.024. Water contracts 11.027, applica right, now found in § suppliers of ject public control and the exception being defined bility statutory duty water are furnish they are con when and 11.028 11.024 §§ landowners reason adjoining together. strued 11.036,11.037,11.038,11.- able demand. §§ no error Commis course, We find also, of Suppliers *17 mechanics for to set forth the sion’s failure obliga contract pertinent their the dis priorities between tions, adjusting the regulated by the In the State. users rights of other corporate trict’s case, body the district is a governed by is matter geographi- That politic and coextensive with the water. law, statute and the con- construction of several dams and reservoirs. common be sidered when and if a conflict occurs. Appellee presently oper- District owns and Thomas, ates Lakes J. B. located between

Accordingly, appellants’ we overrule Spence, Big Spring, and and E. V. Snyder point challenges of error which the Commis- 88,000 finding together sion’s near Angelo, acre Robert Lee. San feet the permit, authorized under are to with the U. S. Bureau Reclamation and annually used for domestic and munici- Corps Engineers, S. maintains U. pal purposes. and three reservoirs on the Concho branches, Nasworthy Lake as well remaining We appellants’ have examined points of error and C. find are without Twin Buttes and O. Fisher Reservoirs. They are, merit. accordingly, overruled. operates LCRA six lakes on the Colorado error, Finding judgment no we affirm the Buchanan, Inks, Lyn- Texas: Lakes Central of the district court. Falls, Travis, Johnson, don B. Marble Austin. Affirmed. site of the Dam is on proposed Stacy SHANNON, Justice, dissenting. Coleman, Concho, and Runnels river

I file this dissent respectfully. permit granted appellee Counties. The Dis- question The central con- appeal 554,340 impound trict allows it to acre-feet cerns meaning term “unappropri- of water in the reservoir and to divert and ated water” as used in Tex.Water Code 88,000 yearly acre-feet 11.134(b)(2) Ann. (Supp.1982). 25,000 and municipal domestic The Colorado River rises in intermittent per acre-feet water annum for industrial draws County in Dawson in West Texas purposes. generally approximate- flows southeast statute, By is empowered Commission ly six hundred miles to its mouth on Mata- grant appropriate only water gorda I Bay. Texas State Historical Asso- unappropriated if it finds ciation, (1952). Handbook of Texas available in the source of Tex. supply. tributaries, The Colorado and its prin- 11.134(b)(2) (Supp. Water Code Ann. § Pedernales, cipal being Llano, ones San 1982). The finding Commission made that Saba, Rivers, drainage and Concho have a fifteen, affirmatively in number 37,800 basin of approximately square miles. provision addressing in the agency order Association, Texas State Historical I Hand- adequacy occasion, book of 380 (1952). Texas On support proposed appropriation: river experiences great when rises there existing downstream recognizing After needs, more water than anyone wants or appropriations Stacy claims below flooding becomes a problem. Converse- ly, Dam, regions finds that are through which river there flows withering often suffer droughts and unappropriated flows in the Colorado extremely river then has low flows. River at the dam site sufficient to is a fair statement that the Colorado is 554,340 impoundment acre-feet of inconstant stream. water at elevation 1551.5 above feet sea con- mean level and diversion and

The water of the Colorado and its tribu- 113,000 municipal sumptive taries furnishes use of not to exceed or all Midland, Odessa, water requirements Big without per acre-feet of water annum Austin, Spring, Angelo, San impairing existing rights, provided throughout used for irrigation, basin of water from the reservoir are releases manufacturing, hydroelectric generation, quanti- from time to time in such made purposes. other provide ties as superior to which all and senior previous develop- There has been much ment added) of the waters (Emphasis Colorado are entitled.

Nonetheless, River in- unappropriat- Authority of The Lower Colorado amount sists that the assessment extent to ed in water available the Colorado River of are appropriat- which the waters a river to the records of the Commission according ed, denying or granting insignificant is an fraction the total quantities permit, upon must be based appellee applied by acre-feet District outstanding permits and specified in the ultimately granted appellee by District Therefore, permit if a has filings. Commission. differences between been the water issued for use of parties proceeding to this do not con- not to a specified permit in that is cern a of the amount of determination new Commission until appropriation by the river, present in the but physically in or in has been cancelled whole divergent instead views as concern part. meaning water” used as for the District and Commission Counsel in Tex.Water Code Ann. § “unappropriat- argument advance the finding An examination fact fifteen ed refers water which is not water” an effort determine Commission’s existing being by appropria- used currently supporting rationale its determination going tions which is not to be probably is existence beneficially by appropriations used those helpful. being Rather than “concise Presumably, the near future. determi- explicit,” provided by as Tex.Rev.Civ. of future probability nation of the benefi- 16(b), 6252-13a the find- Stat.Ann. art. concept unappropriat- cial under this use LCRA, ing, by aptly characterized hoc ed is to be made on an ad basis Finding instead “vague indecisive.” by “experts” application proceeding each simply fifteen bare statement contains who and other project population growth Commission, recognizing after thought future water use. factors affect appropriations, found suffi- downstream Appellees’ existing view cient im- unappropriated flows appro- to have holders considered 554,340 poundment of acre-feet water. have priated only so much water problem, In dealing with this character them as of the beneficially been used Supreme “It will not Court has stated: hearing, addition to those date of the guess do for a to be compelled court finds will be amounts as action; underlying agency’s theory in the used them future. foreseeably nor can a court be to chisel that expected will the Commission make this Supposedly, what the precise agen- which must be from for a hearing evaluation each In cy vague left indecisive. other proceeding, based the record in each words, ‘We must know what a decision prior unfettered determinations duty say means becomes ours to before appropri- regard without right wrong’.” whether Securities & outstanding per- ated stated in the Chenery Corp., Exchange Commission v. view, outstanding appellees’ mits. Under 194, 196-97, 1577-78, 332 U.S. 67 S.Ct. by use perfected have been (1947). 91 L.Ed. 1995 perfected presently be reduced opinion, their if, in the Commission’s fifteen, finding I and af- have examined prior than future use will be less authority, ter the reading, most careful use. reasons, by the Commis- logic employed discovery huge quantity

sion of a rationale agree appellees’ I do unappropriated water existent Colo- finding for the Commission’s support of mystery. delphic rado remain shrouded in is that their several reasons. One reason review, then, majority On and I have with the ex- argument is in total conflict relegated inspection par- applications been pressed legislative intent ra- explanation ties’ the Commission’s of water be considered appropriation in a and uniform tionale. the Commission consistent

577 (C)is the public of not detrimental to system regulating manner. The appropri- added) water by granting (Emphasis administrative welfare. legis- ation was first enacted scheme supplanted 1913 Act The lature in 1913 and later re-enacted in 1917. filings, water based on local rights state 171, 364; Tex.Gen.Laws, 1917 ch. at seemed to primary characteristic of which ch. at 211. The statutes filing system, the local be disorder. Under presently per- to applicable applications for outstanding to impossible measure (§ mits appropriate 11.134(b)) water are availability or the claims substantially same Act original any particular segment water on of a Booth, Applications 1913. Frank R. legislature stream. The 1913 considered Water, Appropriate Proceedings Permits to existing governing laws water the then University of Texas Water Law Con- “unsatisfactory rights be in an condi- (1959). ference 96 tion,” impeding development. economic Section 19 1913Act reads: Gen.Laws, 171, 102 379. The ch. at reject duty shall be the board sought by permit 1913 Act the centralized all applications and refuse to issue the system bring regulatory order into the for, unappro- asked if there is no process: priated water in the proposed source principal purpose and function of the supply; or if the proposed use conflicts Act was to substitute existing rights, with riparian or (of obtaining system rights, public detrimental administration) right under state for the shall duty welfare. It be the of the board ex-parte declaration of the to approve all applications and issue the under the system existing theretofore for, asked application if such Acts of and 1895. Irrigation General proper made in form with compliance City Corpus County Christi v. Nueces the provisions of regula- this Act and the District, Improvement Water Control & board; tions of said and is accompanied (Tex.Civ.App 540 S.W.2d . —Cor Act; required the fees in this and if pus e.). Christi writ n. r. ref’d the proposed appropriation contemplates system The permit reflected an effort the application of any water to appropriations, achieve control over water uses provided for in this thereby certainty obtain more in an Act; and not impair existing does certainty area of law where is essential. rights, riparian rights, and is not detri- development irrigation systems public mental to the welfare. 1913 Tex. adequate municipal power water and Gen.Laws, (Emphasis required capital, capital was sources added). now, then, forthcoming and is not in an 11.134(b) Section of the Texas Water legal uncertainty. As re- atmosphere Code reads: sult, legislature passed the 1913 Act (b) The grant commission appli- shall settling express purpose with the uncer- cation if: only capital: so as tainties the law to attract (1) application re- conforms to the riparian existing Not and other quirements prescribed by chapter Act], rights protected [by accompanied prescribed enterprises safeguarded; established but fee; develop- is afforded to foundation new (2) unappropriated water is available ment. Under our statutes the in the source of supply; who, faith, good complies appropriator (3) proposed appropriation: all the thereof does requirements (A) contemplates application of any- know he whether has obtained use; water to beneficial any assur- thereby, nor can he offer thing (B) of that to those from whom he impair existing does not ance fact his enter- riparian rights; capital develop or vested obtain would costly principles by Rep- One enumerated will funds for prise. Who advance resentative to insure a “safer rule Glasscock value improvements, for their dependent for the was that it would be the future” exist solely a water duty Engineers Board of Water “to among today and tomorrow be numbered *20 reject all refuse issue applications and to indi- many the that How things were? for, if no unappro- the asked there is . .. in this viduals and communities in the source of priated proposed water and been sought capital have to interest supply.” precept This can be effective by legitimate met the upon the threshold determining if the of whether method and “You have objection: unanswerable upon water is based unappropriated exists law no under the to adequate protection reasonably certain determination upon your supply assure the water previously appropriated of amount water provi- When proposition depends?” the fu- the of water available for and amount and a complied sions bill with of this hand, other if appropriation. ture On the obtained, a reasonable assurance were unappropriated measure of water the legal protection of and of title upon present projected based and future Tex.H. rights involved can be shown. use, problems sought by to be resolved R.J., 949, 954 Thirty-third Legislature hardly have been permit system would (1913). (Emphasis un- throughout added capital investments addressed because noted.) less otherwise system encouraged by would not be pred- water practical right which one’s is Act, Moreover, provisions of the 1913 icated on the inexact art of speculation and particularly requirement that the Board forecasting use. Engineers reject application of Water an if con The most basic doctrine de- there no were and struction that courts must ascertain signed permits to insure those who obtained Jessen As give legislative effect to intent. of a for their supply definite Bullock, (Tex. 593 sociates S.W.2d by present future As stated and needs. If, indeed, 1975). spo legislature Glasscock, Representative one of the au- ken, it the courts should cannot be said that thors of Act: choice because that simply make different In commit- public hearing before our seems, moment, bet at the to make choice tee Irrigation] Committee on [the are required often ter sense. All too courts complaint plea most grave strongest and in the meaning of statutes to divine the was who had presented by relief those absence, absence, any objective or near made development irrigation extensive ap In this legislative indication of intent. enterprises, oper- other in some cases demonstrated, however, previously peal, years, only deprived ated for to be plain. The legislative purpose made their by more recent diversion by the 1913 Act legislature intended point supply upper at to Texas bring certainty order and take, Now, . bill stream. . . in this we encourage capital so as investments law must, we existing rights all as we find on protect appropriators’ reliance and to them leaving existing . .. these filings. These permits and certified their undisturbed, protect undertake to having purposes accomplished were to be them, remedy the men- grave condition administer agency one administrative enterprise existing that an tioned uniform and by requiring then program of its by subsequent ruined diversion procedures and standards consistent intake, point above its permits. of such application granting future, and to a safer rule provide legislature believed apparent It is that important certain application of partic legislation, of such means Tex.H. underlying principles.... the contents requirements as to ular R.J., Legislature permits and the re Thirty-third applications Engi- (1913). the Board of Water quirement provisions can- neers “make or cause to measure- waters covered be made reappro- flow subject ments calculations of celled would be appropri- legislature streams which water in the priation, again stated ated” 1913 § clause emergency that one of the 368, would be possible to measure provisions the cancellation amending certainty on any some one watershed the appro- water available for further make outstanding subject extent priation. emergency provided: clause rights and the extent of unclaimed law fact the present Sec. 3. permits.1 to further issuance of provide partial for total and does not Since 19 of the 1913 Act basis for is the per- cancellation Code, 11.134 of the though even all or a mits purpose legislative enactment bene- being appropriated and water is not *21 controlling be of should in construction the thereunder, a the that ficially used fact term employed water” as exists public need to make such appropriation available for and beneficial use, further the fact that the original

Since enactment of the stat- 1913, to be the law needs clarified so as to remove legislature consistently ute in has inconsistencies, and emergency create an concept reaffirmed the that unappropriated defined, public an the imperative necessity water is that part, by giving consid- requiring Rule to be Constitutional bills quantities eration to the outstand- stated in 1953, days read on several in each House ing and In three permits filings. certified hereby and suspended; be said Rule legislature year first enacted the ten ef- and this Act suspended, shall become provisions, cancellation now as Tex. codified its be in force from and after Water Code Ann. The fective and 11.171-11.186. §§ it is so Act, passage, (Emphasis and enacted. emergency clause of the 1953 Tex.Gen.Laws, 352, supplied) 868, provided: ch. 5. The fact are many Sec. that there Water Supreme Court in Texas granted heretofore Board Rights Wright, 464 S.W.2d Engineers and certified year (Tex.1971), sustained the ten Board, heretofore filed with said under provisions against a cancellation constitu- no which water authorized Wright tional The Court in ob- attack. be diverted appropriated has been that one of the of the can- served

put to beneficial use and fact the further was to cellation statute make unused is great making that there need for such reappro- available for covered a water available for creates beneficial use priation. emergency an imperative public and an permittees acquire did not necessity that the Rule re- Constitutional law of non-use water. Common to the quiring that several bills be read on three appro- regions arid and of western each days suspended, House be generally is that priation law the idea is hereby suspended, same this Act appropriated waste non-use of waters is a shall take effect and from and be in force appropriat- Once water is water. its passage, after and it is so enacted. ed, is re- availability to another user supplied) (Emphasis defeated, if permittee duced or a of it year pro- portion In the 1953 ten limitation does not use substantial sea. visions were will run amended. 1957 the water unused into making specific at 82. In addition to system appropriated A workable stream, appropriated provisions from a the 1913 Act a the amount [The established] procedure by rights appropriation might which the waters be available for further might ascertained, certainty. giving degree a stream be thus with some ascertained safety Cox, capital. Engineers, warrant of first For the time Board of Water The Texas repository appropria- (1928). added) (emphasis a central for records of Texas L.Rev. provided, tions was where the amount appellees’ suggestions, policy argu- but such produced general has rule waters is the conser- beneficial use waters properly legisla- ments are addressed resource, whereas, non- vation to change ture the law rather than to courts appropriated equivalent use of waters law. However construe attractive added) (Emphasis to waste. be, it appellees’ policy argument must that the ref- Accordingly, may seen yield prior legislative determination 11.134(b)(2) isolated erence public which interest. measure is in legislative occasion of concern about which it is considering In a statute wherein appropria- water is and is not available for legislature has considered clear whether legislature provid- tion. Each time the has question, particular and answered a courts ed mechanism arguments. may legitimately policy consider forfeited, filing certified hand, the other it is basic law if On plainly it has indicated that water legislative language or the statute filing, forfeited or until history evidences statute cancelled, is water.” “appropriated question legislature has considered legislative There are other enactments answer, duty of the courts provided an support of the definition of give recognition respect is to full example, water advanced LCRA. For situations, legislative answer. In (Section 49 of 46 of the section the 1913 Act here, presumably con- legislature Act, 11.030 of the presently § *22 conflicting policies weighed the sidered and Code) provides: Texas Water arguments, courts must defer Right by Sec. 49. Forfeited Abandon- the legislative determination. Any appropriation or use of ment. — water assert, If, as users downstream appellees made heretofore under statute using Stacy of the from the site are proposed this State or hereafter made under provisions of this Act which shall will- by they water to which are entitled the fully during any abandoned three succes- man- filings, the solution permit years, sive shall be forfeited and legislature is for the Commis- dated appropriated formerly water so used or proceedings pur- sion to initiate cancellation again subject appropriation shall be 11.174 Code Ann. § suant Tex.Water the purposes stated in this Act. 1913 (Supp.1982). 171, (Empha- at Appellees’ unappropriated view of sis supplied) it con- faulty reason that is further 11.146(e) (Supp. Texas Water Code § Court Supreme flicts with the view of 1982), course, prime example: of is a further after years a few only Texas stated of If a has been issued for the use and 1917. of 1913 enactment of the Acts subject is not a new Motl v. 116 Tex. S.W. Boyd, been appropriation until the stated: (1926). The in Motl Court provided by in cancelled whole or of Water duty is It [Board (Emphasis supplied) section. applications where Engineers] reject 11.146(e) complete harmony Section is no there is principle with the that the Commission as to supply. The facts source of must determining unappropriated water by the can be determined question [Board the quantities consideration to stated give mere matter Engineers] by of Water filings. outstanding and certified permits previ- up the amount of adding their definition persist Appellees on their ously and shown appropriated view water” is the better from the records, subtracting it thirsty urge dry They land. today in a which had of state water amount “untold waste prevent would their view the stream fur- determined previously would otherwise resources” validity to nished.” may be the sea. There into flow The a prospective Commission characterizes and that applicant Su- for [a] preme Court’s opinion in as “overly Motl can determine whether a suitable simplistic,” while the District to mini- seeks particular available a importance mize the quoted part project. (Emphasis supplied) the opinion by describing it as “somewhat Likewise, Rollins, serving A. R. while as a simplistic generally discredited dicta.” Engineers, member of Board Water suggests The District further “va- Engi- stated that Board of Water “[t]he lidity today quoted language from [of neers, present methods of operation, Boyd] Motl v. is doubtful.” recognizes appropriations on total is true that Motl has been criticized considering appli- stream when it is a new parts and some opinion Rollins, have been cation.” Need for Water overruled. Texas, See Valmont Proceedings Plantations Inventory in Uni- State, 163 Tex. (1962). S.W.2d 502 versity Texas Law Conference 67 The quoted language (1952). Motl not the presented In another paper case, holding but expression conference, it is an Bouldin, same V. W. whose Supreme few years Court knowledge highly respected, of water law is after the enactment 1917. stated that: Acts as to its understanding appro- interpreted by Under the statutes as priate process. General, Attorney the waters covered [outstanding] permits are not agencies Administrative are governed by re-appropriation until the have statutes, as construed and applied courts. Bouldin, been cancelled. V. W. The Law In this it proceeding abundantly clear Texas, Rights of Surface Water Pro- office of the Commis- ceedings University of Texas sion, court, the district or this Court (1952). Water Law Conference ignore the expression of Supreme Court v. Boyd, Motl supra, and embark Thompson, See also Public Administration construction of choosing. their own (1960). Water Resources in Texas 128 *23 The fact that now Commission has unappro- Commission’s definition of priated possesses power decided that it deter in the controversy is “unappropriated mine on departure water” based ben from the definition adhered to eficial has acted on that decision predecessors. its The Commission and supported by an appeal its not be predecessors determined the existence of contemporaneous rule construction. It by applying the Motl strange agency v. would be if an Boyd indeed could formula. For example, the 19th by mere process of construction create for Report (1948- Biennial Governor legislature itself a 1950), power had not Board Engineers, of Water given it. stated, Interstate Commerce Commission predecessor, Commission’s page Cincinnati, Co., v. N. O. & T. P. R. 167 eight: U.S. 479, 896, (1896); 17 42 243 Rail S.Ct. L.Ed. procedure obtaining permit has Atchison, road Commission v. Topeka & been made as simple possible, although Ry., (Tex.Civ.App. Santa Fe 641 S.W.2d the Board require does sufficient data to e.). writ ref’d n. r. establish, be filed to when the granted, that appropriator legal time may be has come to to a right, claim governing revise the availability the laws location to be determined. agree, All waters.” would data however, Such order law revision of the inventory continuous of all appropriations properly legislature function will show the relation of total annual agencies that of administrative n appropriations runoff annual courts. supposed “Actual deficiencies stream,

each thereby insure that the regulating laws the use of a natural [the streams do not appropriated become over . will ex- justify .. court’s resource] beyond proper sphere in order to cursion supposed a hole or cure a defect

plug things.” ex rel.

legislative scheme of v. 160 Tex. 333 S.W.2d Reyna,

Edwards Transport Pacific (1960); Southern Commission, v.

Co. Railroad S.W.2d e.); n. r. Rail

(Tex.Civ.App.1979, writ ref’d Atchison, Topeka &

road v. Commission Ry., supra. Fe

Santa and re- judgment reverse the would to the district court with

mand the cause it order the Texas

instructions hereto- to set aside the granted District. appellee

fore and T. A. MOTOR COMPANY

FORD Cadillac, Pontiac, Olds, Andrews

Inc., Appellants,

Frank NOWAK and Eloise

Nolan, Appellees.

No. 1834. Texas,

Court Appeals

Corpus Christi.

June 2, 1982.

Rehearing Sept. Denied