Valmont Plantations v. State
355 S.W.2d 502
Tex.
1962
Check Treatment

*1 Court, pending other decisions. In numerous I deem view proper my than to write at this time rather views to. merely note a concurrence. April al, et

Valmont Plantations Petitioners Respondents al, Texas February No. Decided A-8465. Rehearing April 11, Denied 2d 502 dissenting. GRIFFIN,

ASSOCIATE JUSTICE *2 City, Nye, Vale, Pope Pope, A. F. Randall Rio J. & Grande Austin, Lowe, et al. L. Hamilton for Plantations Valmont Yznaga Dun- Ray, Brownsville, Cunningham, & Ransome & can, Brownsville, R. F. et Breeden al. Pickens,

Strickland, Mills, Mission, Wilkins, Hall for W. L. & Trustee, et al. Mission,

Strickland, Mills, Wilkins, Hall Bell & Everett al. Wilson, Austin, Atty. Gen., Houghton Brownlee, Jr., Will Wayland Rivers, Asst., Assistant, Spec. Kent, George, Brown & Ferrero, Harlingen, Haigh, Edinburg, Gibbon, A. Klein G. & Hubbard, Donna, Mercedes, Harlingen, Vollmer, Truett J. D. Smith, Weslaco, Kelley, Looney, Jenkins, McLean Mcllheran & Elkins, Searls, Littleton, Vinson, Houston, Edinburg, Weems & Jackson, Smith, Edinburg, Robertson, Payne, Sawnie B. Lan- Dallas, Kin, Mission, Walker, caster <6 Hill & for State of Texas et al. Moore, LaFeria, respondents.

E. H. for other ROBERT HAMILTON delivered ASSOCIATE JUSTICE W. opinion the Court. of riparians. appropriators and It is This is suit between grants whether, specific of

class action to determine absence grants along irrigation waters, Spanish and Mexican Rio irrigation rights. appurtenant Grande River have assert The and numerous water districts grants original appropriators, lands out of the and the owners of commonly riparian rights. called assert similar to those although opinion that it that The trial court held riparian rights irrigation, carry did not with them Boyd, 116 Texas the case of Motl v. was bound grants along lower and that the Rio held irrigation. implied rights carry did with them Appeals reversed the Court Civil appropriators, judgment for hold- trial rendered ing original Spanish that Mexican irrigation. carry implied did not them made 2d 853. In so that court determined statements contrary by way Motl not stare of dicta in v. were question. affirm. decisis of We Appeals Pope Mr. Justice exhaustive and well documented. believe it serve We good purpose subject

no than to to write further on other binding out that effect of certain state problem presents ments contained Motl v. different applied Appeals when to a Court of Civil than it does when applied Murray to this Court. The dissent of Justice Chief largely proposition based Civil Boyd, is bound follow dicta in Motl contained *3 regards being judicial which he as in nature. text state We find purport by ments which are similar in to the thesis asserted the pointed Corpus Chief It Justice. is out in Juris that: Secundum commonly “It only held that a decision is authoritative questions decide, necessary which it was to and were in- volved, issue, However, or in in the case. inferior courts have by been held actually bound decision on a determined by appellate though an court even the decision thereof was not necessary C.J.S., to Courts, the determination of the case.” 21 190, p. Sec. 382. also, C.J.S., Courts, p.

See Sec. as to statements by way guidance made of dicta the lower of courts. granting the With of the writ of error in this case the

question of Appeals whether of Civil should have fol- lowed the dicta Motl v. became academic. The now relates to by the action which should taken this court be reference to apply reasoning such dicta. When we of Mr. relating Pope (346 Justice to the doctrine of stare decisis 878) Court, Supreme inescapable. the answer is Such disposition dicta should not control our of this case. In Vidal Executors, v. Supreme Girard’s Ed. How. 11 L. (opinion by Story) Court of the United States Mr. Justice re- “strong chancery jurisdiction examined as additional light through subject” had been thrown historical re- search. unnecessary

As further pretermitted. discussion is it will be is affirmed and the adopted Supreme opinion of that court Court. February

GRIFFIN, JUSTICE, dissenting. diligent by After search I no means authorities am Spanish convinced and Mexican is as declared law majority opinion. commonly fact, accepted I find that the practices colonizing Valley of those the lower Rio demon- Grande riparian right strate that since the had the 1700’s owners have to use lands. the waters of the Rio to Grande Irrigation necessity was a if the colonists were to exist and right long recognized, prosper. this has I Since so been gives Spanish follow and Mexican which that branch right irrigation riparian owner. Boyd, The decision in Motl (1926) recognized property established rule of well many riparian which millions of dollars invested have been Valley. lands reiterated and in the lower Rio That case previous affirmed what had regarding announcement of this been exception, riparian but one owners. With rights, beginning Legislature pertaining all acts recognized continuing date, specifically have with 1889 protected owners. *4 in grave pronouncements It that the is a mistake to hold only judicial This dicta. Motl v. are obiter dicta rather than urged strongly (p. on 463) it in that case said that was riparian deny applicability doctrine the court to rights the of the navigable said: statutory natural streams. or * “* * and so much force course is insisted with so This investigate sub- earnestly the whole that concluded to we have applicable purpose, can, ascertaining rule ject toe if state, harmonizing decision statutes and and of our (All rest, setting can, involved.” in so as toe at far contrary throughout emphases are mine unless this writing thorough of the shown.) is Then after discussion * “* * said, 465) (p. : In view of what this court the authorities clearly Law, we are have cited Hall’s Mexican we believe we from that, law in Texas saying so far as Mexican in in warranted is recognized concerned, distinctly was one which right land,” riparian which includes owners crops. their discussing January 20, 1940, adopting com- the Act of decision, (p. 466) said,

mon : “In the rule of the court grants concerned, far as so colonization this act of the were Republic recognition a distinct was of the laws which grants made, Republic by were and a declaration of Texas grants recognized that these and the thereunder would be they made, and carried forward under the laws under which were riparian were, seen, included in which we have owners.” Summarizing holding says: its in that cause the court “* * * whole, proper say On the we think it from appro- Mexican passage decree of 1823 down to of our priation state, act policy the fixed of this under all governments, Mexico, of its several that of Coahuila and Texas, Tamaulipas, Republic Texas, and the and state of was recognize right to only riparian water, of the owner to use use, irrigation for his domestic and household but as well.

“What we have thus far predicated upon said has been history subject, interpretation laws, and an decrees, and however, the acts construction, involved. The harmony court, with the appear decisions this which to us to riparian rights have settled the to the use of the irrigation waters of the streams of the state for purposes part were a of land when the were Clements, made. Watkins Land Co. v. 98 Texas Rep. 653; 70 L.R.A. 107 Am. St. Board of Engineers McKnight, Water 301; 111 Texas 229 S.W. Burr, Martin v. 543.” holding This owners a clear and direct this Court that right irriga- had the to use the waters of stream for purposes prior tion appropriation act of 1889. Motl v. which declared that right owners had a vested to use the water from the stream for

irrigating crops recognized and affirmed in the Chicago, Ry. County R. I. & G. v. Tarrant Co. Water Control *5 Improvement 55(9), Dist. No. 123 Texas 73 S.W. 2d (1934) State, and Heard v. 146 Texas 204 S.W. 2d 344 (1947). rights principle Thus we see that the of the owners to use the stream waters to as set out in Motl unquestioned by It has in 1926 has this Court. been it. property, and is a rule and I not overrule become wotild uncertainty majority and The decision confusion and creates rights uniformity landowners results in a lack of as between majority on the same stream as well as on different streams. The recognizes principle in owners irrigation. Many common law to use stream waters for longer common our streams in Texas on their both have banks grants. same, law and law civil The should be following up these what has been the law to this decision possess would continue thus main- to have and same taining impractical uniformity. majority decision creates an along major patchwork rivaling applicable most of our streams variety. quilt for Grandma’s objection majority opinion is that it The most serious time, present uncertainty at the creates an as to what the are laws prin- although prior unequivocably rules and cases have set forth any ciples attorney clients with of law. How can an advise his rights? certainty majority overthrows as to Here the the client’s unambiguous a solemn forth in clear and declaration of law set language attorney can afford to in Motl v. in 1926. What establishing his clients in the face of clear declarations advise law, property a are but rule of that such declarations not binding? responsibility obiter dicta of this Court and not law, interpretation well as to maintain a consistent as justice people to render The confidence of the its decisions. legal profession lightly, of Texas is treated nor the not be holding. put lasting particular doubt as to the effect of Royalty This said in v. Humble Oil & Southland Co. Refining Co., (1952) : suggest may respondents “It a re-exam- noted here that be George theory ination of the Parker and executing jointly the courts general to lessors should attribute lease, more, pool form without an intent to or unitize general properties; language form lease operate pooling agree- never intended effect or to argument entirely unappealing. ment. This is not The Texas application. respect rule in this is not of See universal hand, seq. A.L.R. On the other the lato the Parker George property cases have now become a rule changed state and should not be absence other con- circumstances, trolling though good might even reasons be

387 given holding.’ et ux v. National Tanton different al., Bank 2d 833.” of El Paso 79 S.W. Meyer, App., 1932, Thomas Texas 168 S.W. Civ. 681, 685, history, no writ is said: holdings upon probable

“It seems more to assume guidance point deliberately here involved were made for the statutory bar construction bench and therefore, Supreme It, not theretofore considered Court. holdings seems that these at least be considered as must * * *” judicial dicta rather than mere obiter. Valley present lower Rio attained its state has development riparians under the the flow to use

of that stream to their fertile fields and orchards. It rights, develop should be allowed continue to under such sub- ject recognized rights prorate court to the water drought. in times of extreme I practices accepted overthrow and understand-

ing generally owners which have been accepted nearly years.

For an academic discussion on this matter see “The Texas Flowing Irrigation Law of Special Reference to Waters from Grande”, the view, Canales, Lower Davenport Baylor Rio Law Re- VIII, 3, p. 283; Development Vol. No. of the Texas Water, Law of Vol. Vernon’s Annotated Texas Civil Statutes. I would reverse the judgment. affirm the trial court’s February 14,

Ex Parte Richard H. Godeke A-8808. No. Delivered March Rehearing April Denied S.W. 2d