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In re Adjudication of Water Rights of Upper Guadalupe Segment etc. - 642 S.W.2d 438 (Tex. 1982)

Rule:

Riparians, whose land grants were acquired before July 1, 1895, have a vested right in the use of the non-flood waters, but that vested right is to a usufructory use of what the state owns. A usufruct has been defined as the right to use, enjoy and receive the profits of property that belongs to another. Texas holds the title to the waters in a navigable stream in trust for the public. Many decisions have held that the riparian rights to waters were vested at the time the lands to which they are appurtenant were granted, if granted before July 1, 1895. Riparian rights are an incident of the land ownership. After notice and upon reasonable terms, the termination of the riparians' continuous non-use of water is not a taking of their property. The state, in administering its water resources, is under a constitutional duty to conserve water as a precious resource. The riparian's vested usufructory right, like a permittee's vested right is the right to use the resource beneficially -- not waste it.

Facts:

The trial court's adjudicated water rights under the Water Adjudication Act of 1967, which recognized the riparian right to domestic and livestock uses, and irrigation usage during any year of the statutory test period from 1963 to 1967, but recognized no riparian rights for lands granted after July 1, 1895. The Texas Water Commission (Commission), acting under the Water Adjudication Act of 1967 (Act), Tex. Water Code Ann. §§ 5.301-5.341, determined the water rights of landowners. Nineteen parties excepted, and, after hearing additional evidence, the trial court made final the adjudication. The judgment recognized the riparian right to domestic and livestock uses, and irrigation usage during any year of the statutory test period, but recognized no riparian rights for lands granted after July 1, 1895. The Texas Court of Appeals, Bexar County, Fourth District, affirmed the trial court's judgment. Several parties petitioned for further appellate review.

Issue:

Did the Water Rights Adjudication Act violate the separation of powers?

Answer:

No

Conclusion:

The court affirmed the judgments and held that the Act did not violate the separation of powers because the Act mandated an automatic and mandatory judicial review, and the trial court acted independently of the Commission. The court also held that the Act was not an unconstitutional taking because, after notice and upon reasonable terms, the termination of the riparians' continuous non-use of water did not constitute a taking of their property.

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