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HOEFS et al. v. SHORT.

(Supreme Court of Texas.

HOEFS v. SHORT
(273 S.W.)

(No. 3068.)

May 13, 1925.)

1. Evidence 10(5)-Courts judicially know natural features of the state, including general location of mountains and courses of rivers.

Courts judicially know, as matter of common knowledge, natural features of state, including general location of mountains and

courses of rivers.

2. Waters and water courses 38-Waters flowing persistently after rainfalls in welldefined channel in volume to be serviceable, held "waters of a stream," not mere surface waters.

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Waters flowing down well-defined course within well-defined watershed, not diffused over surface, and accustomed to flow with such persistency after rainfall, and in such volume as to be serviceable to adjacent landowners, held not surface waters, but "waters of a stream,' subject to appropriation, and to which riparian rights attached, notwithstanding stream flow ed but intermittently, dependent on rainfall. 3. Waters and water courses 38-Waters flowing in defined course with such persistency, frequency, and volume as to be valuable for irrigation are a "stream."

When it is shown that waters flow in a defined course with such persistency, frequency, and volume that it is both practical and valuable to irrigate therefrom, course is a "stream" to which water rights attach.

[Ed: Note. For other definitions, see Words and Phrases, First and Second Series, Stream.] 4. Waters and water courses 38-"Definite and permanent source" as necessary requisite of irrigable stream defined.

A "definite and permanent source," as a necessary requisite of an irrigable stream, means only that there must be sufficient water carried by stream at snch regular intervals as may make it practicable to irrigate from or use stream.

785

CURETON, C. J. The locus of this controversy is in Reeves county, in the arid or semiarid region, where irrigation is necessary for agricultural purposes. The parties will be designated as in the district court. Suit was brought by J. C. Short against Otto Hoefs and three others of the same name, for the purpose of enjoining them from constructing a dam in Barilla creek and diversion ditches therefrom, in such manner as to prevent the residue of the water in excess of 100 second feet from passing down the channel of the creek to the dam and ditches of the plaintiff, located below and north of those of the defendants. The injunction was granted by the trial court, and the judgment affirmed by the Court of Civil Appeals. The case is reported in 190 S. W. 802, and it is unnecessary for us to make a complete statement of the case.

The effect of the proposed constructions of the defendants would have been to take all of the water out of Barilla creek and convey it to their own lands, and to prevent Short from receiving any of the water of the stream. The primary and fundamental question is whether or not Barilla creek is a stream to which irrigable rights attach.

The plaintiff's section of land No. 58, block 13, H. & C. N. R. R. Co. survey, is crossed by Barilla creek This stream is fed by the rainfall collected within its watershed, an area of approximately 350 square miles, or about 225,000 acres, in the foothills and mountains lying south of his land. The creek runs only after rainfall, but when it runs it flows in a well-defined channel, with well-defined banks and bed, from a point south of the plaintiff's lands to a point extending below and north This well-deof his lands some distance. fined channel, banks, and bed extend up the stream from below plaintiff's lands as far as the witnesses have gone, about 70 miles. The channel is from 3 to 15 feet deep, from 40 to 100 feet wide, and, if full, would carry as much as 4,000 second feet of water. contains boulders and gravel, and but little, if any, vegetation. One witness said for 50 years it had not had enough dirt to grow For water rights to attach, it is only necesgrass. The stream flows when it rains, from sary that stream have substantial existence on claimant's property, and be of value as an ir-1 to 22 times each year, at more or less regular seasons. After rainfall it runs from "a rigable stream, and not that it shall have exday or two" to "a good while," and the waisted for any particular length of time. ter sometimes stands in holes for as long According to the testimony, Lympia Canyon runs into Barilla creek, and we infer that the creek is in reality an extension of the canyon where the latter passes out into the valley or plain. The creek sometimes has water in it when there has been no rainfall in the immediate vicinity. This water comes from Lympia Canyon.

5. Waters and water courses 38-Stream across land need not have existed for any particular length of time for water rights to attach.

Error to Court of Civil Appeals of Eighth as two weeks. Supreme Judicial District.

Suit by J. C. Short against Otto Hoefs and others. To review the judgment of the Court of Civil Appeals (190 S. W. 802), affirming a judgment for plaintiff, defendants bring error. Affirmed.

Clay Cooke, of Fort Worth, for plaintiffs in error.

It

The evidence shows that the water comes down Barilla creek in such volume that the

J. F. Ross, of Pecos, for defendant in error. whole neighborhood would have plenty of

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 273 S. W.-50

waters of a stream. 27 Ruling Case Law, p. 1137; 3 Farnham on Waters, § 878; 1 Kinney on Irrigation, § 318. We are of the opinion also that Barilla creek is a stream of such character that water rights attach to it.

water if it was divided according to the land | therefore not surface waters, but are the which each man has. The evidence is uncontradicted that the water comes down Barilla creek with sufficient regularity, one year after another, to make it valuable and useful and beneficial for agricultural purposes. One of the witnesses states that, while it does not come down on the same days each year, it comes somewhere about the same time; that the water comes when it rains; that rains generally fall, and that there are certain months when it is more likely to rain than other months. One of the witnesses testified that the water frequently comes down the Barilla when there has been no rain in that immediate vicinity, from rainfall in the mountains 50 or 60 miles above. The testimony shows that two average good overflows with what rains that fall will make good crops in the Barilla country.

[1] We judicially know, as a matter of common knowledge, the natural features of the state, including the general location of its mountains and the courses of its rivers. Chamberlayne's Handbook on Evidence, $$ 352, 355; G., C. & S. F. Ry. Co. v. State, 72 Tex. 404, 409, 10 S. W. 81, 1 L. R. A. 849, 13 Am. St. Rep. 815; Giddings v. Day, 84 Tex. 605, 608, 19 S. W. 682; The Montello, 11 Wall. 411, 416, 20 L. Ed. 191; Greene County v. Clay County, 135 Ark. 301, 205 S. W. 709, 710. We therefore know that Lympia Canyon is located in the Trans-Pecos Mountains, which are a part of the Rocky Mountain System. It rises in the Davis Mountains, southwest of Fort Davis, cuts entirely across these mountains, and flows in a northeasterly direction until it enters the syncline or trough separating the Davis and Barilla Mountains. The size and importance of the canyon as a physiographic feature is beyond question. It is a part of one of the substantial drainage systems of the mountains of

that area.

It is true that the age and size of the canyon and the fixed course of the stream within its canyon or valley walls does not establish a channel for Barilla creek at any particular locality after the canyon passes into the plain, but it does show beyond controversy that Barilla creek is a part of a stream and drainage system literally "as old as the hills," with a source of water supply as fixed and permanent as the rainfall on the watershed of Lympia Canyon

The major contention of the defendants is that the waters of Barilla creek are mere surface waters, to which water rights do not attach.

[2] It is obvious from the evidence that this defense is untenable The waters of Barilla creek are not diffused over the surface of the ground, but are accustomed to flow in a well-defined channel, in a stream, which, though intermittent as to flow, has a well

The evidence shows without controversy that Barilla creek has a substantial existence, with a well-defined channel, with banks and bed, and in times of rainfall, flowing water. The location of the channel and banks is not ephemeral in character. They were there in some form, more or less defined, in their present location, in every part of the stream, as far back as the earliest recollection of the witnesses. Certainly some parts of the present channel are very old, for no witness refers to any abandoned channels in the valley. Besides, the evidence, though brief, shows considerable age for certain sections of the channel. Its denuded condition, absence of soil and vegetation, and presence of boulders and gravel, show without question the long persistence of a current where the channel is now located. In addition to this, the witness Randolph testifies to a feature which evidences both age and stability for the channel. In part he says:

"It is a fact that along the draw below the 'U' dam and above Hoefs' dam the banks of Barilla draw immediately beyond where the draw is washed out are higher than the land further away; there is a depression on each side of the draw. The draw is on what you would call a ridge. The banks are higher than either

side."

This evidence clearly shows that the stream in the section described has the familiar natural levees made by deposition in flood time. Tarr's College Physiography (1st Ed.) p. 146; Cleland's Geology, p. 123; 1 Chamberlain and Salisbury's Geology, p. 188. This process is necessarily a slow one, and requires both stability and time for its accomplishment.

It is plain, we think, that the channel of Barilla creek is of such substantial, stable, and permanent character that its existence is easily recognized, and that rainfall on its watershed in sufficient quantities will produce a flow of water in this channel. The falls on this watershed at certain seasons evidence without dispute shows that rain with a fair degree of regularity, and it is admitted:

"That the waters which from time to time flow down Barilla draw are sufficient in volume, while not regular, to be valuable for irrigation purposes."

This satisfies every legal requirement as to permanency of source of water supply, and shows the waters of Barilla creek are not mere surface waters.

(273 S. W.)

These authorities and others which follow show that, while the rule as ordinarily expressed is that a water course must have a well-defined channel, bed, and banks, yet there may be instances where these are slight, imperceptible, or absent, and still a water course exist.

der to be a natural water course to which | Mace v. Mace, 40 Or. 586, 67 P. 660, 68 P. water rights attach must have bed, banks, 737. a current of water, and a permanent source of water supply, we have only described in detail such physiographic and meteorological characteristics as make the use of the stream for irrigation practicable. When it is once shown that the waters of a stream are so confined and persistent in their course, and flow with such frequency and volume that it is both practicable and valuable to irrigate therefrom, it is a stream to which such water rights attach.

[4] With reference to the phrase "definite and permanent source of supply of water," frequently used by the courts as describing a necessary requisite of an irrigable stream, all that is meant is that there must be sufficient water carried by the stream at such intervals as may make it practicable to irrigate from or use the stream.

Rain falls on the watershed of Barilla creek from 1 to 22 times each year, in sufficient volume to permit irrigation from the stream. This is a permanent source of supply. The watershed is permanent, the meteorological laws which cause the rain to fall there are permanent, and the stream bed, by which the waters reach the locality in controversy, is to all intents and purposes permanent. But more convincing still than these is the admitted fact that the rain does fall and run down Barilla creek in sufficient quantity, and with such regularity and frequency, as to be valuable for irrigation; and people have been for years, and are now, successfully irrigating from it. The facts as to bed, banks, and permanency of source of water supply are mere evidentiary facts that a stream can be used for irrigation or water right purposes. When the fact of utility is conceded, or established, as it is here, the stream is one to which water rights attach, regardless of variations from the ideal stream of physiographers and meteorologists. We think these conclusions arise, not only upon an application of common sense and reason to the question, but are supported by authority as well.

All authorities agree that a current of water is necessary, yet the flow of water need not be continuous, and the stream may be dry for long periods of time. Authorities supra; 1 Kinney on Irrigation, § 307; Angell on Water Courses (6th Ed.) § 4; 27 Ruling Case Law, pp. 1063, 1066, 1067.

Mr. Kinney, in the text cited (section 307), says:

"Those who are acquainted with the streams and water courses of the arid Rocky Mountain region of this country, draining as they do to steep, mountainous areas, with their swift currents running over gravelly and rocky bottoms, know that often in the dry summer months many of them are entirely dry, at least upon the surface. All of them, nevertheless, have well-defined beds, channels, banks, and currents of water, at least the greater portion of the year, and are in every respect water courses to which water rights may attach. But it would be plainly impracticable in this western part of the country to require that, in order to constitute a water course upon which rights may attach, there must be a continuous, unthe entire year, and from year to year. Hence interrupted, and perennial flow of water during the requirement of the law is that in order to constitute a water course the stream need not flow all of the time."

The general rule is that ravines, swales, sloughs, swamps, and marshes are not water courses, and yet they are sometimes.

Again, it is sometimes said that, in order to constitute a water course, there must be something more than mere surface drainage over the entire face of a tract of land, occasioned by unusual freshets or other extraordinary causes. The authorities say that this is true in its strict sense, but that surface water may collect from such a large drainage area and be so continuous in its flow as to constitute a water course. 1 Kin

27 Ruling Case Law, p. 1063.

Mr. Kinney, in section 312, says:

Various authorities have held that in order for there to be a natural water course, there must be a channel, consisting of well-ney on Irrigation, §§ 306, 312, 314, 315, 317; defined bed and banks, a current of water, and a permanent source of supply. 1 Kinney on Irrigation, §§ 303, 305, 306, 307, 312, 315, "The distinguishing feature between a ravine 317; 27 Ruling Case Law, pp. 1062, 1063, and a water course is the permanent water 1064, 1065, 1066, 1067; Rait v. Furrow, 74 supply. If there is not a permanent water supKan. 101, 85 P. 934, 6 L. R. A. (N. S.) 157, 10 ply, at least at frequent intervals, it is but a ravine; but, if there is, it is a water course. Ann. Cas., p. 1044; Jaquez Ditch Co. v. Gar-As was said in an Oregon Case: 'Where water, cia, 17 N. M. 160, 124 P. 891; Macomber v. Godfrey, 108 Mass. 219, 11 Am. Rep. 349; West v. Taylor, 16 Or. 165, 13 P. 665; McClure v. Red Wing, 28 Minn. 186, 9 N. W. 767; Mo. Pac. Ry. Co. v. Wren, 10 Kan. App. 408, 62 P. 7; Simmons v. Winters, 21 Or. 35, 27 P. 7, 28 Am. St. Rep. pp. 727, 730;

owing to the hilly or mountainous configuration of the country, accumulates in large quantities from rain and melting snow, and at regular seasons descends through long, deep gullies or ravines upon the lands below, and in its onward flow carves a distinct and well-defined channel, which even to the casual glance bears the unmistakable impress of the frequent ac

tion of running water, and through which it has flowed from time immemorial, such a stream is to be considered a water course, and to be governed by the same rules.'"

previously expressed by us. In volume 2, § 459, he says:

"Having thus determined what are the material and what the immaterial characteristics of a water course, we are in a position to arrive at a definition which will be more serviceable than some which have been adopted. A water course must have the characteristics of a flowing stream. It must have source, outlet, and channel, but all of these are more or less uncertain and undefined. The distinguishing characteristic is the existence of a stream of its existence will furnish the advantages usualwater flowing for such a length of time that

The authorities frequently say that a natural water course must have a permanent source of water supply. This, however, merely means that the stream must be such that similar conditions will produce a flow of water, and that these conditions recur with some degree of regularity, so that they establish and maintain a running stream for considerable periods of time. 2 Farnham on Wa-ly attendant upon streams of water. ters, § 457; 27 Ruling Case Law, pp. 1065, 1066; 1 Kinney on Irrigation, § 306.

The

courts have attempted to describe this condition as a stream usually flowing in a definite Mr. Farnham; in his work on Waters and channel, having bed and sides or banks, and Water Rights (volume 2, § 457), says:

"The source of the water which flows in a channel claimed to be a water course is a much more satisfactory test than is the presence or absence of channel. It has been said that to constitute a water course there must be something more than surface water. This, however, is not strictly true, for the surface water may collect from so large an area of country and be so continuous in its flow that it takes upon itself the character of a water course. But to constitute a water course there must be a supply which is permanent in the sense that similar conditions will always produce a flow of water, and that the conditions recur with some

degree of regularity, so that they establish
and maintain for considerable periods of time
a running stream.
The stream need
not flow continuously in order to constitute
a water course. As said in Parke County
v. Wagner, a water course is a living, per-
manent, or continuous stream of water, con-
fined in a channel having a bed and banks, but
not necessarily flowing all the time, or even
a greater portion of the year, if in fact it has a
supply of living water, although that supply
need not be sufficient at all times or most of
the time to flow the entire length of the chan-
nel, and need not necessarily empty into some
other stream or body of water, but may sink
into cavities or be absorbed by rapid percolation
into a bed of gravel or soil."

The meaning of the phrase in the definition quoted to the effect that the source of water supply must be sufficient to "establish and maintain for considerable periods of time a running stream" must be understood in the light of Mr. Farnham's previous statement (section 455, p. 1557), to the effect that:

"A water course must be a stream of such a character as to give persons owning land upon it the right to have it maintained for the benefits which flow to them from the advantages of a natural flowing stream.

*

After having reviewed at some length the contrariety of definitions made by the courts in discussing the subject of what is a natural stream to which irrigable rights attach, Mr. Farnham arrived at a conclusion sub

usually discharging itself into some other stream or body of water." (Italics ours.)

Mr. Farnham quotes with approval the opinion of the court in the case of Arthur v. Grand Trunk R. Co., 22 Ontario Appellate Reports, 89, as follows:

"A water course must always have some point of commencement, and it may not be quite easy in every case to say just precisely where that point is. If a stream is traced up towards its source, a point will always be reached where it ceases to be definable by a bed and banks; but until that point is reached it must be a water course, whether its origin be a spring or several springs, or the rain or snowfall of a district collected naturally and flowing away for the first time in a visible course or channel. All our lakes, rivers, and streams have their source in the clouds of the

sky, precipitated in the form of rain or snow;

and the sole question in every case is whether self a visible course or channel, and is of sufthe water thus precipitated has formed for itficient magnitude or volume to be serviceable to

the persons through or along whose lands it flows. It is immaterial that it may be intermittent in its flow, or that at certain seasons of the year there may be little or even no flow of water." (Italics ours.)

The author of the note to the case of Harrington v. Demaris, 1 L. R. A. (N. S.) 756, states that the definition of a water course given by Mr. Farnham, to the effect that its distinguishing characteristic is the existence of a stream of water flowing for such length of time that it furnishes the advantages usually attendant upon stream of water, is the logical conclusion, which has been adopted by a majority of the cases.

We therefore hold that Barilla creek under the undisputed evidence and admitted facts meets all the requirements of a natural water course to which water rights, whether riparian or by appropriation, attach.

It is unnecessary for us to discuss the validity of the water appropriation acts, or the conflict, if any, between these laws and the law of riparian rights. The plaintiff had complied with the appropriation acts, and, in addition, his land was clearly riparian.

(273 S.W.)

92-Private rights

vested by discretionary action of executive officer cannot be annulled by him.

When rights of private parties have become vested by discretionary action of an executive officer, neither he nor his successors can annul such rights.

3. Schools and school districts 80 (1)—Approval of text-book contract by state board of education held waiver of irregularities in execution.

The approval by state board of education of text-book contract, legally entered into by enforcement by state superintendent of pubstate text-book commission, and ordering its lic instruction, renders such contract valid and binding, thereby waiving any irregularities in its execution, and state superintendent is precluded from contesting its validity because of any such irregularities.

relief. He predicated his cause of action up- | 2. Constitutional law
on the appropriation acts, but his pleading
does show that his land is crossed by the
stream, and he prayed for an injunction and
for general relief. No contention is made
that plaintiff was not equitably entitled to
the amount of water claimed by him, if Bar-
illa creek is an irrigable stream. We have
therefore concluded that since at all events
the injunction properly issued, it is unneces-
sary to discuss the merits, or conflicts, if any,
of the two water right systems in this case.
[5] There is no merit in the contention
that Barilla creek did not cross plaintiff's
land in 1874, when the patents were issued
to defendants' land, and that therefore plain-
tiff has no right to the waters of the stream.
The evidence shows beyond question that the
stream crosses plaintiff's land now, and has
been flowing across it in a well-defined chan-
nel for many years. The record likewise
shows that, when first seen by the witnesses,
as early as 1884 or 1885, there was a chan-
nel, though not so well defined as at the
present, across it. There is therefore no
basis of facts for the defendants' legal con-
tention as to effect of the absence of the
stream on plaintiff's land in 1874. Besides
it is not necessary for water rights to attach
that the stream way should have been across
his land any particular length of time, if the
stream now has a substantial existence, and
is of value as an irrigable stream. Rait v.
Furrow, 74 Kan. 101, 85 P. 934, 6 L. R. A.
(N. S.) 157, 10 Ann. Cas. 1044, 1046. See, also,
1 Kinney on Irrigation, § 639; 2 Farnham on
Waters, § 491; Wholey v. Caldwell, 108 Cal.
95, 41 P. 31, 30 L. R. A. 820, 49 Am. St. Rep.
64.

4. Mandamus 79-Schools and school districts 85-States 191 (2)—Mandamus lies against state superintendent of public instruction to perform text-book contract; duties of superintendent of public Instruction required by law and ministerial; mandamus against superintendent of public instruction not suit against state.

The duties of state superintendent of pubtract, finally approved by state board of edulic instruction in performance of text-book concation, are required by law and are ministerial, and mandamus will lie to compel his performance, and such a suit is not one against the state.

5. Mandamus 84-That performance of ministerial act results in performance of contract does not preclude issuance of mandamus.

That performance of ministerial act required by law results in performance of a contract The judgments of the district court and is no reason why mandamus will not issue to Court of Civil Appeals are affirmed.

LAIDLAW BROS., Inc., v. MARRS, State
Superintendent of Public instruction.
(No. 4383.)

(Supreme Court of Texas. June 8, 1925.)

I. Schools and school districts 80(1)—State board of education's approval of text-book contract final, and cannot be thereafter set aside by it.

Action of the state board of education in establishing the identity and validity of contract for text-books, legally made by state textbook commission, and ordering its performance by state superintendent of public instruction, under Vernon's Ann. Civ. St. Supp. 1922, arts. 29044 and 290441, is final and con

clusive, unless set aside under Vernon's Ann.
Civ. St. Supp. 1918, art. 2909n, by proper
judicial action, for sufficient legal reasons,
and cannot thereafter be annulled or
aside by board.

set

require such performance.

Petition for mandamus by Laidlaw Bros., Inc., against S. M. N. Marrs, State Superintendent of Public Instruction. Writ granted. D. K. Woodward, Jr., of Austin, for relat

or.

Dan Moody, Atty. Gen., and Wright Morrow, C. A. Wheeler, and L. C. Sutton, Asst. Attys. Gen. (W. G. Love, of Houston, of counsel), for respondent.

PIERSON, J. Relator seeks a mandamus against respondent to require him to do and perform the ministerial or statutory duties which it has a legal right to have performed in regard to its contract with the state for the purchase of certain text-books, to wit, "Our Government," Davis and McClure, regular edition, by the state, and the furnishing of them by it to the state under the terms of its said contract and the provisions of the statutes.

Without reciting each detailed step in the process of entering into and execution of the

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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