Honorable P. K. Birdwell, President 

Sabine-Neches Conservation District 

Tyler, Texas 

Dear Sir: Opinion No. O-2403 

Re: The Sabine-Neches Conservation District has authority to construct a reservoir 

to impound the natural flow 

of the Neches River for the 

purpose of making such fresh 

water available to dilute salt 

water flowing and seeping into 

the streams from the Eaet Texas 

011 field. 

We haye your letter of May 22nd calling for our opinion on the power 

of the Sabine-Neches Conservation District to construct a reeervoir primarily 

for the control and dilution of salt water, now being put into the tributaries 

of the Iieches River in an unregulated manner. There ape several thousand oil 

wells located on the Neches River Uaterahed, many of which now produce salt 

water and all of which are potential producera of salt water. We understand 

that an artificial reservoir a8 contemplated by your district if built acroaa 

one of the upper trlbutarlee will enable you to dilute most of the present 

and potential production of salt water in such manner a8 to maintain the salt 

solution of the Neches River below a point harmful to the uses to which the 

water Isi ordinarily put. Your district was created "to coneerve, store, control, preserve, utilize and distribute the storm and flood waters and the waters 

of the rivers ana streams of the State, and such powere as may be contemplated 

and implied by the purposes of this provision of the Constitution and a6 may 

be conferred by general law, as well as by the provisions of this Act," (Sec. 

1, Chapter 97, Gen. Iaws, 44th Leg., Reg. Sees., S. B. No. 361). Section 59 

of Art. 16 of the Constitution is the reference made In the statute to the 

Constitution. Section 59(a) of the Constitution provides: 

"The conservation and development of all the natural reaourcee of thia atate including the control, storing, preservation and dietribution of its storm and flood waters, and waters 

of ita rivers and streama, for irrigation, power, and all other 

useful purposes, the reclamation and irrigation of its arid, 

semi-arid and other land8 needing irrigation, the reclamation 

and drainage of its overflowed lande, and other land! needing 

drainage. " (Italics ours) 
Honorable P. K. Birdwell, Page 2 (O-2403) 

Section 59(c) of the Constitution providea in part, 

“The Legislature ahall suthorise a&l ruch lndebtednem aa 

msy be neceerary to provide all improvementr and the ~intanancs 

thereof raquieite to the achievems~t of the purpo#er of thir 

aaadment, end all rucb indebtednear my be evidenced by bondr 

of euch conremation and reclamtiou district to be iyued under 

euch regulation8 aa n+y be prercribed by law . , .” 

Section l of 8. B. 361 providen: 

” 

. I . Said district rhall hsve and be recognlmd to exrrcirr all the rlghtr and power8 of an~iadepen@nt govornzrantrl 

agmcy, body politic and corporate, to conrtruct,, maintain and 

operate, in tha valleyr of the Sebine u&d Nechea Rlrorr md 

their trlbutrrirr, within or without the boundarima of ruch 

dlrtrict, my and all works deemed emential to the operation 

of the dirtrict and for itr admiairtratio~ in the control, 

boring, prerervatior’md dlrtributlon to all uraful purporar 

of the w&err of the Sabina and Nechea Rivrrr and their trfbutary rtreaum, Including the rtom end flood w&err thereof.” 

Dx the face of a finding on the part of the S@bine-I?echar Conmrvrtion Dirtrict Board, that the com$ruction of the rubjrct dam or rerervoir 

ir a function erientlcrl to the operation of the dlrtrict in rtoring the water1 

for a weful purpom, it 11 our opinion the dirtrict undoubtedly l&se the authority to conrtmct raid rerervolr. We are told that thir finding ii bared 

upon the fact1 that the water0 of the river are wed for the irrigation of 

revere1 thourand acrei ol rice landrj for the domertic rupply of rovers1 citieej 

and for variour lndurtrial purporen. The malt mter in the river prerently 

conrtitutes e menace to theie unei which woul$ be eliminated by the reremoir. 

The rtatute clearly ret1 forth the power of the Board to comerve water for 

the purpore of Irrigation and 411 othbr useful purporea. The conrerving of the 

frerh water to dilute the r8j.t watef lr unquertiombly a coxuervatioa of the 

Hecher River waterr In aid of irrigation pnd much functioni rimredly fall 

within the genersl claure “all other useful purpoaei”. 

Your recond quertlon ii whether the dlrtrict her authority to me 

raid portiona of Johnron.end Bowlei Creek channeli an carrierr for the rrlt 

water dlrcharga from the welli to the remrvolr. Johnron and Bowlei Creek 

channeli are tributarier to the Bechqr River water ryrtem, and whsstioever 

power the dirtrlct har extenda to theee tributarlee, LI Section 1 of the itatute dercrlber the poweri an extending to “the waterr of the Beblne and Hecher 

River8 and their tributary atreaM”. Subnection (1) of Section 13, 8. B. 361, 

provides: 

“The right of eminent domain ir exprerrly c+ferred upon 

such dirtrlct to enable it to acquire the fee aimp title to 

and/or eaeement or right-of-way over end through, any and all 

lande, water or landr under water, private or public, within 
Honorable P. K. Birdwell, Page 3 (O-2403) 

and without such district, necessary or convenient to carry out 

any of the purpoees and powers conferred upon such dietrict by 

this Act." 

Accordingly, if the district deems it necessary or - convenient to 

carry out itrr purporem, it may condemn and ure the channelr of Johnnon and 

Bowler Creeke. Inrofar aa the proposed reservoir would back water up there 

tributarierr, the dietrict would be obliged to condemn the channela, and water 

right8 adversely affected. The dietrict would not be obliged of neceaeity 

to condemn the channels at points above the back water of the reservoir. The 

use of such portions of the channels would be by the operators disposing salt 

water into the streame, 88 distinguished from uBe by the conservation district. 

However, it would appear that if the distrik should conclude it convenient 

to its purposes to condemn the channels and water rights at such points, it 

could under its statutory authority do eoO 

Your third question requests information on the "type and legality 

of securities which would have to be issued by the district." You state that 

the aecuritiee would have a8 collateral a group of contracts between the individual operators and the district, providing for the payment of a monthly 

trervice charge. The contracts in turn .to form a sound basis for financing, 

would no doubt have to provl.de for a lien on the properties of the operators 

involved, securing the payment of the charges. This is 80 because the power 

IS specifically withheld from the disi;rict. Bowever, subsection (m) of Section 13, S. B. 361, provides: 

"The Board of Directors of said di.strict shall prescribe 

fees and charges ,to be collected for the use of water, water 

connections or other ser~l,ce which fees and chargee shall be 

reasonable an.:1 eqxitable'fully sufficient to produce revenues adequate to pay, and said Board of Directors shall cause 

to be paid therefrom: (specifically enumerated purposes)." 

(Italics ours) 

o 

Sections 17 through 303 excepting 25, of S. B. 361 govern the iseu- 

@nce of obligations. Insofar a8 the proposed securities would be secured by 

contracts between the individuals and the district, the 6ame would appear to 

be legal, and the district is at freedom to provide any type of security not 

in conflict with the specific provisions of the sections of the law referred 

to. As Secti.on 30p S. E. 361, provides: 

"This Act without reference to other statutes of the 

State of Texas, shall constitute,full authority for the authorization and issuance of obligattons hereunder . . ." 

Your fourth question in effect is, whether operators not presently 

disposed to contract with the district may be forced to diecontinue disposal 

of salt water into the streams, or be forced to enter into a contractual relationehip with the district. As "a practical matter in the event an injunction would issue against such an operator, he would probably be forced to 

G c * 
Honorable P. X. Birdwell, Page 4 (o-24.03) 

contract with the dietrict, however, there is no legal method for forcing such 

an operator to contract with the district. Regarding the issuance of an lnjunction a8 against such en operator, we shall amme that tie would preaently 

be subject to an injunction dl.sallow9lg further d.ispoesl of eslt water into 

the etream. Such an injunction would l.seue by reamon of the aggmgete dieporal 

now constituting a nuirance. After ,the rerervolr l.m built, it ir our opinion 

that ruch operator could not take advantage of the facllitlae offered by the 

dietrlct without payment therefor, not,,wl.th.atar.ding b.1.n in,divl.&usl actr would 

not in and of themealvsa Conetttute a naiee~~e. our courts have recognized 

a measure of joint reeponsibllity ancong col;trlb:ltorr to a nu:eance. Equity 

in prevention of a nuisance ,11111. enjo:l,r! a el.ngle actor even though hir mingle 

contribution does not conrtitute the UII~.EW~~X. The actora my be mod mevsrally or they may be joi,ned. In. 46 Car. i!ur. p. ‘781, Sec. 395, It im raid: 

“Where aavsral pareone coutrihutc: $0 t,hr crcntl,on. of A rruimanta, they may bo joinsd 1.11 A su!,t to abate ttra maam, Alt;hough 

eAC'h tranractm him 'bu#i,naar, frcm uhl.ch the ndiranco flowr, IMparatsly and wi,thout my comcet;lm w,r.t,h. the othkrl, and there ir 

no joint ~lntant or joM action,i b’!iL im,dcr au& c,Lrcumrta,ncan I:t 

ir not nacerlary that.; all perro*l.s c0atributi~a.g to the nul~ance 

rhould ‘bo joined &I defendanta.” 

A principle of the Ceez of Bartholomew v, Stipe (Corn. App.) 251 8. W. 

1031, ir pertinent regarding the rerpocsi,bility of in,divlduuaJly Acting COntributora to a nuisance. In that cam t,hr$e defendarts owned a rtagnant pit and 

a complainant eucceeefully sought en i~:~.junctior~. ,to have the p1.t drained. One 

of the defem3.anta proceeded to have it dral.r:.ed and incurred an expenlre of $300.00. 

On appeal the Judgment required the &her r?efr?n,dantrr to contrfbute to the expense. 

The court of equity hare aeeumd jurlsdictI,oa. properly to allocate the burden 

among the contributora to the nuiaame. Can ft bn 18al.d Mat became one or 

two of the con.tributora had dra,i.ned +.klr respmztl,ve amounte of water that the 

remini.ng con.tribut,lons, beLng i,r1.con.seij~1,eri~?,S~,1., ~0~l.d n.0t be anjol.nea, or if 

dminsd, that they would n,ot have to pay for earvice. Judge German, in the 

B~rtholoumw came (nupra) , sal,C: 

“Being an nqultable proceedl.rtg, thr court, having acqul.red 

jurisdiction for t.ha purpoee of abating the n,u~Lran.ce could properly edj'uet ali. difference8 b:ctwoen. ~the partlea, to the extent 

of adjudging who wan the real wro.n.g!ioe,r 1.fall. were not’ culpable,, 

and decreeing en equita’b1.e r:or!t.rl,bld!,o-r bct,ween t’hoal: wh.o bad 

been required to incur expenses and. comta for the benefit of all 

in Abating the nlLl.eanCe." 

Where certain of the defendan.t,a, for t;he benef:l.t of all., have undertaken preventive meamree to nlinakat,e tke nu !.ea:mce, we do not. bel,ieve the 
Honorable P. K. Birdwell, Page 5 (O-2403) 

remainder may cp-kinue to add their reepectlve portions of water to the etagnant pool, nor in thin inrrtsnce, oalt water to the rivers even though their 

singular acts would not comtitute a nuiaaece. 

Yours very truly 

APPROVED JLJL 25, 1940 

Id Gerald c. Mann 

ATI'ORNEX GENEPxALOFTEiAS 

AVORNEY GENERAL OFTEXAS 

By /is/ Hugh Q. Buck 

Hugh Q. Buck 

Assistant 

HQB:BBB:IM 

APPROVED 

OPINION 

COMMITTEE 

BY /8/ BUB 

CHAIRMAN