Honorable P. K. Birdwell, President

Sabine-NechesConservationDistrict Tyler, Texas

Dear Sir: Opinion No. O-2403 Re: The Sabine-NechesConservation 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-NechesConservationDistrict to constructa reeervoirprimarily for the control and dilution of salt water, now being put into the tributaries of the Iieches

River in an unregulatedmanner. 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 saltwater. We understand that an artificial reservoir a8 contemplatedby your district if built acroaa one of the upper trlbutarleewill enable you to dilutemost of the present and potential production of saltwater in suchmanner a8 to maintain the salt solution of the Neches River below a point harmful to the uses to which the water Isi

ordinarilyput. Your districtwas created "to coneerve, store, control, preserve, utilize and distributethe storm and flood waters and the waters of the rivers ana streams of the State, and such powere as may be contemplated and impliedby the purposes of this provision of the Constitution and a6 may be conferredby 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 referencemade In the statute to the Constitution. Section 59(a) of the Constitutionprovides:

"The conservationand development of all the natural reaourcee of thia atate includingthe 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-aridand 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,

“TheLegislature ahall suthorise a&l ruch lndebtednem aa msybe neceerary to provide all 

### improvementrandthe ~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 andreclamtiou district to be iyued under 

### euch regulation8 aa n+ybe prercribed by law

. , .”
Section l of 8. B. 361providen: ”

. I

. Said district rhall hsve andbe recognlmd 

### to exrrcirr all 

### the rlghtr 

### andpower8of an~iadepen@nt govornzrantrl agmcy, body 

### politic andcorporate, to conrtruct,, maintain and operate, in tha valleyr of the Sebine u&dNecheaRlrorr 

### md their trlbutrrirr, within or without the boundarimaof ruch dlrtrict, my and 

### all works 

### deemedemential 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 

### andNecheaRivrrr and 

### their trfbutary rtreaum, Including the rtom end flood w&err thereof.”
Dxthe face of a finding on the part of the S@bine-I?echarConmrvrtion Dirtrict Board, that the com$ruction of the rubjrct damor 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. 

### Weare told that thir finding ii bared uponthe 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 maltmter in the river prerently 

### conrtitutes e menaceto theie unei whichwoul$ be eliminated by the reremoir. 

### The rtatute clearly ret1 forth 

### the power of 

### the Boardto comerve water for 

### the purpore 

### of Irrigation and411 othbr useful purporea. 

### The conrerving of 

### the frerh 

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

### the HecherRiver waterr In aid of irrigation pndmuchfunctioni 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, andwhsstioever power 

### the dirtrlct har extenda to theee tributarlee, LI Section 1 of the itatute dercrlber the poweri an extending to “the waterrof 

### the Beblne andHecher River8 andtheir tributary atreaM”

. Subnection (1) of 

### Section 13, 8. B. 361, provides:

“The right of eminent domainir exprerrly c+ferred upon such dirtrlct to enable it to acquire 

### the fee aimp title to and/or eaeementor right-of-way over endthrough, any andall lande, water or landr under water, private or public, withinHonorable P. K. Birdwell, Page 

### 3 (O-2403)

and without such district,necessary or convenientto carry out any of the purpoees and powers conferredupon such dietrictby this Act." Accordingly, if the district deems it necessary or - convenientto carry out itrr

purporem, itmay condemn and ure the channelr of Johnnon and Bowler Creeke. Inrofar aa the proposed reservoirwould back water up there tributarierr,

the dietrictwould be obliged to condemn the channela,and water right8 adversely affected. The dietrictwould 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 channelswould be by the operators disposing salt water into the streame, 88 distinguished from uBe by the conservationdistrict. 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 statutoryauthority do eoO

Your third question requests information on the "type and legality of securitieswhich would have to be issuedby the district." You state that the aecuritieewould have a8 collaterala group of contractsbetween the individual operatorsand the district,providing for the payment of a monthly trervice

charge. The contracts in turn .toform a soundbasis for financing, would no doubt have to provl.defor a lien on the properties of the operators involved, securingthe payment of the charges. This is 80 because the power IS specificallywithheld 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 shallbe reasonable an.:1

eqxitable'fully sufficientto produce revenues adequate to pay, and said Board of Directors shall cause to be paid therefrom: (specificallyenumeratedpurposes)." (Italics ours) o Sections 17 through 

### 303 excepting 

### 25, of S. B. 

### 361 govern the iseu- @nce of obligations. Insofar a8 the proposed securitieswould be securedby contractsbetween the individualsand the district, the 6ame would appear to be legal, and the district is at freedom to provide any type of securitynot in conflictwith the specificprovisions of the sections of the law referred to. As Secti.on



### 30p S. E. 

### 361, provides:
"ThisAct without reference to other statutes of the State of Texas, shall constitute,fullauthority for the authorization and issuance of obligattonshereunder

. . ."

Your fourth question in effect is, whether operatorsnot presently disposed to contractwith the districtmay be forced to diecontinuedisposal of saltwater into the streams, or be forced to enter into a contractualrelationehipwith the district. As "apracticalmatter in the event an injunction would issue against such an operator, he would probablybe forced to
G c *Honorable P. X. Birdwell, Page 4 (o-24.03)

contractwith the dietrict, however, there is no legal method for forcing such
an operator to contractwith 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 esltwater into the etream. Such an injunctionwould l.seue by reamon of the aggmgete dieporal
now constitutinga nuirance. After ,thererervolr l.m built, it ir our opinion that ruch operator could not take advantage of the facllitlae offeredby the dietrlctwithout payment therefor, not,,wl.th.atar.ding b.1.n in,divl.&uslactr would not in and of themealvsa Conetttutea naiee~~e. our courts have recognized
a measure of joint reeponsibllityancong 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 contributiondoes not conrtitute the UII~.EW~~X. The actoramy be mod mevsrally or they may be joi,ned. In. 46 Car. i!ur.

p. ‘781,Sec. 395, 

## It imraid:

“Where aavsral pareone coutrihutc: $0 t,hrcrcntl,on.

of A rruimanta, they may bo joinsd 1.11 A su!,t

to abate ttramaam,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 ‘bojoined &I defendanta.”

A principle of the Ceez of Bartholomewv, Stipe (Corn. App.) 251 **8.** W. 1031, irpertinent regarding the rerpocsi,bility of in,divlduuaJly Acting COntributora to a nuisance. In that cam t,hr$e defendarts owned a rtagnantpit 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 contributorato the nuiaame. Can ftbn 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 nqultableproceedl.rtg, thr court, having acqul.red jurisdiction for t.ha purpoee of abating the n,u~Lran.ce could properly edj'uet

ali. difference8b:ctwoen. ~the partlea, to the extent of adjudging who wan the real wro.n.g!ioe,r 1.f all. 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 preventivemeamree to nlinakat,e tke nu!.ea:mce,

we do not.

bel,ieve

theHonorable P. K. Birdwell, Page 5 (O-2403)

remaindermay cp-kinue to add their reepectlveportions of water to the etagnant pool, nor in thin inrrtsnce, oaltwater to the rivers even though their singular acts would not comtitute a nuiaaece.

Yours very truly

APPROVED JLJL25, 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