September 26, 1947

Hon. E. V. Spence, Chairman Board of Mater Engineers Austin, Texas Opinion Ho. V-390 

### Re: lSecesslty for releases by the yners ,ofrights In water.

### before the Board of Water Engineers may authorize change in’rater uaem. Dear Sir: Thequestion for opinion Is stated In your letter of July 25, 1947, a8follows:

“Does the Board have the power to authorize an Irrigation companyto, change the place andpurpose of use,of all ox+anypart of the water allocated under lts~permlt wlthout a showing that releases or consent8 have’been obtained from (a) owners’whoee lands abut upon the lrrlgatloti canal, and (b) owners of other lands Included in the permit area.!

Theabove quetitlon arises in connection with pending applications to change the purpose and place of u6e of waters permitted to certain Irrigation companies. Thesolution depends ,onthe function’which you perform and the result which you accomplish at 8 hearing on such applications.

Thequestion of your authority to entertain appllcatlons to change the 

### purpose andplace of use of permitted waters la not expressly covered by statute andras not considered by the courts of thle State until the declalon by the Austin Court of Clvll Appeals In the case of Clark 8. Brlscoe Irrlgatlon Co., 2009. W. (2).674, writ of error pending. It was de-.

## ’

.. Hon. 2. V, Spence - Page 2 -- V-390

tided ln that case that the various statutes deallng nlth the issuance of permlts under which appropriative rights are acquired lnferentiallg conferred uponyour Board continuing supervision over permitted waters, Including the power andauthorlty to entertain application for change.

Asweconstrue the opinion In the Brlscoe case, your function as regards change of purpose andplace of use, Is In the natumof a continuing pouer andduty to regulate existing permits, entirely independent of the nature of permltteets water right or anyvested right hemayhave to such a change.’ JudgeMcClendon ln the Clark case used this languages

“These statutory provisions clearly invest the Board with the power. andduty to determine whether the uses for which the application la mademeet the statutory objectives, Including that of being In the public interest. i

.

“Every consideration for veatlng such original discretion In the’Board~ applies with equal force for its exercise in case of change of purpose or place of use, ,Wetherefore think there Is implicit in these provisions of our laws, constltutlonal andstatutory, avesting ln the Board of the continuing duty of supervialon over the distribution andune of the public waters of the State so as to see that the constitutional andstatutory objectives are attained, and carrying with It the requirementthat any substantial change In use or place of use not authorized in the original permlt, must have the approval of the Board. Webelieve that the foregoing language makesit clear that the sameconsiderations which are Indulged in by you in granting the orlglnal permit are to be considered byyou ln passing on the application for change. These considerations are set forth in Articles 7506 and 7507, v. c. s., wherein it Is provided that in paselng on the original permit you are to determine the availability of unappropriated water from the source of supply, IS the proposed use will be for a statutory purpose, inpairHon. E. vs Spence - Page 3 -- V-390

cxlstlng rights, both rlparlan andapproprlatlve, and the public welfare Involved.

It has been held in Mot1v. Boyd, 116 Tex. 82, that the function performed byyou in the matter of hearing on andissuance of the original permit is not ajudicial function, In our opinion, so long as your function as regards change of purpose andplace of use is confined to regulation of the already exlatlng pemnlt andyour deliberations are limited to the sameconsiderations which are Involved In issuing the origlnaa permlt, the function per-, formed byyou is non-judicial andweconstrue this to be, In substance, the holding of Clark v. Briscoe Irrigation Co., supra.

In summarythen, whenpassing on appllcation for change of purpose andplace of use, you are performing anadministrative function, onewhich concerns regulation or supervision of analready issued permit, andin SuIflIIing this function you determine in the usual mannerafter public notice andhearing, if the proposed change wiII be for a,purpose authorized by statute, will Impair existing rights, andthe public welfare involved In the change. With these conslderatlons in mind, weturn to your question.

The question of relative rights between irrigation companies andpersons served or entitled to ;zorrved by themhas been the subject of muchIitlgaSee commentin 7Texas LawReview, pages 453 46g,*incIuslve, 44Tex. Jur. page 349, Sec. 226, andto

cases there cited, These ri hts as between such par- .,: ties are defined by statute 'i; Arts. 7555, 7556, 7559,

. . .‘ V. C. S.) andexcept on questions of rates (Arts.7560 and7567, inc,) are subject to determination in the usual mannerbefore the courts of this State.

If It 1s required that releases be Surnlahed, the only effect of such a requirement can be that permlttee irrigation companymust tender to your Board evidence of the fact that it has clear and unencumbered title to the waters involved and that no interest is outstanding therein through contract, right of easement, or other rlght secured to the Iandownerby statute, Such a requirement necessarily anticipates that it will then be your duty to determineHonoE. V. Spence - Page 4 --V-390

the validity of such title, resolving conflicts where these arise, andthe sufficiency of the instruments which purport to reconvey the right or title to the Irrigation company. In our opinion, such action on your part would constitute the exercise of ajudicial function. In this connection, It has been urged In briefs submltted to us on this question, that the granting of the application to change without Surnlshing releases will deprive non-releasing landowners of vested property rights. Thls view, In our opinion, misconceives the effect of your action In granting the application for change, Theadministrative action which you take on the application obviously cannot affect relative rights which exist between irrigation companies andlandowners, whether releases be Surnlshed or not. Whatever these rights are, your action, unless It be judicial, cannot determine them. Pour concern relates to the permit, the given quantity of water permitted therein, andthe change of purpose and place of use thereof. Thepermit which you issue granting the change is necessarily contingent upon permlttee irrigation companyfs settling andacquiring any outstanding rights acquired by contract or operation of law in the quantity of water allocated to it by its permit. Simply because It has the permission of your Board to **make**the change does not meanthat the landowner can nolonger assert contractual or other rights which hemayhave against the Irrigation company in the water andprevent the change If he elects

, to take this course, i ~ Whatever rights are vested ln hlmcannot be taken awayor added to byyour Board and, in our opinion, to require releases in such cases would serve nouseful purpose as regards your function in the matter. Wedonot meanthat onthe hearing you are to give no consideration to the desires of the land- : owners in the matter. Their views on the change, as expressed at the public hearing, mustnecessarily affect your decision in the matter, andweconceive the public notice of andhearing on the application for change as the,proper approach in these cases. This procedure Surnlshes ample opportunity for the landowner to appear and express his Views in the matter. In addition, if releases are required, it becomes evident that the lrrlgatlon companywill have to operate during the periodHon. E, V. Spenoe - Page 5 -- V-390

COVePedPromthe date of the release to the date of your decision, absent whatever contractual or prior arrangewent it mayhave hadwiththe landowner. In short, the irrigation companymuatgo out of business 

## awing this 

## period and,in advance of knowing whether a change will be permitted. Wehave already stated that releases would serve no'useful purpose andfor reasons just indicated, webelieve that to require themwould be manifestly unjust andunduly burdensome on both landowner andirrigation company.

Torequire releases would unnecessarily complicate the proceeding. It would become necessary for you'~to determine the legal sufficiency of the release andsince awater ri ht is subject to recordation (Article 7559, V, C. S.; 'd T, J, p. 65, Sec. 49) and is treated for the purpose of transfer and conveyance as aninterest inland (APL 7559; 44T. J, ppe 62 to 65, Inc.) the form of the release and,'che legal sufficiency thereof as a conveyance would require your aecision. Questions relative to the sufficiency of the execution of such instruments andto the parties necessary to join therein would necessarily arise, bringing with themquestions concerning the sufficiency of acknowledgments, questions of heirship, matters relating to wills, andpassage of title generally through decedent water right owners. Wesee no reason whyyou should be required to pass on these matters even though you might have the power to do so.

Weare, therefore, unable to find any basis for requiring releases in connection with your function a8regards the application for change, nor do wesee howsuch releases would add to or assist in your deliberations as to whether the proposed change involves ause authorized by law, impairs existing rights, or is detrimental to the public welfare. Weconstrue existing rights in such cases as being the rights of other appropriators holding under permits issued by your Board, but even though existing rights do include, as well they might, righks acquired by the landowner in the irrigation coxnpany~swater, fromwhatwehave already said your consideration in this regard does not require an actual release or conveyance to the irrigation company of such rights.

Thebriefs previously referred to deal atHon. E. V. Spence - Page 6-- V-390

length with the numerous decisions in this State concerning rights between irrigation companies and the persons served by them. These decisions, undoubtedly, showthat, very definite property rights are acquired by the landowner in the water permitted to andfurnished by the irrigation company. From whatwehave already said, weconsider a discussion of these cases unnecessary. Onepoint, however, is madewhiOhwedeemit necessary to give consideration. This involves the assertion that water andthe,rights' perfected therein whendevoted to particular land becomes inseparably attached or appurtenant to that land andno right of change of purpose 

## or place of use exists, with or without your Board's approval. This matter has been considered at length by Kinney in Ns work onIrrigation andWater Rights, 2ndEd.;Vol. 2, pages 1811 to 1820, inc., Sections 1015 and 1016, wherein grave doubts are raised as to whether water rights maybecome inseparably appurtenant to land evenwhenmadeso by statute, referring to Wyoming andIdaho statutes, but clearly showing that the water right maynot become inseparably appurtenant in the absence of an express statute dealing with the subject. See also Hutchins, Selected Problems in the Lawof Water Rights, U. S. Department of Aricul-~ ture Miscellaneous Publication No. 418, page 3 

## 85. Wefind nostatute, or 

## for that matter court decision, in this State which makesthe water right inseparably appurtenant to particular land so as to preclude jurisdiction of your Board over change of purpose andplace of use. Lakeside Irrigation Co. v. 

## Markham

Irrigation co., 285 S. W. 593; Dunbarv. Texas Irrigation Co., 195S. w, 6143 Louisiana RIO Granae Canal Co. v. Frazier, 196S, W. 210; Neches Valley Irrigation Companyv. Howard, 206S. W.575 ’ andCombsv. United Irrigation Company, 110S. W. 22) 1157, have all been cited to us as sustaini;: k: inseparable appurtenance proposition urged. opinion, none of these cases decide the question.. Bon. E. V. Spence - Page 7 -- v-390

In passing on applications to change the purpose andplace of use of permitted waters, the Board of Water Engineers need not require 

## irrigation companies to furmish ixleases by landowners of their rights in the permitted waters as a requisite to the Board's jurisdiction in the matter.

Pours very truly ATTORNEYGENERALOFTEXAS

BDPrbt Assistant

ATTORNEYGENERAL