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 ,of rights 

In water. before the Board 

of Water Engineers may 

authorize change in’rater 

uaem. 

Dear Sir: 

The question for opinion Is stated In 

your letter of July 25, 1947, a8 follows: 

“Does the Board have the power 

to authorize an Irrigation company to, 

change the place and purpose of use, of 

all ox+ any part 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.! 

The above quetitlon arises in connection 

with pending applications to change the purpose and 

place of u6e of waters permitted to certain Irrigation 

companies. The solution depends ,on the function’which 

you perform and the result which you accomplish at 8 

hearing on such applications. 

The question of your authority to entertain appllcatlons to change the purpose and place of 

use of permitted waters la not expressly covered by 

statute and ras 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., 

200 9. 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 upon your Board continuing supervision over 

permitted waters, Including the power and authorlty 

to entertain application for change. 

As we construe the opinion In the 

Brlscoe case, your function as regards change of 

purpose and place of use, Is In the natumof a continuing pouer and duty to regulate existing permits, 

entirely independent of the nature of permltteets 

water right or any vested right he may have to such 

a change.’ Judge McClendon ln the Clark case used 

this languages 

“These statutory provisions 

clearly invest the Board with the power. 

and duty to determine whether the uses 

for which the application la made meet 

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, ,We therefore think there Is implicit 

in these provisions of our laws, constltutlonal and statutory, a vesting ln the 

Board of the continuing duty of supervialon 

over the distribution and une of the public 

waters of the State so as to see that the 

constitutional and statutory objectives are 

attained, and carrying with It the requirement that any substantial change In use or 

place of use not authorized in the original 

permlt, must have the approval of the Board. 

We believe that the foregoing language makes it clear 

that the same considerations which are Indulged in by 

you in granting the orlglnal permit are to be considered 

by you 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, inpair 
Hon. E. vs Spence - Page 3 -- V-390 

cxlstlng rights, both rlparlan and approprlatlve, and 

the public welfare Involved. 

It has been held in Mot1 v. Boyd, 116 

Tex. 82, that the function performed by you in the 

matter of hearing on and issuance of the original permit is not a judicial function, In our opinion, so 

long as your function as regards change of purpose 

and place of use is confined to regulation of the already exlatlng pemnlt and your deliberations are 

limited to the same considerations which are Involved 

In issuing the origlnaa permlt, the function per-, 

formed by you is non-judicial and we construe this 

to be, In substance, the holding of Clark v. Briscoe 

Irrigation Co., supra. 

In summary then, when passing on appllcation for change of purpose and place of use, you are 

performing an administrative function, one which concerns regulation or supervision of an already issued 

permit, and in SuIflIIing this function you determine 

in the usual manner after public notice and hearing, 

if the proposed change wiII be for a,purpose authorized 

by statute, will Impair existing rights, and the public 

welfare involved In the change. With these conslderatlons in mind, we turn to your question. 

The question of relative rights between 

irrigation companies and persons served or entitled to 

;zorrved by them has been the subject of much IitlgaSee comment in 7 Texas Law Review, pages 453 

46g,*incIuslve, 44 Tex. Jur. page 349, Sec. 226, and 

to 

cases there cited, These ri hts as between such par- .,: 

ties are defined by statute 'i; Arts. 7555, 7556, 7559, . . .‘ 

V. C. S.) and except on questions of rates (Arts.7560 

and 7567, inc,) are subject to determination in the 

usual manner before 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 company must 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 Iandowner by statute, Such a requirement necessarily anticipates that it will then be your duty to determine 
Hono E. V. Spence - Page 4 --V-390 

the validity of such title, resolving conflicts where 

these arise, and the 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 a judicial 

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, The administrative action 

which you take on the application obviously cannot affect relative rights which exist between irrigation 

companies and landowners, 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, and the change of purpose and 

place of use thereof. The permit which you issue 

granting the change is necessarily contingent upon 

permlttee irrigation companyfs settling and acquiring 

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 mean that the 

landowner can no longer assert contractual or other 

rights which he may have against the Irrigation company in the water and prevent the change If he elects 

, 

to take this course, i ~ Whatever rights are vested ln 

hlmcannot be taken away or added to by your Board and, 

in our opinion, to require releases in such cases would 

serve no useful purpose as regards your function in the 

matter. 

We do not mean that on the 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, must necessarily affect 

your decision in the matter, and we conceive the public 

notice of and hearing 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 company will have to operate during the period 
Hon. E, V. Spenoe - Page 5 -- V-390 

COVePed Prom the date of the release to the date of 

your decision, absent whatever contractual or prior 

arrangewent it may have had withthe landowner. In 

short, the irrigation company muat go out of business 

awing this period and,in advance of knowing whether 

a change will be permitted. We have already stated 

that releases would serve no'useful purpose and for 

reasons just indicated, we believe that to require 

them would be manifestly unjust and unduly burdensome 

on both landowner and irrigation company. 

To require releases would unnecessarily 

complicate the proceeding. It would become necessary 

for you'~to determine the legal sufficiency of the release and since a water 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 an interest inland (APL 7559; 44 T. 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 and to the parties necessary to join therein would necessarily arise, bringing with them questions concerning the sufficiency of 

acknowledgments, questions of heirship, matters relating to wills, and passage of title generally through 

decedent water right owners. We see no reason why you 

should be required to pass on these matters even though 

you might have the power to do so. 

We are, therefore, unable to find any 

basis for requiring releases in connection with your 

function a8 regards the application for change, nor do 

we see how such releases would add to or assist in your 

deliberations as to whether the proposed change involves a use authorized by law, impairs existing rights, 

or is detrimental to the public welfare. We construe 

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~s water, from what we have already 

said your consideration in this regard does not require 

an actual release or conveyance to the irrigation company of such rights. 

The briefs previously referred to deal at 
Hon. 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, show that, very definite property rights 

are acquired by the landowner in the water permitted 

to and furnished by the irrigation company. From 

what we have already said, we consider a discussion 

of these cases unnecessary. One point, however, is 

made whiOh we deem it necessary to give consideration. 

This involves the assertion that water and the, rights' 

perfected therein when devoted to particular land becomes inseparably attached or appurtenant to that land 

and no 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 on Irrigation and Water Rights, 2nd Ed.;Vol. 2, 

pages 1811 to 1820, inc., Sections 1015 and 1016, 

wherein grave doubts are raised as to whether water 

rights may become inseparably appurtenant to land 

even when made so by statute, referring to Wyoming 

and Idaho statutes, but clearly showing that the water right may not become inseparably appurtenant in 

the absence of an express statute dealing with the 

subject. See also Hutchins, Selected Problems in 

the Law of Water Rights, U. S. Department of A ricul-~ 

ture Miscellaneous Publication No. 418, page 3 8 5. 

We find no statute, or for that matter court decision, in this State which makes the water right inseparably appurtenant to particular land so as to 

preclude jurisdiction of your Board over change of 

purpose and place of use. Lakeside Irrigation Co. 

v. Markham Irrigation co., 285 S. W. 593; Dunbar v. 

Texas Irrigation Co., 195 S. w, 6143 Louisiana RIO 

Granae Canal Co. v. Frazier, 196 S, W. 210; Neches 

Valley Irrigation Company v. Howard, 206 S. W. 575’ 

and Combs v. United Irrigation Company, 110 S. 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 and place 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