The Southwestern Historical Quarterly, Volume 106, July 2002 - April, 2003 Page: 382

Southwestern Historical Quarterly

water from the river into the ditch. The court overruled this motion on
January 4, 1961. Associate Justice H. D. Barrow reiterated the appellate
court's initial ruling that the Mexican grants of dulas and land had pro-
vided the landowners with rights to the dam and headgate. Associate
Justice Barrow further pointed out that the conduit depended on the
ability of the dam in the river bed to raise the level of water sufficient to
turn the water into the ditch by gravity flow, and in the court's opinion,
"the changing and lowering of the channel, as well as the destruction of
the dam, left the headgate and ditch high and dry.""34
The San Antonio River Authority petitioned the Texas Supreme
Court almost immediately after the rehearing by the appellate court was
denied: San Antonio River Authority v. G. Garrett Lewis et al. In its first rul-
ing of February 14, 1962, the Supreme Court reversed the judgment of
the appellate court and affirmed the declaratory summary judgment of
the district court. On a split vote, with three dissenting justices, six of the
Supreme Court justices found for the San Antonio River Authority.
Writing for the majority, Chief Justice Robert W. Calvert noted that the
grantees in the Mexican grants of 1824 had neither acquired vested
rights in the continued existence of the dam nor the right to have the
waters of the San Antonio River continue to flow in their accustomed
channel with the dam used as an irrigation facility. Hence, in his view,
ownership of the old San Juan Dam was immaterial. Even if vested rights
had existed, the court determined that they "could be taken by the State
of Texas, without payment of compensation, under the police powers of
the State.""5
Attorneys for the respondents, the class of San Juan Acequia irriga-
tors, filed a motion for rehearing. Once again, the Supreme Court jus-
tices reviewed the files, historical records, legal scholarship from similar
cases, pertinent case law in Texas courts, as well as Spanish water laws
dating to the Siete Partidas. After nine months of careful reconsideration
and concern, Chief Justice Calvert once again wrote the court's opinion,
this time reversing and finding for the irrigators. Although there were
four dissenting votes, the majority vote of five affirmed the earlier judg-
ment of the Court of Civil Appeals and set aside the high court's own
judgment of February 14, 1962. This second and final decision of the
Supreme Court on November 28, 1962, ruled that the Mexican grants
of 1824 were still valid, including their granting of irrigation water
rights to the original landowners and their successors. In the view of the
Texas Supreme Court, the landowners had been correct all along: the
34 Ibid., opinion of Associate Justice H. D. Barrow, on Motion for Rehearing.
*5 Opmion of ChiefJustice Robert W. Calvert, San Antonio River Authonty, Petiztoner, v. G. Garrett
Lewis, et al., Respondents, in the Supreme Court of Texas, no. A-83o4, Feb. 14, 1962.

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