Lake Brownwood and Texas Water Law
ROBIN A. MELVIN *
IN 1931 THE TEXAS LEGISLATURE ADOPTED A STATUTE GOVERNING THE
use of water that has come to be known as the Wagstaff Act. The act
remains the law in Texas. Although it has rarely been used, it is much
discussed, and is one of the most controversial water statutes in Texas.'
Less than twenty years before adopting the act, the legislature had fi-
nally succeeded in engrafting the appropriative doctrine of water use
onto the riparian rights system that had existed since Texas statehood.2
Through the act, however, the Texas legislature significantly qualified
a central concept of the appropriate system it had so recently adopted:
the concept that the date of first use alone determines who is entitled to
use water when there is not enough water to satisfy all users. After
1931, not only the date of use, but the type of use would determine
who could use water when enough water was not available. Municipal
uses would have preference over all other types of uses. Support for
this substantial departure from the pure appropriative system began in
a fight over a modest reservoir project in Brown County, Texas.
*Robin A. Melvin is an attorney with the firm of Graves, Doughtery, Hearon & Moody in
Austin, Texas. She is presently working on a legal history of the Texas Irrigation Acts of 1913
SFehx McDonald, "The Wagstaff Act After Fifty Years," Proceedngs of the Texas State Bat Emvl-
ronmental Law Section Conference (May, 1981), H-2 - H-23, Application No 5ooo file, Texas
Water Commission (cited hereafter as TWC), Application to Amend Certificate of Adjudica-
tion No. 14-166oA file (TWC) For discussions of the statute see Corwln W. Johnson, "Condem-
nation of Water Rights," Texas Law Review, XLVI (Nov, 1968), 1054, 1o62-1o67; John D.
McCall, "Rights in Impounded Water," in Proceedings. Water Law Conference of 1952-54 (Unim-
versity of Texas at Austin Law School), 257-260, Robert W. Swenson, "Municipal Water Pref-
erence Statutes: The Texas Wagstaff Act," in Corwin Waggoner Johnson and Susan Hol-
lingsworth Lewis (eds.), Contemporary Developments in Water Law (Austin: University of Texas,
Center for Research in Water Resources, 1970), 27; Wells A. Hutchins, The Texas Law of Wate>
Rights (Austin- Texas Legislature and Texas Board of Waters Engineers, 1961), 211-217;
Sherry Lynn Peel, "Acquisition of Municipal Water Rights in Texas: A Conceptual and Opera-
tional Analysis," Texas Tech Law Review, XVII, No 3 (1986), 811, 832-835, Harbert Davenport,
"Development of the Texas Laws of Waters," in Vernon's Annotated Revised Civl Statutes of the
State of Texas, Vol. 21, Water (Kansas City, Mo : Vernon Law Book Co., 1954), xxxvln.
2Chapter 171, "Irrigation-Provides an Adequate System of Laws Relating Thereto," H.B.
No. 37, General Laws of the State of Texas, 33rd Legis., Regular Sess, 1913 (Austin. Von
Boeckmann-Jones Co., 1913), 358-379. The doctrine of appropriative rights arose out of the
experiences of the arid and semiarid western states and territories It provides that the first
Texas State Historical Association. The Southwestern Historical Quarterly, Volume 95, July 1991 - April, 1992. Austin, Texas. The Portal to Texas History. http://texashistory.unt.edu/ark:/67531/metapth117153/. Accessed December 19, 2013.