The Southwestern Historical Quarterly, Volume 106, July 2002 - April, 2003 Page: 381
The following text was automatically extracted from the image on this page using optical character recognition software:
Restoring the Oldest Water Right in Texas
The court noted that the city of San Antonio was no longer a small village
located several miles north of the San Juan Dam. By now, San Antonio
covered several hundred square miles of buildings, pavement, and other
improvements constructed alongside the shallow San Antonio River and
its tributaries that meandered through the city. With very little exposed
earth to absorb moisture, flooding during occasions of heavy rains was
inevitable prior to the installation of flood control measures. Under these
conditions, the court acknowledged that the river authority was justified
in exercising its police powers in order to protect the health, safety and
welfare of the city and its inhabitants. In the view of the court, "the real
cause of the difficulty is that the City has outgrown the river.""32
As to the rights of the irrigators, on the other hand, the Court of Civil
Appeals recited the history of the area dating to the 173os, when Texas
was a province of the kingdom of Spain. The San Juan Dam was con-
structed for the purpose of irrigating lands in the vicinity of Mission San
Juan. After Mexico had gained its independence from Spain, the court
recounted how in 1854 the Mexican Republic had made numerous
small grants of land together with the water rights or dulas to irrigate the
individual parcels. In this regard the court noted that the 1824 grantees
were "predecessors in title" to the appellant irrigators; further, the court
agreed with the irrigators that they were entitled to the flow of water
from the old San Juan Dam into the ditch. To illustrate this point, the
court noted that the February 5, 1824, grant provided two dulas of water
to Francisco Maynes. In reviewing the significance of the language in
this typical 1824 grant, the appeals court concluded: "We think it is
clear that the dam, head gate and ditch were then and remained a part
and parcel of 'the irrigation conduit of the Mission of San Juan
Capistrano.' The grant was not merely two dulas of water in the ditch,
but included the right to the dam and head gate as well as the irrigation
ditch." The appellate court remanded the case to the district court for
retrial of the claims for damages.33
The San Antonio River Authority filed a motion for rehearing follow-
ing the decision of the Fourth Court of Civil Appeals. Among other
points, the attorneys for the SARA contended that the original opinion
of the court had not made clear what specific property had been taken,
damaged or destroyed, and in particular, whether the court held that
the appellants (the irrigators) had title or right to the gravity flow of the
~' G. Garrett Lewis, et al., Appellants, v San Antonio Raver Authority, Appellee, 343 South Western
Reporter, 2d Series, 475-485 Court of Appeals, San Antonio (Tex. 1961), in the Fourth Supreme
Judicial District, no. 13589, Nov. 23, 1960, rehearing denied Jan. 4, 1961, West Publishing
Company, St. Paul, Minn.
"Ibid., opinion of Associate Justice H. D. Barrow.
Here’s what’s next.
This issue can be searched. Note: Results may vary based on the legibility of text within the document.
Citing and Sharing
Basic information for referencing this web page. We also provide extended guidance on usage rights, references, copying or embedding.
Reference the current page of this Periodical.
Texas State Historical Association. The Southwestern Historical Quarterly, Volume 106, July 2002 - April, 2003, periodical, 2003; Austin, Texas. (texashistory.unt.edu/ark:/67531/metapth101223/m1/449/: accessed March 29, 2017), University of North Texas Libraries, The Portal to Texas History, texashistory.unt.edu; crediting Texas State Historical Association.