The Southwestern Historical Quarterly, Volume 106, July 2002 - April, 2003 Page: 383
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2003 Restoring the Oldest Water Right in Texase 383
source of the waters granted by the sovereign was the San Antonio River
and not just the San Juan Acequia.36
In his opinion for the new majority, Chief Justice Calvert recounted
the claims of both parties and the rationale for the decisions reached in
each proceeding. The undisputed facts with respect to the rights of each
party were also reviewed, and the form of the grant to Francisco Maynes
was again cited as an example of those of the predecessors of the ripari-
an owners. He noted that the civil law of Spain, as one of the prior sover-
eigns, was not altered by that of Mexico due in part to the unsettled state
of affairs that existed from the date of Mexican independence to the
promulgation of the Mexican Federal Constitution in 1824."
He then recited the authority of Texas courts, as well as the Spanish
Siete Partidas. Several provisions in the Siete Partidas were especially useful
to the judicial majority in this case. Judge Calvert cited express provi-
sions where these laws protected the rights of existing irrigators against
diversion of stream waters from their accustomed channel:
One who "obstructs the current, or diverts the stream so that others who are
accustomed to make use of it cannot irrigate their lands by it" shall remove the
offending structures at his own cost and pay all damages and any losses previous-
If a stream becomes obstructed from natural causes "so that the channel is cut
off, and the water removed from the place where it formerly flowed," the person
who owns said land can be compelled to reopen the channel "through which the
water formerly ran and cause it to resume its accustomed course";
Protection is afforded a purchaser of land who has been injured when an
offender has built a structure on his premises "by means of which water is cut off
or obstructed where it was formerly accustomed to flow";
One may construct a mill or a machine propelled by waterpower on his own
land near another mill or machine, but such work shall "be performed in such a
way that the course of the water will not interfere with the other mill, but that
the party may freely have it as it was formerly accustomed to run."3
The central question raised by the Supreme Court of Texas was
whether the riparian owners had acquired, "as against the sovereign,
s6 Opinion of Chief Justice Robert W. Calvert, SARA v. Lewis, in the Supreme Court of Texas,
no A-83o4, Nov. 28, 1962, rehearing denied Jan. 23, 1963 See 363 South Western Reporter, 2d
Series, 444-457 (Tex. 1963), West Publishing Company, St. Paul, Minn.
7 Ibid. Although Chief Justice Calvert recounted the many laws of Spain and Mexico applica-
ble to this case, he also referred the Supreme Court to the more "scholarly and comprehensive
analysis" of these sources written in an opinion by Associate Justice Pope of the Fourth Court of
Civil Appeals of San Antonio determining a March 29, 1961, case: Texas v. Valmont Plantations et
al., 346 South Western Reporter, 2d Series, 853-886 (Tex. 1961).
18 Ibld, Opinion of ChiefJustice Robert W. Calvert, citing the Ssete Partidas. See Ssete Partidas,
Law 13, Title 32, Part 3 (ist quotation); Szete Partzdas, Law 15, Title 32, Part 3 (2nd quotation);
Siete Partidas, Law 16, Title 32, Part 3 (3rd quotation); and Siete Partidas, Law 18, Title 32, Part 3
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Texas State Historical Association. The Southwestern Historical Quarterly, Volume 106, July 2002 - April, 2003, periodical, 2003; Austin, Texas. (texashistory.unt.edu/ark:/67531/metapth101223/m1/451/: accessed June 22, 2017), University of North Texas Libraries, The Portal to Texas History, texashistory.unt.edu; crediting Texas State Historical Association.