Honorable P. K. Birdwell, President
Sabine-Neches Conservation District
Tyler, Texas

Dear Sir:                                Opinion No. O-2403
                                         Re: The Sabine-Neches Conser-
                                              vation District has author-
                                              ity to construct a reservoir
                                              to impound the natural flow
                                              of the Neches River for the
                                              purpose of making such fresh
                                              water available to dilute salt
                                              water flowing and seeping into
                                              the streams from the Eaet Texas
                                              011 field.

          We haye your letter of May 22nd calling for our opinion on the power
of the Sabine-Neches Conservation District to construct a reeervoir primarily
for the control and dilution of salt water, now being put into the tributaries
of the IiechesRiver in an unregulated manner. There ape several thousand oil
wells located on the Neches River Uaterahed, many of which now produce salt
water and all of which are potential producera of salt water. We understand
that an artificial reservoir a8 contemplated by your district if built acroaa
one of the upper trlbutarlee will enable you to dilute most of the present
and potential production of salt water in such manner a8 to maintain the salt
solution of the Neches River below a point harmful to the uses to which the
water Isiordinarily put. Your district was created "to coneerve, store, con-
trol, preserve, utilize and distribute the storm and flood waters and the waters
of the rivers ana streams of the State, and such powere as may be contemplated
and implied by the purposes of this provision of the Constitution and a6 may
be conferred by general law, as well as by the provisions of this Act," (Sec.
1, Chapter 97, Gen. Iaws, 44th Leg., Reg. Sees., S. B. No. 361).  Section 59
of Art. 16 of the Constitution is the reference made In the statute to the
Constitution. Section 59(a) of the Constitution provides:

          "The conservation and development of all the natural re-
     aourcee of thia atate including the control, storing, preserva-
     tion and dietribution of its storm and flood waters, and waters
     of ita rivers and streama, for irrigation, power, and all other
     useful purposes, the reclamation and irrigation of its arid,
     semi-arid and other land8 needing irrigation, the reclamation
     and drainage of its overflowed lande, and other land! needing
     drainage." (Italics ours)
Honorable P. K. Birdwell,   Page 2 (O-2403)



Section 59(c) of the Constitution    providea in part,

           “The Legislature ahall suthorise a&l ruch lndebtednem aa
     msy be neceerary to provide all improvementr and the ~intanancs
     thereof raquieite to the achievems~t of the purpo#er of thir
     aaadment, end all rucb indebtednear my be evidenced     by bondr
     of euch conremation and reclamtiou     district to be iyued under
     euch regulation8 aa n+y be prercribed by law . , .”

           Section l of 8. B. 361 providen:
           ” . I . Said district rhall hsve and be recognlmd       to ex-
     rrcirr all the rlghtr and power8 of an~iadepen@nt       govornzrantrl
     agmcy, body politic     and corporate, to conrtruct,, maintain and
     operate, in tha valleyr of the Sebine u&d Nechea Rlrorr md
     their trlbutrrirr,   within or without the boundarima of ruch
     dlrtrict,  my and all works deemed emential to the operation
     of the dirtrict and for itr admiairtratio~ in the control,
     boring,   prerervatior’md    dlrtributlon to all uraful purporar
     of the w&err of the Sabina and Nechea Rivrrr     and their trfbu-
     tary rtreaum, Including the rtom end flood w&err thereof.”

           Dx the face of a finding on the part of the S@bine-I?echar Conmrvr-
tion Dirtrict Board, that the com$ruction of the rubjrct dam or rerervoir
ir a function erientlcrl to the operation of the dlrtrict in rtoring the water1
for a weful purpom, it 11 our opinion the dirtrict     undoubtedly l&sethe au-
thority to conrtmct raid rerervolr.     We are told that thir finding ii bared
upon the fact1 that the water0 of the river are wed for the irrigation of
revere1 thourand acrei ol rice landrj for the domertic rupply of rovers1 citieej
and for variour lndurtrial purporen. The malt mter in the river prerently
conrtitutes e menace to theie unei which woul$ be eliminated by the reremoir.
The rtatute clearly ret1 forth the power of the Board to comerve water for
the purpore of Irrigation and 411 othbr useful purporea.     The conrerving of the
frerh water to dilute the r8j.t watef lr unquertiombly a coxuervatioa of the
Hecher River waterr In aid of irrigation pnd much functioni rimredly fall
within the genersl claure “all other useful purpoaei”.

             Your recond quertlon ii whether the dlrtrict her authority to me
raid portiona of Johnron.end Bowlei Creek channeli an carrierr for the rrlt
water dlrcharga    from the welli to the remrvolr.      Johnron and Bowlei Creek
channeli are tributarier to the Bechqr River water ryrtem, and whsstioever
power the dirtrlct     har extenda to theee tributarlee,   LI Section 1 of the itat-
ute dercrlber the poweri an extending to “the waterr of the Beblne and Hecher
River8 and their tributary atreaM”.       Subnection (1) of Section 13, 8. B. 361,
provides:

          “The right of eminent domain ir exprerrly c+ferred upon
     such dirtrlct to enable it to acquire the fee aimp title to
     and/or eaeement or right-of-way over end through, any and all
     lande, water or landr under water, private or public, within
Honorable P. K. Birdwell, Page 3 (O-2403)



     and without such district, necessary or convenient to carry out
     any of the purpoees and powers conferred upon such dietrict by
     this Act."

          Accordingly, if the district deems it necessary or - convenient to
carry out itrrpurporem, it may condemn and ure the channelr of Johnnon and
Bowler Creeke. Inrofar aa the proposed reservoir would back water up there
tributarierr,the dietrict would be obliged to condemn the channela, and water
right8 adversely affected. The dietrict would not be obliged of neceaeity
to condemn the channels at points above the back water of the reservoir. The
use of such portions of the channels would be by the operators disposing salt
water into the streame, 88 distinguished from uBe by the conservation district.
However, it would appear that if the distrik should conclude it convenient
to its purposes to condemn the channels and water rights at such points, it
could under its statutory authority do eoO

          Your third question requests information on the "type and legality
of securities which would have to be issued by the district." You state that
the aecuritiee would have a8 collateral a group of contracts between the in-
dividual operators and the district, providing for the payment of a monthly
trervicecharge. The contracts in turn .toform a sound basis for financing,
would no doubt have to provl.defor a lien on the properties of the operators
involved, securing the payment of the charges. This is 80 because the power
IS specifically withheld from the disi;rict. Bowever, subsection (m) of Sec-
tion 13, S. B. 361, provides:

          "The Board of Directors of said di.strictshall prescribe
     fees and charges ,tobe collected for the use of water, water
     connections or other ser~l,ce which fees and chargee shall be
     reasonable an.:1
                    eqxitable'fully     sufficient to produce reve-
     nues adequate to pay, and said Board of Directors shall cause
     to be paid therefrom: (specifically enumerated purposes)."
     (Italics ours)
                                                    o
          Sections 17 through 303 excepting 25, of S. B. 361 govern the iseu-
@nce of obligations. Insofar a8 the proposed securities would be secured by
contracts between the individuals and the district, the 6ame would appear to
be legal, and the district is at freedom to provide any type of security not
in conflict with the specific provisions of the sections of the law referred
to. As Secti.on30p S. E. 361, provides:

          "This Act without reference to other statutes of the
     State of Texas, shall constitute,full authority for the au-
     thorization and issuance of obligattons hereunder . . ."

          Your fourth question in effect is, whether operators not presently
disposed to contract with the district may be forced to diecontinue disposal
of salt water into the streams, or be forced to enter into a contractual re-
lationehip with the district. As "a practical matter in the event an injunc-
tion would issue against such an operator, he would probably be forced to
                                                                       G c
                                                               *
Honorable P. X. Birdwell, Page 4 (o-24.03)



contract with the dietrict, however, there is no legal method for forcing such
an operator to contract with the district. Regarding the issuance of an ln-
junction a8 against such en operator, we shall amme      that tiewould preaently
be subject to an injunction dl.sallow9lgfurther d.ispoeslof eslt water into
the etream. Such an injunction would l.seueby reamon of the aggmgete dieporal
now constituting a nuirance. After ,thererervolr l.mbuilt, it ir our opinion
that ruch operator could not take advantage of the facllitlae offered by the
dietrlct without payment therefor, not,,wl.th.atar.ding
                                                     b.1.nin,divl.&usl actr would
not in and of themealvsa Conetttute a naiee~~e. our courts have recognized
a measure of joint reeponsibllity ancongcol;trlb:ltorr  to a nu:eance. Equity
in prevention of a nuisance ,11111.
                                 enjo:l,r!
                                         a el.ngleactor even though hir mingle
contribution does not conrtitute the UII~.EW~~X.The actora my be mod mevsr-
ally or they may be joi,ned. In.46 Car. i!ur.p. ‘781,Sec. 395, It im raid:

           “Where aavsral pareone coutrihutc:$0 t,hrcrcntl,on.   of A rrui-
     manta, they may bo joinsd 1.11 A su!,tto abate ttramaam, Alt;hough
     eAC'htranractm him 'bu#i,naar, frcm uhl.ch the ndiranco flowr,   IMpa-
     ratsly and wi,thout my comcet;lm    w,r.t,h.the othkrl, and there ir
     no joint ~lntantor joM     action,ib’!iLim,dcrau& c,Lrcumrta,ncan  I:t
     ir not nacerlary       all
                       that.;    perro*l.s
                                         c0atributi~a.g  to the nul~ance
     rhould ‘bojoined &I defendanta.”

          A principle of the Ceez of Bartholomew v, Stipe (Corn.App.) 251 8. W.
1031, ir pertinent regarding the rerpocsi,bilityof in,divlduuaJly Acting COntri-
butora to a nuisance.  In that cam  t,hr$edefendarts  owned a  rtagnant pit and
a complainant eucceeefully sought en i~:~.junctior~.
                                                ,tohave the p1.tdrained. One
                                               and incurred an expenlreof $300.00.
of the defem3.antaproceeded to have it dral.r:.ed
On appeal the Judgment required the &her r?efr?n,dantrr
                                                      to contrfbute to the expense.
The court of equity hare aeeumd jurlsdictI,oa.properly to allocate the burden
among the contributora to the nuiaame.   Can ft bn 18al.dMat became one or
two of the con.tributorahad dra,i.ned
                                    +.klr respmztl,veamounte of water that the
                         beLng i,r1.con.seij~1,eri~?,S~,1.,
remini.ng con.tribut,lons,                      ~0~l.dn.0tbe anjol.nea,or if
dminsd, that they would n,othave to pay for earvice. Judge German, in the
B~rtholoumw came (nupra), sal,C:

          “Being an nqultable proceedl.rtg,thr court, having acqul.red
     jurisdiction for t.hapurpoee of abating the n,u~Lran.ce
                                                           could prop-
     erly edj'uetali.difference8 b:ctwoen.
                                         ~thepartlea, to the extent
     of adjudging who wan the real wro.n.g!ioe,r
                                              1.fall.were not’culpable,,
     and decreeing en equita’b1.e
                                r:or!t.rl,bld!,o-r
                                              bct,weent’hoal:
                                                            wh.obad
     been required to incur expenses and. comta for the benefit  of all
     in Abating the nlLl.eanCe."

          Where certain of the defendan.t,a,
                                           for t;hebenef:l.t
                                                           of all.,have under-
taken preventive meamree to nlinakat,etke nu !.ea:mce,
                                                     we do not.bel,ievethe
Honorable P. K. Birdwell, Page 5 (O-2403)



remainder may cp-kinue to add their reepectlve portions of water to the etag-
nant pool, nor in thin inrrtsnce,oalt water to the rivers even though their
singular acts would not comtitute a nuiaaece.

                                                         Yours very truly

APPROVED JLJL25, 1940                              AVORNEY   GENERAL OFTEXAS

Id   Gerald c. Mann

ATI'ORNEXGENEPxALOFTEiAS                           By    /is/Hugh Q. Buck
                                                             Hugh Q. Buck
                                                                Assistant

HQB:BBB:IM


                                             APPROVED
                                             OPINION
                                            COMMITTEE
                                            BY /8/ BUB
                                              CHAIRMAN
