Honorable George Beto           Opinion No. C-229
Director
Texas Department of Corrections Re: Riparlan Water Rights
Huntsville,Texas                     of the Department of
                                     Correctlo& on Oyster
                                     Creek/Fort Bend Coun-
Dear Dr. Beto:                       ty, Texas.
     Your recent letter requested the opinion of this of-
floe on the question of whether,the Department of Correc-
tions has riparian rights on Oyster Creek on the Harlem
and Central Prison Farms in Fort Bend County. From other
correspondenceand from discussionwith your assistant
director of agriculture,we believe that a complete answer
will,requireexaminationof the following specific ques-
tions:
     (1) Does the right to irrigate approximately
         400 acres from Oyster Creek exist as a
         riparlan right In the aforementionedPrison
         Farms?
     (2) If the right to Irrigate generally is not
         a riparian right possessed by these farms,
         can this irrl(gationbe const,ruedas a
         "domestia use since the 400 acres is vege-
         table crops to be consumed by the inmates
         on the farms?
     We have examfned the record title to the Harlem and
Central Farm properties, including the easement grants to
Sugarland Industries on December 10, 1929, and to the
Brasos Valley Irrigation Company on March 10, 1932. In
paragraph III of the March 10, 1932, easement contract,
the right to use water for "domestic"and "stock watering
purposes" was retained expressly by the Prison System.
The right to purchase water for irrigationpurposes from
the irri.gatlon.company was expressly mentioned. There-
fore, the riparian rights appurtenantto the land then
owned, 'if any, were not contractedaway or conveyed.



                           -1109-
Honorable George Beto, page 2 (C-229)


     The rule is well establishedthat rights appurtenant
to land grants are governed by the law of the sovereign
when the grants were made.
163"Tex. 381 355 S.W.2d 502
Tex. 500, 324 S.W.2d 1.67 (19
     The five original grants encompassingthe prison
property in Port Bend County in question and the granting
dates and authoritiesare as follows:
     (1) William Morton l-1/2 League - July 15,
         1824, by the Governmentof the Mexican
         Nation.
     (2) Jane Wilkins League - May 26, 1.827, by
         the Government of the Mexican Nation.
     (3) Jesse H. CartwrightLeague - March.31,
         1828, by the Government of the Mexican
         Nation.
     (4) Mills M. Battle League - May 31, 1827,
         by the Government of the Mexican Nation.
     (5)   Alexander Hodge League - April 12, 1828,
           by the Governmentof the Mexican Nation.
      The Texas Supreme Court in the recent case of State
v, Valmont Plantations,163 Tex. 381, 355 S,W.2d 5OT
  9f= I   Q t d the opinion of the San Antonio Court of
Civil ipie%efound at 346 S.W.2d 853. The Court thereby
held that 'underthe Mexican law prior to 1836 there was
no right of irrigation from a perennial stream, unless a
specific grant of water for irrigationwas made by the
Mexican Government. Oyster Creek was held to be a peren-
nial stream in United States v. Certain Tracts of Land in
Brasoria County, Tex., 93                . o ex.      l




     Examination of the translated copies of each of the
above listed grants distinctlynegatives any specific grant
of water for irrigation. In fact, three of the grants spec-
ify that the grant is "without facilitiesfor Irrigation.”
The other two grants contain nothing which indicates that
the land there involved was classifieddifferently. There-
fore, we conclude that no irrigation rights were granted
by the sovereign, specificallyor impliedly.
     The Valmont case, supra, does not reach the matter
of domest'icand 'livestockuse of water as a rfght appurte-
nant to the grant. There appears to be no dispute, however,
                            -lilO-
-   -




        Honorable George Beto, page 3 (C-229)


        that this use of water is consQ&ent with Mexican law'
        in force at the time,the grants In question were made.
             We believe this right to be analogous with the
        "natural" use of water by the proprietors of~rlparlan
        land granted'subsequentto the adoption of the Common
        Law in Texas.. This use is limited to an amount reasbn-
        ably necessary for domestic and'llvestockwatering ur-
        poses. Watkipm'                       #'Tex. 578, ii6
        S.W. 7337Tw5l.
             Article 115.1:(8) of the Texas Water Comm.lssionts
        Rules, Regulationsand Modes of Procedure. (1964 Ed.) de-'
        fines domestic use as follows:
                "(a) Domestic Use is the use of water by
             an individual, or by a family unit or house-
             hold,,for drinklng, washing, culinary pur-
             poses, Irrigation of a family garden ma/or
             orchard when the:.proauceis~to be consumed by
             the family unit, and the ~waterlngof animals
             used in operating a farm or as food for the
             farm family."
                        ,,,
             An aneweb to the.questlonof whether the irrigation
        contemplatedby the Prison System could be clas8lfledas
        "domestic use" Is suggested in El Paso County Water Improve-
        ,mentMstrlct No. 1 v. City of p Paso -F        S      uy4
           D T     1953         di      t on other g&%*243
        ~;d*g2~~C,C.A! ~~~fr&j7,"c%.      den. 355 U.S, 820).     The
        court states on pages 909 and 910, the following:
             II     The general rule is that the rlparlan
             rig&i of a city, owning land along a river,
             are no different from the rights of an Indl-
             vidt&l owner, and cannot be expanded to jus-
             tify the use of such rights as a nucleus for,
             supplying and selling water in great quantl-
             ties to the general public in said municipal-
             ity, . . . Such a withdrawal prima facie
             would seem to be out,of focus with the princi-
             ple of rlparian equality. . . .I'
             Consideringthe Prison System analogouswith the City
        of El Paso, supra, we hold that the proposed Irrigationof
        some 400 acres offland for growing vegetable crops for use F
        of Inmates detained within the Prison System is inconsist-
        ent with the concept of "domesticuse."


                                    -1111-
Honorable George Beto, page 4 (C-229)


                      SUMMARY
        The lands comprising Central and Harlem
     Farms, Texae Prison System, located~in vexi-
     can &and Grants in Fort Bend County, Texas,
     have no appurtenantright8 of irrigation
     f,romOyst'erCreek.
                                Yours very truly,
                                WAGGONER CARi?
                                Attorney General of Texas




WRR:afg
APPROVED:
OPINION COMMITTEE
W..Vi Geppert, Chalrman
J-8 M. Strock
Edward R. Moffett
Linward Shivers
Paul'Phy
Frank Booth
APPROVED FOR THE ATTORNEY   GENERAL
By: Howard Maya




                             -llP.?-
