September 26,   1947


Hon. E. V. Spence, Chairman
Board of Mater Engineers
Austin, Texas
                    Opinion Ho. V-390
                      Re:   lSecesslty for releases
                            by the yners ,of rights
                            In water. before the Board
                            of Water Engineers may
                            authorize change in’rater
                            uaem.
Dear Sir:
                 The question for opinion Is stated      In
your letter   of July 25, 1947, a8 follows:
                  “Does the Board have the power
     to authorize an Irrigation     company to,
     change the place and purpose of use, of
     all ox+ any part of the water allocated
     under lts~permlt    wlthout a showing that
     releases    or consent8 have’been obtained
     from (a) owners’whoee lands abut upon the
     lrrlgatloti   canal, and (b) owners of other
     lands Included in the permit area.!
               The above quetitlon arises in connection
with pending applications    to change the purpose and
place of u6e of waters permitted to certain Irrigation
companies.  The solution   depends ,on the function’which
you perform and the result which you accomplish at 8
hearing on such applications.
                  The question of your authority   to enter-
tain appllcatlons    to change the purpose and place of
use of permitted waters la not expressly     covered by
statute and ras not considered by the courts of thle
State until the declalon by the Austin Court of Clvll
Appeals In the case of Clark 8. Brlscoe Irrlgatlon      Co.,
200 9. W. (2).674,    writ of error pending.    It was de-.
                                                               ’ ..
Hon. 2. V, Spence - Page 2 -- V-390


tided ln that case that the various statutes deal-
lng nlth the issuance of permlts under which ap-
propriative  rights are acquired lnferentiallg con-
ferred upon your Board continuing supervision  over
permitted waters, Including the power and authorlty
to entertain application  for change.
                 As we construe the opinion In the
Brlscoe case, your function as regards change of
purpose and place of use, Is In the natumof     a con-
tinuing pouer and duty to regulate existing   permits,
entirely  independent of the nature of permltteets
water right or any vested right he may have to such
a change.’ Judge McClendon ln the Clark case used
this languages
                 “These statutory provisions
     clearly  invest the Board with the power.
     and duty to determine whether the uses
     for which the application    la made meet
     the statutory   objectives,  Including that
     of being In the public interest.      i .
                  “Every consideration     for veat-
     lng such original     discretion    In the’Board~
     applies with equal force for its exercise
     in case of change of purpose or place of
     use, ,We therefore     think there Is implicit
     in these provisions      of our laws, constl-
     tutlonal   and statutory,     a vesting ln the
     Board of the continuing duty of supervialon
     over the distribution      and une of the public
     waters of the State so as to see that the
     constitutional     and statutory    objectives  are
     attained,   and carrying with It the require-
     ment that any substantial        change In use or
     place of use not authorized in the original
     permlt, must have the approval of the Board.
We believe   that the foregoing  language makes it clear
that the same considerations    which are Indulged in by
you in granting the orlglnal    permit are to be considered
by you ln passing on the application     for change.   These
considerations   are set forth in Articles   7506 and 7507,
v. c. s., wherein it Is provided that in paselng on the
original   permit you are to determine the availability
of unappropriated water from the source of supply, IS
the proposed use will be for a statutory     purpose, inpair
Hon. E. vs Spence - Page 3 --     V-390



cxlstlng  rights, both rlparlan    and approprlatlve,    and
the public welfare Involved.
                It has been held in Mot1 v. Boyd, 116
Tex. 82, that the function performed by you in the
matter of hearing on and issuance of the original      per-
mit is not a judicial   function,    In our opinion,  so
long as your function as regards change of purpose
and place of use is confined to regulation      of the al-
ready exlatlng pemnlt and your deliberations      are
limited to the same considerations     which are Involved
In issuing the origlnaa permlt, the function per-,
formed by you is non-judicial     and we construe this
to be, In substance,   the holding of Clark v. Briscoe
Irrigation  Co., supra.
                 In summary then, when passing on appll-
cation for change of purpose and place of use, you are
performing an administrative     function,    one which con-
cerns regulation   or supervision   of an already issued
permit, and in SuIflIIing    this function you determine
in the usual manner after public notice and hearing,
if the proposed change wiII be for a,purpose authorized
by statute,  will Impair existing     rights,   and the public
welfare involved In the change.       With these consldera-
tlons in mind, we turn to your question.
                  The question of relative rights between
irrigation    companies and persons served or entitled   to
;zorrved    by them has been the subject of much Iitlga-
         See comment in 7 Texas Law Review, pages 453 to
46g,*incIuslve,    44 Tex. Jur. page 349, Sec. 226, and
cases there cited,     These ri hts as between such par-     .,:
ties are defined by statute 'i;Arts. 7555, 7556, 7559,      . . .‘
V. C. S.) and except on questions of rates (Arts.7560
and 7567, inc,) are subject to determination     in the
usual manner before the courts of this State.
                 If It 1s required that releases    be Sur-
nlahed, the only effect   of such a requirement can be
that permlttee irrigation   company must tender to your
Board evidence of the fact that it has clear and unen-
cumbered title   to the waters involved and that no
interest  is outstanding therein through contract,
right of easement, or other rlght secured to the Iand-
owner by statute,    Such a requirement necessarily    an-
ticipates   that it will then be your duty to determine
         Hono E. V. Spence - Page 4 --V-390


          the validity   of such title,   resolving   conflicts    where
          these arise,   and the sufficiency     of the instruments
          which purport to reconvey the right or title          to the
          Irrigation   company. In our opinion,      such action on
          your part would constitute     the exercise   of a judicial
          function.
                           In this connection,    It has been urged
         In briefs   submltted to us on this question,      that the
         granting of the application       to change without Sur-
         nlshing releases will deprive non-releasing        landowners
         of vested property rights.       Thls view, In our opinion,
         misconceives   the effect    of your action In granting the
         application   for change,     The administrative   action
         which you take on the application       obviously  cannot af-
         fect relative    rights which exist between irrigation
         companies and landowners, whether releases be Surnlsh-
         ed or not.    Whatever these rights are, your action,
         unless It be judicial,      cannot determine them. Pour
         concern relates     to the permit, the given quantity of
         water permitted therein,      and the change of purpose and
         place of use thereof.       The permit which you issue
         granting the change is necessarily       contingent upon
         permlttee irrigation     companyfs settling    and acquiring
         any outstanding rights acquired by contract or opera-
         tion of law in the quantity of water allocated         to it
         by its permit.      Simply because It has the permission
         of your Board to make the change does not mean that the
         landowner can no longer assert contractual        or other
         rights which he may have against the Irrigation         com-
         pany in the water and prevent the change If he elects
, i ~    to take this course,      Whatever rights are vested ln
         hlmcannot be taken away or added to by your Board and,
         in our opinion,     to require releases   in such cases would
         serve no useful purpose as regards your function in the
         matter.
                          We do not mean that on the hearing you
          are to give no consideration   to the desires of the land-
        : owners in the matter.    Their views on the change, as ex-
          pressed at the public hearing, must necessarily      affect
          your decision  in the matter, and we conceive the public
          notice of and hearing on the application     for change as
          the ,proper approach in these cases.    This procedure Sur-
          nlshes ample opportunity   for the landowner to appear and
          express his Views in the matter.     In addition,  if re-
          leases are required,  it becomes evident that the lrrl-
          gatlon company will have to operate during the period
Hon. E, V. Spenoe - Page 5 -- V-390


COVePed Prom the date of the release to the date of
your decision,  absent whatever contractual    or prior
arrangewent it may have had withthe      landowner.    In
short, the irrigation   company muat go out of business
awing this period and,in advance of knowing whether
a change will be permitted.    We have already stated
that releases would serve no'useful     purpose and for
reasons just indicated,   we believe   that to require
them would be manifestly   unjust and unduly burdensome
on both landowner and irrigation     company.
                  To require releases would unnecessarily
complicate   the proceeding.    It would become necessary
for you'~to determine the legal sufficiency       of the re-
lease and since a water ri ht is subject to recordation
(Article   7559, V, C. S.; 'd T, J, p. 65, Sec. 49) and
is treated for the purpose of transfer and conveyance
as an interest    inland   (APL 7559; 44 T. J, ppe 62 to
65, Inc.) the form of the release and,'che legal       suffi-
ciency thereof as a conveyance would require your ae-
cision.    Questions relative   to the sufficiency    of the
execution of such instruments and to the parties ne-
cessary to join therein would necessarily       arise, bring-
ing with them questions concerning the sufficiency         of
acknowledgments, questions of heirship,       matters re-
lating to wills,     and passage of title  generally   through
decedent water right owners.      We see no reason why you
should be required to pass on these matters even though
you might have the power to do so.
                  We are, therefore,   unable to find any
basis for requiring releases     in connection with your
function a8 regards the application      for change, nor do
we see how such releases would add to or assist in your
deliberations    as to whether the proposed change in-
volves a use authorized by law, impairs existing        rights,
or is detrimental    to the public welfare.     We construe
existing   rights in such cases as being the rights of
other appropriators    holding under permits issued by
your Board, but even though existing      rights do include,
as well they might, righks acquired by the landowner in
the irrigation    coxnpany~s water, from what we have already
said your consideration     in this regard does not require
an actual release or conveyance to the irrigation         com-
pany of such rights.
                 The briefs   previously   referred   to deal at
Hon. E. V. Spence - Page 6 -- V-390


length with the numerous decisions          in this State
concerning rights between irrigation           companies and
the persons served by them. These decisions,             un-
doubtedly,    show that, very definite      property rights
are acquired by the landowner in the water permitted
to and furnished by the irrigation          company. From
what we have already said, we consider a discussion
of these cases unnecessary.        One point, however, is
made whiOh we deem it necessary to give consideration.
This involves the assertion       that water and the, rights'
perfected    therein when devoted to particular         land be-
comes inseparably     attached or appurtenant to that land
and no right of change of purpose or place of use ex-
ists,   with or without your Board's approval.           This
matter has been considered at length by Kinney in Ns
work on Irrigation     and Water Rights, 2nd Ed.;Vol.          2,
pages 1811 to 1820, inc., Sections 1015 and 1016,
wherein grave doubts are raised as to whether water
rights may become inseparably        appurtenant to land
even when made so by statute,        referring    to Wyoming
and Idaho statutes,      but clearly    showing that the wa-
ter right may not become inseparably           appurtenant in
the absence of an express statute dealing with the
subject.     See also Hutchins, Selected Problems in
the Law of Water Rights, U. S. Department of A ricul-~
ture Miscellaneous     Publication    No. 418, page 38 5.
We find no statute,      or for that matter court deci-
sion, in this State which makes the water right in-
separably appurtenant to particular           land so as to
preclude jurisdiction      of your Board over change of
purpose and place of use.        Lakeside Irrigation       Co.
v. MarkhamIrrigation       co., 285 S.W. 593; Dunbar v.
Texas Irrigation     Co., 195 S. w, 6143 Louisiana RIO
Granae Canal Co. v. Frazier,        196 S, W. 210; Neches
Valley Irrigation     Company v. Howard, 206 S.W. 575’
and Combs v. United Irrigation        Company, 110 S.W. 22)
1157, have all been cited to us as sustaini;:             k: in-
separable appurtenance proposition          urged.
opinion,    none of these cases decide the question.
.

    Bon. E. V. Spence - Page 7 --   v-390




                In passing on applications  to
         change the purpose and place of use
         of permitted waters, the Board of
         Water Engineers need not require ir-
         rigation   companies to furmish ixleases
         by landowners of their rights in the
         permitted waters as a requisite    to the
         Board's jurisdiction   in the matter.

                                    Pours very truly
                              ATTORNEYGENERALOFTEXAS




    BDPrbt                                       Assistant




                              ATTORNEYGENERAL