
    PARKER v. EL PASO COUNTY WATER IMPROVEMENT DIST. NO. 1.
    (No. 4185.)
    Supreme Court of Texas.
    June 22, 1927.
    1. Constitutional law <&wkey;278(I) — Waters and water courses <&wkey;>216 — Conservation amendment to Constitution does not deprive riparian owners within improvement districts of property without due process (Const. U.- S. Amend. 14; Const. Tex. art. 16, § 59).
    The conservation amendment to the Constitution (Const, art. 16, § 59), declaring that the conservation and development of all natural resources, including the control, storing, preservation, and distribution of storm and flood waters, waters of rivers and streams, for irrigation, power, and all other useful purposes, the irrigation of lands, drainage of lands, development of forest, water and hydroelectric power, and the navigation of inland and coastal waters, are public rights and duties, and providing for appropriate laws, and for conservation and reclamation districts, and for authorization of indebtedness, bonds, and taxes, is not repugnant to due process clause of the Constitution of the United States (Const. U. S. Amend. 14).
    2. Waters and water courses <&wkey;226 — Riparian lands lawfully included in irrigation district held entitled to benefits and- subject to burdens of district (Const, art. 3, § 52, and art. 16, § 59; Acts 1917, c. 87; Acts 4th Called Sess. 1917, c. 25).
    Riparian lands included in water improvement district which was organized under Acts 1917, c. 87, enacted under Const, art. 3, § 52, and which subsequently became a conservation and reclamation district under Acts 4th Called Sess. 1917, c. 25, enacted under Const, art. 16, § 59, held entitled to the benefits thereby conferred and subject to the duties and burdens incidental to the organization and operation of the district.
    3. Waters and water courses <&wkey;2l6 — Water Improvement District Act, authorizing creation of districts out of territory in more than one county, is valid (Const, art. 3, § 52; Acts 1917, c. 87).
    The Water Improvement District Act (Acts 1917, c. 87), authorizing the creation of water improvement districts out of territory in more than one county, is valid and constitutional, being authorized by Const, art. 3, § 52.
    4. Waters and water courses <&wkey;226 — Inclusion of riparian land in irrigation district held lawful (Const, art. 3, §.52, and art. 16, § 59; Acts 1917, c. 87; Acts 4th. Called Sess. 1917, c. 25).
    Inclusion of riparian land in irrigation district held lawful, being authorized by Const, art. 3, § 52, providing for the creation of irrigation districts, road districts, and other districts without any distinction as to the land to be included, by Acts 1917, e. 87, enacted thereunder providing for the organization of irrigation districts and by the subsequently adopted conservation amendment to the Constitution (Const, art. 16, § 59), declaring irrigation and, other things to be public rights and duties, and providing for conservation and reclamation districts, and by Acts 4th Called Sess. 1917, c. 25, enacted thereunder.
    5. Waters and water courses <&wkey;226 — That landowner does not desire inclusion in irrigation district, or that land is riparian, does not render inclusion contrary to due process (Const. U. S. Amend. 14; Const. Tex. art. I, § 19, art. 3, § 52, and art. 16, § 59; Acts 1917, c. 87; Acts 4th Called Sess. 1917, c. 25).
    The fact that a landowner does not desire his land to be placed in an irrigation district organized under Acts 1917, c. 87, enacted under Const, art. 3, § 52, and becoming a conservation and reclamation district under Acts 4th Called Sess: 1917, c. 25, enacted under Const, art. 16, § 59, or that he does not desire to irrigate it, or that he could irrigate it from a different source, or that it is riparian land, does not make its inclusion in the district contrary to the due process clause in state or federal Constitution (Const. U. S. Amend. 14; Const. Tex. art. 1, § 19).
    6. Waters and water courses <&wkey;>226 — Irrigation district may constitutionally include property not receiving direct benefit, including cities and towns.
    Property not receiving a direct benefit, including cities and towns, may constitutionally be included in an irrigation district.
    7. Constitutional law <@=o278(l)— Landowner cannot be deprived of his irrigation ditch or of its use without due process (Const. U. S. Amend. 14; Const. Tex. art. I, § 19).
    Landowner cannot be deprived of his irrigation ditch or of its use, without consent or grant, or some form of due process, under the due process clauses of Const. U. S. Amend. 14, and Const. Tex. art. 1, § 19.
    8. Waters and water courses <&wkey;49 — Where no effort was made to deprive landowner of his ditch or its use, he was not entitled to injunction against district.
    Where water improvement district was making no effort to take a landowner’s proper-, ty right in his ditch or to interfere with his use thereof, held, that the landowner was not entitled to an injunction against the district against such acts.
    9. Constitutional law <&wkey;277(l) — Riparian owner’s right to proportion of riparian water is property within constitutional guaranties (Const. U. S. Amend. 14; Const. Tex. art. I, § 19).
    The right of a riparian owner to his just proportion of the riparian water which flows by his land is an incident to his ownership of the land, a part and parcel of land, and property, within meaning of constitutional guaranties including guaranty of due process by state and federal Constitutions (Const. U. S. Amend. 14; Const. Tex. art. 1, § 19).
    10. Waters and water courses <&wkey;40 — If riparian owner does not use his proportion of riparian water, others may do so (Const. U. S. Amend. 14; Const. Tex. art. I, § 19).
    If a riparian owner whose land is included in an irrigation district takes and uses his proportionate share of the riparian'’water, the irrigation district cannot take and distribute it without his consent, under due process clauses in state and federal Constitutions (Const. U. S. Amend. 14; Const. Tex. art. 1, § 19), but if he does not take and use the water, others including those in the irrigation district, or the district, if authorized by. them, may do so.
    11. Waters and water courses @=>40 — Riparian owner is entitled to correlative proportion of “riparian water” and to this only.
    A riparian owner is entitled to take his just correlative proportion of riparian water and to conduct it to and to use it on his land, and he is not entitled to take any other water; “riparian water” being that which is below the highest line of normal flow of the river.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Riparian.]
    12. Appeal and error @=>907(3) —Appellate court will assume that trial court’s finding was justified, and no further finding authorized, where there is no statement of facts.
    In the absence of a statement of facts in the record, the appellate court will assume that a finding of the trial court is justified by the facts, and that no further finding on the subject was justified.
    .13. Waters and water courses @=>44 — Irrigation district was entitled to use river to deliver water from places of storage to places of úse, regardless of riparian rights (Rev. St. 1925, art. 7548; Acts 4th Called Sess. 1917, c. 25).
    An irrigation district existing under Acts 4th Called Sess. 1917, c. 25, enacted under Const, art. 16, § 59, held entitled to use the channel and banks of river to deliver its storm, flood, or rain water from the place of storage to the places of use by the terms of Rev. St. 1925, art. 7548, regardless of riparian rights.
    14. Waters and water courses @=>49 — Where there was no showing that irrigation district’s use of channel of river injured riparian owner, injunction was properly denied.
    Where there Was no showing that irrigation district’s use of channel of river to convey its storm water to the lands of the district for use caused any injury to petitioner, an injunction was properly denied as to that feature of the case.
    Error to Court of Civil Appeals of Eighth Supreme Judicial District.
    Suit for injunction and to remove a cloud on title brought by A. H. Parker against the El Paso County Water Improvement District No. 1. Judgment for defendant was affirmed by the Court of Civil Appeals (260 S. W. 667), and petitioner brings error.
    Affirmed.
    F. G. Morris, of El Paso, for plaintiff in error.
    R. F. Burges, of El Paso, for defendant in error.
   CURETON, C. J.

El Paso county improvement district No. 1 is an irrigation district, organized under the act of 1917. Chapter 87, Acts of the Thirty-Fifth Legislature. It embraces 85,000 acres of land, 81,000 of which are riparian to the Rio Grande river. The district was organized in 1917, and subsequent to the adoption of the Conservation Amendment to the Constitution and the enactment of chapter 25, Acts of the Fourth Called Session of the Thirty-Fifth Legislature, became .a conservation and reclamation district in accordance with the terms of the statute. The plaintiff in error owns a tract of 380 acres of land in the district, which is riparian to the Rio Grande river. At some time, the exact date of which is not shown by the record, but prior to the institution of this suit, the defendant in error entered into a contract with the United States of America, through the Department of the Interior, for the construction and acquisition of certain storage, distribution, and drainage works, for the distribution of certain flood waters of the Rio Grande, filed upon and appropriated by the United States in or about the year 1906, impounded by the Elephant Butte dam of the United States Reclamation Service, and for the distribution of certain drainage waters. There is no statement of facts before us, and neither the pleadings nor findings of fact of the trial court disclose the terms of this agreement, a description of which we have taken from the defendant in error’s pleading. The trial court found that such a contract had been entered into, and that the organization of the district and the validity of this contract with the United States had been confirmed and approved by a judgment duly entered in the district court. However, the pleadings in this confirmation suit and judgment are not in the record. We therefore are not informed as to the parties to the litigation, nor what was embraced in and concluded by the decree. This suit, however, is not one to set aside that judgment.

The plaintiff in error in his petition alleges that the improvement district has, and exercises under the laws of the state of Texas, and of the United States, such rights and authority as by law are conferred under the reclamation laws of the United States for the distribution of water to the lands in the Rio Grande Valley in El Paso county; that under this authority the district excavates ditches for irrigation and drainage in the valley, and assesses charges for the use of the reclamation service and for the construction and maintenance of such irrigation system. The amount which the district assesses and collects as charges and expenses is not alleged. Plaintiff in error does allege that the district has set up a claim of right to collect .charges from him for the use of water from the river on his land, which is described by metes and bounds in tbe petition. I-Ie alleges that tbe district bas heretofore set up and claimed a charge and lien on his land for past accrued charges for the use of water on the land, and for other expenses of the reclamation service, and asserted the right to deny him the use of water to irrigate his land. He alleges that the district. filed suit against him in the Forty-First district court of El Paso county, to enjoin him from the use of water from the river on his land for irrigation purposes, until he executed a contract to the district in the usual form of those executed by other owners of land in the valley, whereby he should agree to pay for the water to be used on the land and part of the expenses for the reclamation service and for water theretofore used from the river. He states, however, that this suit was dismissed by the district, but that “this was done of record without prejudice to said improvement district’s rights” against him. He states that in virtue of his riparian rights he has the right to take water from the river for the irrigation of his land, for which purpose he built a ditch in 1907, and has ever since maintained and used it. He alleges that he still owns the right to use the ditch and to take water therefrom, for the purpose of irrigating his lands by the use of his riparian water from the river; that he has been taking water from the channel of the Rio Grande for this purpose, and in this way, and intends to continue to do so. He states that he has not signed or executed any contract with the district to pay for the use of said water, or for charges, assessments, or taxes, for the maintenance of a system of storing water for irrigation, and he denies all authority of the improvement district to require him to pay any of said charges for the privilege of using water from the Rio Grande, as he has heretofore used it in virtue of his riparian rights. He states that the statutes and contracts under which the district exercises authority to store, control, and distribute water for irrigation purposes, and charge therefor, have no application to his riparian rights as he has pleaded them. He says that the laws and contract under which the improvement district is acting must be read and understood to apply only to the water rights acquired by the United States under its appropriation of the waters of the Rio Grande, and not to include his riparian lands, and that he is in no manner bound thereby. He alleges that to require him to sign any agreement such as he charges the district desired him to sign, and to conform to the improvement district’s rules and regulations, would require him to pay value for all the water he might use, and would be in substance and effect to deprive him of the riparian rights he owns as a part of his lands, without due process of law and without adequate compensation, in violation of the due process clauses of the federal and state Constitutions. He charges that the claim of the improvement district “of said charges and liens,” and its threatened attempt to enforce the same, constitute a cloud on the title to his land, for the removal of which he brings the suit. He also states that the district threatens to immediately shut off the water flow of said river through his ditch, and onto said land, and to obstruct the ditch with its own construction, and thus render it impossible for him to get water through the ditch. His prayer is for an injunction against the district, enjoining it from obstructing the flow of water from the Rio Grande through his ditch, and onto parts of his land, and for judgment removing the cloud from his title, etc.

The improvement district answered by exceptions, general denial, and special pleas, which we think unnecessary to set out. The case was tried before the court without a jury, and judgment rendered in favor of the improvement district. On appeal by the plaintiff in error, this judgment was affirmed. (Tex. Civ. App.) 260 S. W. 667. In this judgment the trial court decreed that plaintiff in error’s lands were part and parcel of the El Paso county water improvement district No. 1, “and are lawfully entitled to the benefits arising therefrom, and are lawfully subject to such taxes as may be from time to time lawfully levied and assessed by said district, and that the prayer of plaintiff for removal of cloud to his title to such lands should be denied, and it is so ordered.” The court further found in its judgment that the district was not interfering, nor threatening to interfere, with the use by plaintiff of the irrigation ditch described in the petition, nor with the right to flow and use water therein. The court, therefore, denied the’ prayer for injunction, dismissing it “without prejudice to the right of plaintiff to introduce proceedings at any time hereafter, should his use of said ditch or any water therein or thereby to which he may be claiming to be entitled be interfered with by the defendant.” The court made findings of fact and law. His findings of fact, in so far as necessary, will now be stated:

The court found that the plaintiff in error had irrigated a large portion of his land from the Rio Grande river, but for some, time prior to the construction of the Elephant Butte dam the water was insufficient to completely and efficiently irrigate it; that some crops, however, were grown by plaintiff in error thereon each year. The' improvement district uses the channel of the Rio Grande above and by plaintiff in error’s land to flow water thereto and by for irrigation. The court found that prior to the construction of the Elephant Butte dam the supply of water in the river was inadequate to irrigate the lands in the improvement district if generally distributed among them, but that since tbe construction thereof tbe conserved water supply is adequate for tbe irrigation of all lands embraced in tbe district, including that of plaintiff in error. Tbe court also found that plaintiff in error did not protest tbe organization of tbe district, nor seek to bave bis lands removed therefrom. Tbe eighth finding of fact by tbe court reads as follows:

“(8) Defendant improvement district is not interfering with, nor at present seeking to restrain, tbe use of water by plaintiff from tbe diteb described in bis petition, but defendant has asserted, and does assert, tbe right to levy taxes upon tbe lands included therein, for tbe support of such reclamation district.”

The • court found that in April, 1922, tbe district did file suit wherein it denied plaintiff in error’s right to use water for irrigation on bis land, until and unless he should sign tbe agreement required by it, which would bave charged bis land with a proportionate part of the expenses for building tbe dam and constructing tbe irrigation system, and sought to enjoin plaintiff in error’s use of tbe water until he did do so; that later it dismissed this' suit without prejudice. He states, however, in bis finding, that:

“The sole right now asserted hy defendant irrigation district is a right to levy taxes upon the plaintiff’s land for the support of said reela/mar tion project." (Italics ours.)

He also stated that all tbe land included in the district was. in an arid portion of tbe state, and could not be successfully farmed except by irrigation.

Tbe court rightly concluded as a matter of law that section 59, art. 16, authorized tbe statute enacted by tbe Legislature relative to the organization of improvement districts, and that this amendment to our Constitution was not repugnant to tbe Constitution of tbe United States. He concluded, also, that the plaintiff in error’s lands were lawfully included within tbe improvement district, and were entitled, in common with all other riparian lands included therein, to tbe benefits thereby conferred, and were likewise subject to tbe duties and burdens incident to the organization and operation of tbe district; that tbe fact that tbe plaintiff in error’s lands, in common with most of tbe lands in tbe district, were riparian, did not affect the question.

Since tbe terms of tbe contract of the district with the Reclamation Department of tbe United States are not given, either by pleading or proof, and tbe purported assessments and charges for tbe use of the reclamation service and expenses for construction and maintenance are not shown, nor the terms of any contract or instrument by which they were sought to be imposed given, we bave no means of passing upon tbe question as to whether or not tbe claims of tbe district in this respect were, or are, a cloud upon plaintiff in error’s land, once it is concluded that bis land was rightly included in tbe improveihent district. If bis lands are lawfully a part of the district, then we agree with tbe trial court that they “are entitled, in common with all other riparian lands included therein, to the benefits thereby conferred, and are likewise subject to the duties and burdens incident to the organization and operation of the district.” We think his lands were rightly included in the district. There is nothing in the statutes which in the remotest degree tends to sustain the view that riparian lands are not to be embraced in water improvement districts; on the contrary, in the very nature of things, the larger portion of all irrigable lands are within the watershed of streams available for irrigation, and are usually riparian to the streams. That the Water Improvement District Act, authorizing the creation of districts where the territory is in more than one county, is valid and constitutional, has recently been held by this court. Trimmier et al. v. Carlton et al. (Tex. Sup.) 296 S. W. 1076, recently decided, but not yet officially published. See, also, Barstow v. Ward County Irrigation Dist. No. 1 (Tex. Civ. App.) 177 S. W. 563 (writ refused); Texas & P. R. Co. v. Ward Co. Irrigation Dist. No. 1, 112 Tex. 593, 251 S. W. 212; Hester & Roberts v. Donna Irrigation Dist. No. 1 (Tex. Civ. App.) 239 S. W. 992 (writ refused).

Acts similar to our own have universally been held to be constitutional. 3 Kinney on Irrigation (2d Ed.) §§ 1405, 1408; 2 Wiel on Water Rights (3d Ed.) §§ 1356, 1357; Turlock Irrigation District v. Williams, 76 Cal. 360, 18 P. 379; Long on Irrigation (2d Ed.) § 297; Fallbrook Irrigation District v. Bradley, 164 U. S. 112, 164, 17 S. Ct. 56, 41 L. Ed. 369; In re Madera Irrigation District, 92 Cal. 296, 28 P. 272, 675, 14 L. R. A. 755, 27 Am. St. Rep. 106.

Our attention has not been called to any authority which even tends to support plaintiff in error’s contention that riparian land cannot be included in an irrigation district; nor has our attention been called to a single irrigation district case where riparian land was not embraced in the district, nor a single statute which excludes it. Courts and.lawmakers alike appear to have assumed that a district, otherwise valid, could embrace riparian land.

The improvement district was originally organized under chapter 87, Acts of 1917, and subsequently, after the adoption of the Conservation Amendment to the Constitution and the passage of an Enabling Act, it became in the statutory way a conservation and reclamation district, operating under the Conservation Amendment to the Constitution. At the time of its original creation, however, and the passage of the act under which it was organized, the Conservation Amendment to the Constitution had not been adopted. The authority for the enactment of the law of its original organization was section 52 of article 3 of the Constitution. These are the section and article which have been before the courts recently, and all are familiar with them. They authorize the issuance of bonds upon a vote of the people in “any .county, any political subdivision of a county, any number of adjoining counties or any political subdivision of the state or any defined district now or hereafter to be described and defined within the state of Texas,” for the following purposes:

“(a) The improvement of rivers, creeks, and streams to prevent overflows, and to permit of navigation thereof or irrigation thereof, or in aid of such purposes.
“(b) The construction and maintenance of pools, lakes, reservoirs, dams, canals and waterways for the purposes of irrigation, drainage or navigation, or in aid thereof.
“(c) The construction, maintenance and operation of macadamized, graveled or paved roads and turnpikes, or in aid thereof.”

It will be observed that this section of the Constitution authorized the creation of irrigation districts, road districts, drainage, navigation, and other districts, without any distinction as to land which might be included in any of them. It no more exempts riparian land from irrigation districts' than it exempts such land from road districts or navigation districts, or districts organized for the prevention of overflows, which we call levee districts. Were we to say that this section of the Constitution did not authorize the inclusion of riparian land in irrigation districts organized under it, we would be compelled to say that riparian land was likewise excluded from every other class of districts authorized by the constitutional provision. It states in very definite terms over what territory the agencies of the government created under it may exercise their power. As shown by that portion of the section quoted, “any county,” “any political subdivision of a county,” “any number of adjoining counties,” “any political subdivision of the state,” “any defined district now or hereafter to be described or defined,” is authorized, upon proper vote, to engage in the improvements subsequently specified. It will be seen by reading the section that it also expressly says that any of these districts or subdivisions “may or may not include towns, villages, or municipal corporations.” It is thus apparent that the Constitution contemplated that riparian as well as other land might be included within any of the districts named; for it would b.e absurd to say that riparian land could not be included in a county, or any other of the various political subdivisions or defined districts designated. The fact also that such districts were authorized to include towns, villages, or municipal corporations, clearly shows that it was not intended that any land within the boundaries of such districts should be exempt from the burdens authorized to be imposed by such governmental agencies, provided the inclusion was in accordance with the rules of due process governing the creation of local improvement districts. But that riparian land could not be included in an irrigation or other district, merely because riparian, is clearly negatived by the terms of the constitutional provision.

When we come to the Conservation Amendment to the Constitution, § 59, art. 16, under which the district here involved now exists, the meaning is equally as clear that riparian lands may be included. The Conservation Amendment provides that there may be created within the state, or the state may be divided into, such number of conservation and reclamation districts as may be deemed essential to the accomplishment of the purposes of the amendment. t is declared that these districts shall be governmental agencies, and bodies politic and corporate, “with such powers of government and with the authority to exercise such rights, privileges and functions concerning the subject-matter of this amendment, as may be conferred by law.” The purposes of the amendment are specified in subdivision (a) thereof, and among these purposes is: “The reclamation and irrigation” of “arid, semiarid, and other lands needing irrigation.” The language quoted necessarily embraces riparian land, since land of that character may be arid, semiarid, or may need irrigation, in the same manner and to the same extent as nonriparian land. ■

The district here involved is now, as we have previously stated, a conservation and reclamation district, and the unchallenged finding of ,the trial court that the land of plaintiff in error “is in the arid portion of Texas, and cannot be successfully farmed save by irrigation,” clearly brings it within the class of lands which the Constitution ex-, pressly declares may be embraced in conservation and reclamation districts. It is apparent to us, therefore, that under the constitutional provision effective at the time the land of plaintiff in error was first placed in the improvement district, as well as under the Conservation Amendment to the Constitution, the fact that it was riparian did not exclude it from the operation of the laws by which the district was originally created, or by which it became a conservation and reclamation district; in other words, under both provisions of the Constitution, riparian land could be placed in an irrigation district.

It is equally certain that the fact that defendant in error might not desire his land placed in the district; that he might not desire to irrigate it at all; that he could irrigate it from a different source; or that it was riparian land, would not prevent its inclusion in the district under the due process clause of the federal Constitution (Const. U. S. Amend. 14). Fallbrook Irrigation District v. Bradley, 164 U. S. 112, 17 S. Ct. 56, 41 L. Ed. 369; Hester & Roberts v. Donna Irrigation District (Tex. Civ. App.) 239 S. W. 992 (writ refused).

In the Fallbrook Case, supra, the admitted facts were that the Bradleys were the owners of 40 acres of land in the irrigation district, w.orth $5,000, subject “to beneficial use without the necessity of water for irrigation, and that it has been used beneficially for the past several years for purposes other 'than cultivation with irrigation.” 164 U. S. 166, 17 S. Ct. 66. The admitted facts stated, the extracts from the argument of Mr. Joseph Choate,, counsel for the Bradleys, appearing in the report of the case, as well as the opinion of the court itself, show that the question was squarely before the Supreme Court as to whether or not lands which the owners did not care to irrigate, or which might not need irrigation from the improvements proposed by a district, could under the Constitution be included in an irrigation district. The Supreme Court held they could be included, holding that the irrigation of land was a public purpose, and the use of water thereon a public use, and that irrigation districts, such as the one before us, were public corporations, with power to tax any land included in the district, provided its inclusion was in accordance with the rules of due process. The court in part said:

“If it be essential or material for the prosperity of the community, and if the improvement be one in which all the landowners have to a certain extent a common interest, and the improvement cannot be accomplished without the concurrence of all or nearly all of such owners by reason of the peculiar natural condition of the tract sought to be reclaimed, then such reclamation may be made and the land rendered useful to all and at their joint expense. In such case the absolute right of each individual owner of land must yield to a certain extent or be modified by corresponding rights on the part of other owners for what is declared upon the whole to be for the public benefit.”

The court sustained the validity of the California Irrigation Act (St. 1919, p. 671), which was the primary question involved in the case, as well as the right to include the land of the Bradleys in the district. See, also, 1 Cooley on Taxation (4th Ed.) § 206.

The authorities also hold generally that property though not receiving a direct benefit, including cities and towns, may be included in an irrigation district. Fall-brook Irrigation District v. Bradley, supra; Board of Directors of Modesto Irrigation District v. Tregea, 88 Cal. 334, 26 P. 237; In re Madera Irrigation District, 92 Cal. 296, 28 P. 272, 675, 14 L. R. A. 755, 772, 27 Am. St. Rep. 106; Long on Irrigation (2d Ed.) § 297, p. 529; 3 Kinney on Irrigation (2d Ed.) § 1412.

On the whole, we conclude that plaintiff in error’s contention that his land, because riparian, could not be included in the improvement district, is without merit, and it is overruled.

If the plaintiff in error owns a ditch, he cannot be deprived of that property, nor its use, without consent or grant, or some form of due process. Const. U. S. Amend. 14; Const. Tex. art. 1, § 19; Long on Irrigation (2d Ed.) § 118. But, as we understand the record in this case, and the decree and findings of the trial court, no effort is being made by the defendant in error to take plaintiff in error’s property right in his ditch, or to deprive him of its use. As to that, he therefore was not entitled to an injunction.

The plaintiff in error, as a riparian, has the right to take his just correlative proportion of riparian water from the Rio Grande river, and conduct it to and use it on his land. Long on Irrigation (2d Ed.) §§ 34, 35; Watkins Land Co. v. Clements, 98 Tex. 578, 86 S. W. 733, 70 L. R. A. 964, 107 Am. St. Rep. 653; Board of Water Engineers v. McKnight, 111 Tex. 82, 92, 229 S. W. 301.

The improvement district cannot take that water and distribute it without his consent, -provided he desires to and does use it. The right of the riparian to his just proportion of riparian water which flows by his land is an incident to his ownership of the land, and is a part and parcel of the land. It is property within the constitutional guaranties. Long on Irrigation (2d Ed.) § 34; Board of Water Engineers v. McKnight, 111 Tex. 82, 92, 229 S. W. 301.

If the plaintiff in error does not take his proportionate share of the riparian water and use it, then that proportion to which he is entitled, so long as he does not take it, under the modified rules of the common law applicable to the arid or semiarid states, increases the residue of riparian .water 'in the river available for the use of others, including those whose lands are in the improvement district, and may be taken out of the river by them, or by the district for distribution, if they have authorized it to do so. Long on Irrigation (2d Ed.) § 31; 1 Kinney on Irrigation (2d Ed.) § 549, and volume 2, § 1611; 2 Farnham on Water Rights, § 497; San Joaquin, etc., Irr. Co. v. Fresno Flume & Irr. Co., 158 Cal. 626, 112 P. 182, 35 L. R. A. (N. S.) 832; Modock, etc., v. Booth, 102 Cal. 151, 36 P. 431, and Humphreys-Mexia Co. v. Arseneaux, 297 S. W. 225, and Texas Co. v. Burkett, 296 S. W. 273 (both decided by this court at the present term, but not yet officially reported).

However, we do not understand that the improvement district claims any right to take plaintiff in error’s proportionate sliare of tlie riparian water, if lie desires to use it, or that it is interfering with plaintiff in error’s right to do so. As we understand the record, the district only claims the right to take from the river the flood waters impounded by the Elephant Butte dam by the United States Reclamation Service (or other flood waters, if any, to which it may he entitled), and the just proportion of riparian water which the riparian proprietors in the district have severally consented it shall take and distribute. This the district has the right to do. As to this water, plaintiff in error has no claim or right. As a riparian owner, he is only justly entitled to his proportion of the riparian water, which is the water below the highest line of the normal flow of the river. Motl v. Boyd (Tex. Slip.) 286 S. W. 458. As to the water above that line, whether impounded by the United States Reclamation Service or running after rainfall in the bed of the stream, plaintiff in error has no interest except as a landowner in the district taking water under the distribution system of the district.

The plaintiff in error in his supplemental petition alleged that the defendant in error had turned its impounded waters into the open channel of the Rio Grande, and permitted the same to mix and mingle with the natural and ordinary flow of the surface and underground waters of the river, to such an extent and in such manner that the same became a part of the riparian waters of the stream, and therefore subject to use by him.

The only finding of fact which has come to our notice in the record on this question is that in the second paragraph of the trial court’s findings, in which the court found that the defendant in error used the channel of the Rio Grande above and by plaintiff in error’s land to flow the water to and by plaintiff’s for irrigation. Since there is no statement of facts in the record, we must assume that the finding of the court is justified by the facts, and that the facts authorized no further finding as to the use of the channel of the river for the purposes stated, or as to the confusion of waters, if any, thereby brought about. The defendant in error in using the channel and banks of the Rio Grande for delivering its storm, flood, or rain water from the place of storage to the places of use, was acting clearly within the terms of the statute, and within its legal rights, regardless of the question of riparian rights. Revised Statutes 1925, art. 7548; Long on Irrigation (2d Ed.) § 117; 2 Kinney on Irrigation (2d Ed.) § 832; 1 Wiel on Water Rights (3d Ed.) §§ 38, 38a, 39, 40; Hoffman v. Stone, 7 Cal. 46; Miller v. Wheeler, 54 Wash. 429, 103 P. 641, 23 L. R. A. (N. S.) 1065; Butte Canal & D. Co. v. Vaughn, 11 Cal. 143, 70 Am. Dec. 769; Wiggins v. Muscupiabe Co., 113 Cal. 182, 45 P. 160, 32 L. R. A. 667, 54 Am. St. Rep. 337; Wutchumna Water Co. v. Pogue, 151 Cal. 105, 90 P. 362. See, also, many cases in the notes to the sections of the texts cited above.

Since it is clear the improvement district had the right to use the channel of the Rio" Grande to convey its stored waters, or the stored waters to which it was entitled, 'to the lands of the district for use, the absence of a finding in this record of any injury thereby to the plaintiff in error shows, as to this feature of his ease, that the injunction was properly denied.

We are of the opinion that the judgments of the trial court and Court of Civil Appeals are correct, and ought to be affirmed.

Both judgments are accordingly affirmed. 
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