
    MARTIN et al. v. BURR et al.
    (No. 2789.)
    (Supreme Court of Texas.
    Feb. 23, 1921.)
    1. Waters and water courses &wkey;>44 — Riparian .owners cannot use water for irrigation so as to interfere with reasonable domestic needs of lower owners.
    Upper riparian owners cannot lawfully use the waters of a flowing stream for irrigation when such use materially interferes with the supply required to meet the reasonable domestic needs of lower riparian owners, including water for stock.
    2. Waters and water courses <&wkey;46 — Riparian owner cannot take water for operation of railroad to detriment of lower proprietors.
    A riparian proprietor cannot rightfully take water for the operation of a railroad in such quantities as to materially reduce the volume of a stream to the detriment of the lower riparian proprietors.
    3. Limitation of actions <®=»I83(3) — Answer held to sufficiently plead limitations against suit to enjoin diversion of water.
    In a suit to establish plaintiff’s rights in the waters of a stream and enjoin diversion, an answer alleging that defendants and their predecessors in title had the adverse, peaceable, and continuous use of the waters for irrigation of certain lands by means of dams and ditches for more than 10 years, and, in the ease of one defendant, for its locomotives by means of pumping plants and tanks for more than 30 years, it sufficiently presented the defense of limitation of 4 years where no special exceptions were urged.
    4. Limitation of actions &wkey;>l 99(1) — Whether action to enjoin diversion of water was barred held a question for the jury.
    Where, in a suit to establish plaintiff’s rights in the waters of a stream and enjoin diversion, there was evidence that defendants and their predecessors in title had remained in the adverse, peaceable, uninterrupted, notorious, and exclusive use of the water for irrigation and the operation of railroad locomotives for more than 10 years, there was a question for the jury whether the action was barred by the limitation of 4 years.
    5. Limitation of actions <5&wkey;39 (8) — Limitation of 4 years applies to suit to quiet title to water; “action for the recovery of land.”
    A suit to quiet the right of riparian proprietors to the water of a stream and to enjoin diversion is not an “action for the recovery of land,” and is within Rev. St. 1911, art. 5690, providing a limitation of 4 years for actions other than for the recovery .of real estate for which no limitation is otherwise prescribed.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Action for the Recovery of Real Estate.]
    6. Limitation of actions <&wkey;>55(7) — Action to enjoin diversion of water accrues when water diverted to Lower owner's substantial injury.
    The right of action in favor of riparian owners to quiet their riparian rights and prevent wrongful interference by upper proprietors accrues when the upper proprietors divert water to such an extent as to deprive the lower proprietors of water for domestic use to their substantial injury.
    7. Waters and water courses <&wkey;I44 — Right to use waters to detriment of lower owner may be acquired by prescription.
    An upper riparian proprietor may, by prescription for 10 years, acquire the right to use the waters of a running stream in a special way and in excess of the right arising from ownership of his land to the injury and detriment of lower riparian proprietors.
    8. Waters and water courses &wkey;> 138 — Constructive notice will support claim of prescriptive right to divert water.
    Though prescription does not begin to run in favor of a riparian owner diverting water to the detriment of lower owner until the party against whom the prescriptive right is claimed has notice, constructive notice has the same effect as actual notice.
    9. Waters and water courses <&wkey;l52(5) — Answers pleading prescriptive right to water held merely subject to special exception.
    In a suit to.establish the rights of riparian owners in the waters of a stream and enjoin diversion, an answer alleging defendant’s adverse, peaceable, and continuous use of the water for irrigation by means of dams and ditches for more than 10 years, and, as to one defendant, for its locomotives by means of pumping plants and tanks for more than 30 years, if defective as a plea of prescription, was merely subject to special exceptions, and was not so defective as to authorize a peremptory instruction for plaintiffs.
    10. Wafers and water courses &wkey;>!37 — Use of water whenever needed supports prescriptive right.
    The use of water from a stream whenever the user needs it from time to time will support a prescriptive right to divert the water, and the continuity of the use is not broken because of the omission to use the water when not needed by the user.
    11. Waters and water courses &wkey;>l52(5)— Parties claiming prescriptive right not required to show absence of disability of lower proprietors.
    Parties claiming a right by prescription to divert waters from a stream were not required in order to make a prima facie ease to plead or prove that the parties against whom the right was claimed and those under whom they claimed were free from disabilities throughout the prescriptive period, as the law presumes a grant, and such presumption involves a grantor sui juris.
    12. Waters and water courses <&wkey;I56(5)~ Grantee held connected with grantor’s claim of right to divert water, though not ripened into prescriptive right.
    Heeds to land, together with all rights and appurtenances thereto, connected the grantee with the grantor’s claim of right to divert water from a stream, though the right was inchoate and had not ripened into a prescriptive right
    
      13. Waters and water courses <&wkey;l28 — Prescriptive right to divert water not precluded by statute.
    The act of 1895 relative to the diversion of waters from streams does not preclude the acquisition of prescriptive rights in view of the express authorization of diversion by the consent of the owners, as the presumed grant necessarily includes consent. '
    14. Limitation of actions &wkey;>3(2) — Statute not repealed as to suit to enjoin diversion of waters.
    The act of 1895 relative to the diversion of water from streams does not repeal the-statute of limitations of four years as applied to suits involving the rights of private riparian owners.
    Error to Court of Civil Appeals of Fourth Supreme Judicial District. ,
    
    Suit by J. K. Burr and others against T. J. Martin and others. A judgment for plaintiffs was affirmed by the Court of Civil Appeals (171 S. W. 1044), and defendants bring error.
    Reversed and remanded.
    Baker, Botts, Parker & Garwood, of Houston, and Jones & Thurmond, of Del Rio, for plaintiffs in error.
    W. B. Teagarden, of San Antonio, and Boggess & Smith, of Del Rio, for plaintiff in error Galveston, H. & S. A. Ry. Co.
    T. J. Murray and McFarland & Lewright, all of San Antonio, for defendants in error.
   GREENWOOD, J.

The parties to this suit are the owners of lands adjacent to Las Mor-as creek, which is a running stream in Kinney and Maverick counties. Defendants in error are the two lowest riparian owners.. Plaintiffs in error are upper riparian owners.

The suit was instituted by defendants in error against plaintiffs in error. Its purpose was to establish the rights of defendants in error to running water in the creek on their lands, for domestic use, including the watering of live stock, and to enjoin plaintiffs in error from interfering with such right by the application of the water to irrigation and to railroad operation. The defendants in error obtained a judgment in the trial court substantially granting them the relief they sought, based on a verdict in obedience to a peremptory instruction, which was affirmed on appeal. 171 S. W. 1044.

It is the.law of this state that upper riparian owners cannot lawfully use the waters of a flowing stream for irrigation, when such use materially interferes with the supply required to meet the reasonable domestic needs of lower riparian owners, including water for stock. Baker v. Brown, 55 Tex. 380; Watkins Land Co. v. Clements, 98 Tex. 585, 86 S. W. 733, 70 L. R. A. 964, 107 Am. St. Rep. 653. The decisions are uniform in holding that a riparian proprietor cannot rightfully take water in the operation of a railroad in such quantities as to materially reduce the volume of a stream to the detriment of lower riparian proprietors. Harris v. N. & W. Ry. Co., 153 N. C. 542, 69 S. E. 623, 31 L. R. A. (N. S.) 543, and note, 138 Am. St. Rep. 686. We approve these decisions as correct in principle.

The application of the stated rules of law to the facts plead and proven entitled defendants in error to the peremptory charge in their favor, unless their action was barred by limitation, or unless plaintiffs in error had acquired, by prescription, rights in and to the use of the water superior to the rights of defendants in error.

For answer to the causes of action of defendants in error it was averred by plaintiffs in error^ except the Galveston, Harrisburg & San Antonio Railway Company, that they and their predecessors in title had had .the adverse, peaceable, and continuous use of the water of Las Moras creek for irrigation of certain lands, by means of dams and ditches, for more than 10 years before the filing of this suit; and said plaintiffs in error prayed judgment in reconvention establishing their paramount right to the use of the water not only for domestic, but for irrigation, purposes. For answer to the petition of defendants in error, the Galveston, Harrisburg & San Antonio Railway Company pleaded an adverse, peaceable, and continuous use of the water from Las Moras creek, for its locomotives, by means of pumping plants and tanks, throughout more than 30 years; and the railway company sought judgment establishing its paramount right to the use of the water in the operation of its railroad. There was evidence that plaintiffs in error, or that plaintiffs in error and their predecessors in title, had remained in the adverse, peaceable, uninterrupted, actual, open, notorious, and exclusive use and enjoyment of the water of Las Moras creek, for. irrigation of the lands described and for the operation of, the railway company’s locomotives, during more than 10 years before this suit was brought.

Defendants in error contend that the action of the trial court in refusing to submit to the jury the defense of either limitation or prescription ought to be sustained, for the following reasons:

(1) Because it was not made to appear that plaintiffs in error or their predecessors had any continuous, adverse use of the water, no continuous invasion of the rights of defendants in error or of those under whom they claim being shown, and no knowledge or notice, actual or constructive, to defendants in error and those under whom they claim of the alleged hostile use of the water by plaintiffs in error or their predecessors being proven.

(2) Because plaintiffs in error did not plead ñor prove that the owners of the riparian lands, which now belong to defendants in error, were free from legal disabilities at the inception of or during the period relied -on for the acquisition of prescriptive rights.

(3) Because certain of the plaintiffs in error were not in privity with their predecessors in title with respect to any prescriptive claim, by reason of the fact that no prescriptive right had ripened when those plaintiffs in error purchased, and they took no express conveyance of any inchoate right founded on an incomplete prescriptive use of the water, and they had not themselves used the water for as long as 10 years.

(4) Because since the act of 1895 no right could be acquired in the unappropriated waters of any natural stream save by compliance with the provisions of the act.

We think the facts averred by plaintiffs in error, in answer to the defendants in error’s petition, presented the -defense of limitation of 4 years, notwithstanding deficiencies rendering the pleading of that defense subject to special exceptions, which were not urged. We also think that plaintiffs in error were entitled to have the jury determine whether defendants in error’s action was barred by the 4-year statute of limitations.

The conclusion last stated involves the determination that article 5690 of the Revised Statutes applies to defendants in error’s suit. The article provides that “every action other than for the recovery of real estate, for which no limitation is otherwise prescribed, shall be brought within four years next after the right to bring the same shall have accrued, and not afterward.” Since “no limitation is otherwise prescribed,” the article is bound to apply if this is an “action other than for the recovery of real estate.”

This court has repeatedly defined an action for the recovery of land. Speaking through Justice Wheeler, the court said in Miller v. Rusk, 17 Tex. 171:

“The ‘recovery of land’ manifestly has reference to the possession.”

The same year it was said in Hearst v. Kuykendall, 16 Tex. 329, by Chief Justice Hemphill:

“An action for the recovery of lands has a well-known and definite signification, and means an action of ejectment, trespass to try title, or a suit to recover the land itself.”

Those declarations have been repeatedly cited 'with approval. Thompson v. Locke, 66 Tex. 386, 1 S. W. 112; McCampbell v. Durst, 15 Tex. Civ. App. 522, 40 S. W. 319.

Thompson v. Locke, supra, decided that, a suit to quiet the title to real estate was not an action for the “recovery of land.”

This suit is one to quiet the right of the two lowest riparian proprietors to the use of the flowing water of Las Moras creek -for domestic purposes, and .to enjoin interference therewith, and therefore could not be considered as one “for the recovery of real estate,” though .the assented riparian right should be regarded as part and parcel of the land itself.

There is good reason for the view that this suit is one to quiet title to an incorporeal hereditament. Cooley’s Blackstone (3d Ed.) vol. 1, p. 331; 1 Kinney on Irrigation and Water Rights, §§ 454, 455. It has been pointed out in an opinion of Chief Justice Stayton that actions of the kind included in Chief Justice Hemphill’s definition in Hearst v. Kuykendall do not lie for an incorporeal thing. Benavides v. Hunt, Trustee, 79 Tex. 390, 15 S. W. 396. Referring to various English statutes, it was said in Lehigh Valley-Railroad Co. v. McFarlan, 43 N. J. Law, 605, 617:

“These statutes applied only to actions for the recovery of land; none of them embraced actions in which the right to an incorporeal hereditament was involved.”

It is significant that none of the articles in chapter 1 of title 87 of the Revised Statutes, entitled “Limitation of Actions for Land,” have application to defendants in error’s suit. Full title, precluding all claims, cannot be acquired under the 3, 5, or 10 year statutes, without “peaceable and adverse possession.” Such rights as defendants in error assert and seek to protect cannot be made the subject of “actual and visible appropriation” by a hostile claimant, which is essential to “adverse possession.” Articles 5672, 5674, 5675, 5679, 5681, R. S.

The right of defendants in error, or of those under whom they claim, to maintain a suit to quiet their riparian rights, and to prevent wrongful interference therewith, accrued whenever upper riparian proprietors diverted water, for irrigation or for locomotives, to such an extent as to deprive defendants in error or those under whom they claim of water for domestic use, to their substantial injury. Until defendants in error or those under whom they claim suffered substantial injury, no right of action in their favor accrued. The action became barred 4 years after the accrual of the right to bring same.

Whether the pleadings and evidence raised the defense of the bar of defendants in error’s suit by limitation is a distinct question from whether the 'court ought to have submitted to the jury the ease which plaintiffs in error sought to affirmatively make against defendants in error, based on alleged paramount rights to the use of the water of Las Moras creek, acquired by prescription.

It is not an open question in Texas that an upper riparian proprietor may, by prescription, acquire the right to use the water of a running stream, in a special way and in excess of the right arising from ownership of his land, to the injury and detriment of lower riparian proprietors. And the time to perfect such a right by prescription is 10 years. Haas v. Choussard, 17 Tex. 690; Rhodes v. Whitehead, 27 Tex. 312, 315, 84 Am. Dec. 631; Baker v. Brown, 55 Tex. 381; Irrigation Co. v. Vivian, 74 Tex. 174, 11 S. W. 1078; Cape v. Thompson, 21 Tex. Civ. App. 689, 53 S. W. 368; Santa Rosa Irr. Co. v. Pecos River Irr. Co., 92 S. W. 1016.

We do not agree with the view that there was no evidence to take to the jury the question of such adverse or continuous use of the water as is requisite to establish a right by prescription.

While prescription does not begin to run until the party against whom the prescriptive right is claimed has notice, and'no actual notice to the lower riparian Owners of the claim of paramount right by plaintiffs in error or those under whom they claim was shown, yet there was evidence of circumstances from which notice might have been reasonably presumed; and constructive notice has the same effect as actual notice. Gould on Waters, § 337.

We cannot hold that the evidence furnished no basis for the determination of the extent of the use of the water, throughout 10 years for irrigation or for locomotives. If the pleadings with respect to prescription were defective for lack of greater certainty, the defects rendered same merely subject to special exceptions. There were no such defects in pleading the prescriptive rights relied on by plaintiffs in error as authorized the peremptory instruction.

We think the rule as to continuity in the use of water which is laid down by Mr. Kinney is consonant with sound reason. He says:

“The adverse user only during the season when the water is needed constitutes a sufficient continuous user of either the water or the easement used in connection therewith, as the omission to use the water when it is not needed by the claimant does not break the continuity of the user as far as acquiring a right by prescription is concerned. Water for irrigation, for example, is not needed at all seasons of the year; and, again, it may not be needed every day of the irrigation season. In general, it may be said that the right to its use may be acquired adversely, as it may be acquired by appropriation by periods of time. If, whenever the claimant needs the water from time to time, he makes use of it, whether the use be every day, or once every week, or twice a month, of whenever his needs require it, this is a continuous use.” 2 Kinney ’on Irrigation and Water Rights, § 1052, p.-1890.

The rule is laid down by Greenleaf as follows:

“So proof of the exercise of the right whenever the party had occasion to do so, as, for example, the right to take clay to make bricks, is sufficient, without showing that it was in fact exercised at all times of the year, though it is so alleged in the plea.” 2 Greenleaf on Evidence (16th Ed.) § 544, p. 511.

It was not incumbent on plaintiffs in error, in order to make out a prima facie cause of action entitling them to a decree adjudging the superiority of their right to the use of the water, to the extent enjoyed during the full period of prescription, to plead or prove that defendants in error and those under whom they claim were free from disabilities at the commencement of, or throughout, the prescriptive period.

The law authorizes the presumption of a grant from the enjoyment of an incorporeal right which affects the lands of others where such enjoyment has been, for the whole prescriptive period, adverse, peaceable, and continuous, with actual or constructive notice to the persons whose rights are invaded. The ■presumption of a grant, to divest one of a right and to invest it in another, involves a grantor sui juris.

The Supreme Court of New Hampshire said in Wallace v. Fletcher, 30 N. H. 452:

“In cases where the party claiming title under such presumption may find it necessary to rely upon the presumption of a deed, we think that long-continued user is evidence of a lost or nonexisting grant from some person who might at some time have made a valid grant to some person capable of accepting it.”

Of like tenor was the declaration of the Supreme Court of the United States per Justice Field in Fletcher v. Fuller, 120 U. S. 545, 7 Sup. Ct. 673, 30 L. Ed. 759:

“When, therefore, possession and use are long-continued, they create a presumption or lawful origin; that is, that they are founded upon such instruments and proceedings as in law would pass the right to the possession and use of the property.”

The prescriptive period was fixed by analogy to our statutes of limitation, and the analogy should continue with respect to pleading and proof of disabilities on the part of owners to be affected. We may be sure that this rule puts the burden of proof on those who will ordinarily have least difficulty in adducing the facts.

The conclusion in City of Austin v. Hall, 93 Tex. 596, 57 S. W. 563, that a plaintiff should prove that those from whom he claimed to have derived a prescriptive right were free of disability was based explicitly on the statement that the right was claimed against one other than the defendant in the suit or some person under whom he claimed. To prevent that opinion from being construed ro announce the principle contended for in behalf of defendants in error, Judge Brown was careful to say that the court did “not intend to decide what would be the rule if a prescriptive right were claimed as against the defendant in the suit or some person whose title he asserts.”

In our opinion, plaintiffs in error connected themselves with any prescriptive claims of their predecessors in title by means of tlie deeds to their lands. It is not denied that the deeds would have passed matured prescriptive rights appurtenant to the lands, any more than it would he denied that the inchoate title or claim of an adverse possessor, without lawful right, would pass by his deed to the land possessed. It seems manifest that it could not be the intent of the grantor and grantee that the grantor’s deed to land together with all rights and appurtenances thereto should not pass that which the grantor claimed as an appurtenant right to the land. Here, too, we conclude that the analogy to the statutes of limitations should be followed.

The contention that the act of 1895 precluded the acquisition of prescriptive rights to land by upper as against lower riparian proprietors seems sufficiently refuted by the act’s express authorization of the diversion of running water “to the prejudice of the rights of the riparian owner” by his consent. The presumed grants underlying prescriptive rights necessarily include consent.

The act did not repeal the statute of limitation of four years or the law of prescription in suits involving the rights of private riparian owners.

The peremptory charge against plaintiffs in error ought not to have been given. The judgments of the Court of Civil Appeals and of the District Court are reversed, and the cause is remanded for a new trial in the district court. 
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