Title: Bartley v. Sone - Court of Civil Appeals of Texas, San Antonio, Oct. 30, 1974, Rehearing Denied Feb. 5, 1975, Second Rehearing Denied Oct. 1, 1975
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 Material Information
Title: Bartley v. Sone - Court of Civil Appeals of Texas, San Antonio, Oct. 30, 1974, Rehearing Denied Feb. 5, 1975, Second Rehearing Denied Oct. 1, 1975
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Language: English
Publisher: 527 South Western Reporter, 2d Series
 Subjects
Spatial Coverage: North America -- United States of America -- Florida
 Notes
Abstract: Jake Varn Collection - Bartley v. Sone - Court of Civil Appeals of Texas, San Antonio, Oct. 30, 1974, Rehearing Denied Feb. 5, 1975, Second Rehearing Denied Oct. 1, 1975 (JDV Box 86)
General Note: Box 22, Folder 3 ( Court Cases of Water Rights in States Other Than Florida - 1990 ), Item 29
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Full Text


527 SOUTH WESTERN REPORTER, 2d SERIES


Sarah E. BARTLEY et al., Appellants,
v.
Robert A. SONE, Appellee.
No. 15296.
Court of Civil Appeals of Texas,
San Antonio.
Oct. 30, 1974.

Rehearing Denied Feb. 5, 1975.

Second Rehearing Denied Oct 1, 1975.


In an action involving the right to use
water emanating from a spring and flowing
in a ditch, the 38th District Court, Real
County, Ross E. Doughty, J., declared cer-
tain rights and awarded injunctive relief to
the plaintiff. Defendants appealed. The
Court of Civil Appeals, Cadena, J., held that
judgment of the trial court could be upheld
on the theory that plaintiff owned all of the
water in the ditch because such water came
from a spring or springs located wholly on
the plaintiff's land. In absence of evidence
to the contrary, it was to be presumed as a
matter of law that the springs were of such
character that plaintiff had the right to use
their waters for any purpose.
Portions of judgment granting injunc-
tive relief deleted; as reformed, judgment
affirmed.


1. Water and Water Courses 0152(8)
Finding that plaintiff filed yearly
water report was not unsupported by evi-
dence where plaintiff testified that he had
filed such reports every year, though only
report filed for year 1955 was introduced
into evidence.

2. Appeal and Error =->846(5)
Where no element of particular ground
of recovery was found by trial court, such
ground was to be deemed waived. Rules of
Civil Procedure, rule 299.


3. Waters and Water Courses =140
As between appropriators of water,
first in time is first in right.

4. Waters and Water Courses s=140, 143
Under doctrine of relation back, claim
of water rights, perfected by filing of affi-
davit, being first in time, was superior to
right acquired by other claimant, but only
right obtained by filing the affidavit was to
such quantity of water as was reasonably
sufficient and necessary to irrigate the land
susceptible of irrigation on either side of
the ditch. Gen.Laws 1889, c. 88.

5. Waters and Water Courses *=143
Fact that, during dry years, need of
prior appropriator demands use of all water
of ditch does not give such appropriator
right to use all of water at all times; his
right remains right to such amount of
water as is reasonably necessary to irrigate
the land susceptible of irrigation on either
side of the ditch. Gen.Laws 1889, c. 88.

6. Waters and Water Courses =128, 142
1913 statutory provisions relating to
filing of certified copies of prior water ap-
propriation affidavits were intended to es-
tablish central filing agency, Board of
Water Engineers, where all records relating
to appropriations of water could be kept,
and filing of certified copies of prior affida-
vits was not intended to increase rights
acquired by the prior filing with county
clerks. Gen.Laws 1913, c. 171; c. 171, 98.

7. Waters and Water Courses =101
Where all water in ditch came from
spring or springs located wholly on plain-
tiff's land, he owned all of the water in the
ditch.

8. Waters and Water Courses =101
Owner of land owns water under the
surface, generally referred to by hydrolo-
gists as "ground water," and referred to by
legislature as "underground water" insofar
as including water percolating below sur-
face but not including defined subterranean


754 Tex.






BARTLEY v. SONE
Cite as 527 S.W.2d 754


streams or underflow of rivers. V.T.C.A.,
Water Code 52.001(3), 52.002.
See publication Words and Phrases
for other judicial constructions and
definitions.

9. Waters and Water Courses *=101
Statutes defining underground water
and recognizing ownership and right of
owner of land in underground water are
embodiment of well-settled rules relating to
ownership of percolating water. V.T.C.A.,
Water Code 52.001(3), 52.002.

10. Waters and Water Courses
<=42, 100,101
Rules that owner of land owns also all
ordinary springs and waters arising there-
from and that owner owns underground
water do not apply to water flowing in
subterranean stream or to overflow of riv-
ers, nor to springs which form source of
flowing stream or which add perceptibly to
flow of water in a stream. V.T.C.A., Water
Code 52.001(3), 52.002.

11. Waters and Water Courses e=107(3)
In absence of evidence that flow of
springs had its source in subterranean
stream or was of sufficient magnitude of be
of any value to riparian proprietors or was
source of, or added perceptibly to flow of, a
stream, it would be presumed that spring
was of such character that plaintiff as own-
er of the land on which the spring was
situated had right to use the waters for any
purpose, either on riparian or nonriparian
land, and that springs were the exclusive
property of such landowner, who had all
rights incident to them that one might have
as to any other species of property. Gen.
Laws 1913, c. 171, 98; V.T.C.A., Water
Code 52.001(3), 52.002.

12. Waters and Water Courses 0=107(3)
Presumption that, in absence of evi-
dence to contrary, springs on plaintiff's
land were of such character that plaintiff
had right to use their waters for any pur-
pose was true presumption, being rule of
law compelling trier of fact to draw certain


conclusions from given fact or group of
facts in absence of evidence rebutting such
conclusion. V.T.C.A., Water Code 52.-
001(3), 52.002.
13. Trial <=388(4)
Findings upon facts which are estab-
lished as matter of law are not required.


Morriss, Boatwright, Lewis & Davis, San
Antonio, C. H. Gilmer, Rocksprings, for ap-
pellants.
Thurman Lee Mulhollan, Corpus Christi,
Robert A. Sone, Leakey, for appellee.

CADENA, Justice.
This case involves the right to use water
emanating from a spring and flowing in a
ditch which will be referred to in this opin-
ion as the "Waddle Ditch."
Plaintiff, Robert E. Sone, is the owner of
the west '/4 of Survey 22, Block 3, Cert. %s,
T. W. G. N. Ry., in Real County. At the
time the case went to trial, the east %/ of
Survey 22 was owned by defendants, Sarah
E. Bartley, Marvin Conner, and Betty Perry
and husband, Jim Perry. Another defend-
ant, M. L. Hocker, was in possession, as
tenant, of the east s/ of the survey. After
testimony had terminated, but before judg-
ment was rendered, Howard E. Davis, Jr.,
and wife, Sarah Margaret Davis, purchased
the interests of Bartley, Conner and the
Perrys in the east 1/4 of the survey and were
permitted to intervene as defendants.
Defendants appeal from a judgment de-
claring that plaintiff had the unlimited and
unrestricted right to use the water flowing
in the Waddle Ditch "for any purpose he
may desire" and limiting the defendants to
the right to use only such water as may be
available "at the end of the" Waddle Ditch
after the "unrestricted and unlimited use"
of such water by plaintiff. The judgment
also awarded plaintiff injunctive relief, but
a description of that portion of the judg-
ment is unnecessary, since we agree with
defendants' points 21-25, unchallenged by


Tex. 755


I -






527 SOUTH WESTERN REPORTER, 2d SERIES


plaintiff, that the evidence does not war-
rant injunctive relief.
The west % of Survey 22 will be referred
to in this opinion as the "Sone property,"
while the east % of the survey, owned by
defendants, will be designated as the "Bart-
ley property." At times, in the testimony,
the exhibits and the briefs, Survey 22 is
referred to as "Section 22," but, whichever
term is used, the reference is to the land
involved in this litigation.
Several springs are located on the Sone
property. Prior to May 11, 1894, the water
from these springs flowed in a general
southerly direction across the Sone property
and into Bull Head Creek, a tributary of
the Nueces River, at a point on the Sone
property. At no time did any of the water
from the springs flow onto or across any
portion of the Bartley property. One of
these springs is the source of the water
which flows in the Waddle Ditch. (Find-
ings of Fact 19, 20 and 21).
On September 1, 1894, Phil Waddle, one
of plaintiff's predecessors in title, executed
an affidavit of appropriation of the water
from the springs. (Findings of Fact 4 and
13). Although this affidavit was filed with
the county clerk, the record does not dis-
close the date of such filing. (Finding of
Fact No. 5).
It is undisputed that on May 11, 1894,
Phil Waddle commenced construction of
three irrigation ditches for the purpose of
capturing the water emanating from the
springs and transporting it for use on other
portions of the Sone property. The Sep-
tember 1, 1894, Waddle affidavit recited the
completion of these three ditches and de-
scribed their location. One of these ditches
is the one referred to in this opinion as the
Waddle Ditch. This ditch ran in a general
easterly direction from its point of origin at
the spring, across the Sone property, and
terminated at the eastern boundary of such
property, which is also the western bound-
ary of the Bartley property. (Findings of
Fact 16, 17, and 24).


'On May 12, 1894, one day after com-
mencement of construction of the Waddle
Ditch, J. E. T. Burris, one of defendants'
predecessors in title (Finding of Fact No.
14), began construction of an irrigation
ditch which will be designated in this opin-
ion as the "Burris Ditch." This ditch con-
nected with the Waddle Ditch at the point
where the latter ditch terminated on the
eastern boundary of the Sone property and
the western boundary of the Bartley prop-
erty. (Finding of Fact No. 24). On No-
vember 30, 1894, Burris filed his affidavit
of appropriation with the County Clerk.
(Finding of Fact No. 11). This affidavit
contained the following language: "Said
ditch is supplied by water from the Waddle
Ditch and this descrip-
tion is made to obtain the right to said
waters next after Mr. P. Waddle." (Find-
ing of Fact No. 12).
The Waddle and Burris affidavits of 1894
were filed in compliance with the provisions
of Tex.Gen.Laws 1889, ch. 88, p. 100, the
statute then in force. Under this statute, a
person who had constructed works for the
appropriation of water subject to appropria-
tion was directed to file an affidavit with
the County Clerk containing details of the
ditch or canal. Under the provisions of 8
of this statute, upon the filing of the affida-
vit the rights of the appropriator "related
back" to the date of commencement of con-
struction of the ditch or canal. Under this
provision, Waddle's rights had their incep-
tion on May 11, 1894, the date he com-
menced construction of the Waddle Ditch,
while the rights of Burris came into being
on May 12, 1894, the date of commencement
of construction of the Burris Ditch.
In 1913 the legislature created the Board
of Water Engineers and made significant
changes in the statutory law concerning the
appropriation of public waters. Tex.Gen.
Laws 1913, ch. 171, p. 358. Among other
things, the 1913 statute directed that, with-
in one year after the effective date of the
statute, appropriators of water file with the
Board of Water Engineers certified copies
of the sworn statements of appropriation


, ~bs


756 Tex.







BARTLEY
Cite as 527
previously filed with the county clerk under
prior statutes. In 1915 the period for filing
of such certified copies was extended until
.March 31, 1916. The filing of the certified
copy of a prior affidavit of appropriation is
generally referred to as a "certified filing,"
or, simply "CF."
Prior to March 16, 1916, Waddle conveyed
the Sone property to I. I. Hutcherson, while
Burris conveyed the Bartley property to T.
R. Moore. Both Hutcherson and Moore
filed with the Board of Water Engineers
certified copies of the affidavits of appro-
priation filed with the county clerk in 1894
by Waddle, in the case of Hutcherson, and
by Burris, in the case of Moore. The file
marks on these instruments reflect that
they were both filed at 2:00 P.M. on March
16, 1916. The Moore certified filing ap-
pears on page 302 of Book 5 of the water
appropriation records of the Board of
Water Engineers and bears the file number
S84, while the Hutcherson certified filing
appears on page 384 of Book 5 and bears
the number 885.
CF 885 filed by plaintiff's predecessor in
title, Hutcherson, is accompanied by Hutch-
erson's affidavit which recites: (1) At the
time Waddle filed his affidavit of appropri-
ation in 1894, the Waddle Ditch had been
completed and was in actual use. (2) From
1894 to the date of filing of CF 885, "all the
water that has been needed has been used,
which has take [sic] the total capacity of the
ditch, except in very wet years when not
quite all has been used." (3) The water was
used to irrigate "about (25) twenty-five
acres of land out of the W. 1/2 N. E. /4 of
Section 22, said land being
owned by me due course of transfer from
SPhil Waddell [sic]." (Emphasis added. The
Description of the land being irrigated as
being located in the "N. E. 4" of the survey
does not describe any land ever owned by
plaintiff or his predecessors in title, includ-
ing Waddle and Hutcherson. The N. E. /4
of the survey has, at all times relevant to
this controversy, been owned by defendants
and their predecessors in title. However, as
required by the 1913 statute, CF 885 in-


v. SONE Tex. 757
S.W.2d 754
eludes the 1894 Waddle affidavit of appro-
priation which correctly describes the Wad-
dle Ditch as being located wholly on the
Sone property, and the statement in CF 885
that the land being irrigated by Hutcherson
was owned by Hutcherson "by due course
of transfer" from Phil Waddle necessarily
refers to the Sone property, which is the
property transferred by Waddle to Hutch-
erson prior to the filing of CF 885.)
CF 884 filed by Moore, defendants' prede-
cessor in title, after describing the Burris
Ditch, declares: (1) The water from the
Burris Ditch which was used for irrigation
purposes, was the "surplas [sic] water that
is not used by I. I. Hutcherson, who owns
the upper end of said ditch." (It is clear
that the words "the upper end of said
ditch" which CF 884 describes as being
owned by Hutcherson, refers to the Waddle
Ditch, and not to the "upper end" of the
Burris Ditch.) (2) Since 1894 the water
flowing in the Burris Ditch consisted of "all
the water that has come down said ditch as
surplas [sic], not used by I. I. Hutcherson."
(3) The water was used to irrigate "about
131/2 acres" of the Bartley property.
Plaintiff's predecessors in title filed with
the Board of Water Engineers reports con-
cerning the use of water from the Waddle
Ditch on the Sone property in 1919, 1949,
1950, 1951, 1952, 1953 and 1954. The trial
court's finding of fact No. 8 states that one
of plaintiff's predecessors in title filed a
report for the year 1929, but we agree with
defendants' contention, embodied in the
point of error No. 9, that there is no evi-
dence to support this finding. This error,
however, is harmless. In any event, we
attach no significance to these reports, since
they are of no assistance in determining the
amount of water used on the Sone property
during the years covered by the reports.
[1] Plaintiff acquired title to, and went
into possession of, the Sone property in
1955, since which time, according to the
ninth finding of fact, he has filed yearly
water reports. Defendants contend that
there is no evidence to support this finding,


La






527 SOUTH WESTERN REPORTER, 2d SERIES


but since plaintiff testified that he had filed
such reports every year, defendants' tenth
point of error is without merit. However,
only the report filed by plaintiff for 1955,
the year he went into possession, was intro-
duced in evidence. This report recites: (1)
Plaintiff had no means of measuring the
water used, but he had not used all the
water from the spring. (2) Since plaintiff
had not taken possession until May, 1955, he
had used hardly any water, but he was
preparing the land for cultivation. (3) The
water in the Waddle Ditch ran onto the
property of "another" who "uses the excess
by permission only."
Defendants and their predecessors in title
filed water reports for the years 1919, 1926,
1927, 1929 and 1953-1960. The 1919 report,
filed by Moore, states that the water used
by him was "wast [sic] water" from the
Waddle Ditch, and added that the water
available to him was insufficient since, be-
cause of drought, Hutcherson used "nearly
all" the water. The 1926 report reflects the
use of 141,200 cubic feet of water to irri-
gate 13 acres, while the 1927 report states
that 12,800 cubic feet were used on 13 acres.
It is impossible to determine from the 1929
report whether the amount of water used
on the Bartley property was 175,040 cubic
feet or 175,040 cubic feet.
The reports filed for the years 1953-1960
make no attempt to estimate the amount of
water used during those years. The num-
ber of acres being irrigated, according to
these reports, varied from eight acres in
1958 to 35 acres in 1959 and 1960. The 1958
report recites that there was "plenty of
water" and that the Bartley property was
irrigated "all the time. except when there
was sufficient rainfall." The 1960 report
declares that the Burris Ditch "runs all the
time."
In addition to the findings of fact identi-
fied by number in the preceding portions of
this opinion, the trial court found that dur-
ing the existence of the Waddle Ditch plain-
tiff and his predecessors in title had used
the water in such ditch "as they saw fit"
(finding No. 26); from time to time the


persons owning or in possession of the Bart-
ley property had gone upon the Sone prop.
erty for the purpose of cleaning and repair.
ing the Waddle Ditch, but, except during
the period beginning on May 5, 1965, and
June 10, 1965, the date on which plaintiff
filed this suit, such entry and work "was
done with the permission of the then own.
ers of" the Sone property (finding No. 2T);
when, during the May 5, 1965-June 10, 195
period, Bartley and his tenant attempted to
exercise control of the Waddle Ditch, plain-
tiff, Sone, "informed them that they had no
legal right to clean or repair" such ditch
(finding No. 29. There is no finding num.
bered 28); the water in the Burris Ditch
has been the only water available for irrig~.
tion and domestic purposes on the Bartley
property (finding No. 30); and at times
plaintiff and his predecessors in title "had
used all the water in the Waddle Ditch.
leaving no water for the Burris Ditch"
(finding No. 31).
We agree that, as contended by defend-
ants, there is no evidence to support the
finding (No. 26) that, "during the entire
existence of the Waddle Ditch," plaintiff
and his predecessors in title had used the
water in that ditch "as they saw fit," and
that there is no evidence to support the
finding (No. 31) that plaintiff and his
predecessors in title had, at times, "used al
the water in the Waddle Ditch, leaving no
water for the Burris Ditch."
Plaintiff's claim of ownership of all the
water flowing in the Waddle Ditch is based
on (1) excavation and capture of percolating
waters and bringing them to the surface:
(2) the Waddle affidavit of appropriation*
filed in 1894 and the certified filing (CF
885) by Hutcherson in 1916; ownership of
the water emanating from the springs by
reason of the fact that the springs ar
located on plaintiff's land.
Defendants rely on the Burris affida&t
of appropriation filed in 1894 and the cer'.
fied filing by Moore (CF 884) in 1916.
[2] The record does not support plai
tiff's claim of ownership of the water o


'~ -'


758 Tex.






BARTLEY v. SONE
Cite as 527 S.W.2d 754


., theory that he acquired title to it as a
..ult of excavation and capture of perco-
.,ting waters by bringing them to the sur-
:C'C. In any event, the trial court made no
findings of fact relating to this theory and
,iaintiff made no request for additional
findings. Since no element of this ground
f recovery was found by the trial court, we
-ust consider this ground of recovery as
waived. Tex.R.Civ.P. 299; 4 McDonald,
Texas Civil Practice 16.09, p. 25 (1971).
Nor can the trial court's conclusion that
viaintiff is entitled to use all of the water
:n the Waddle Ditch be supported on the
jasis of compliance with applicable statutes.
[3-5] It has always been the law in Tex-
t that as between appropriators of water,
the first in time is the first in right.
Hutchins, Texas Law of Water Rights 228
1961). Because of the doctrine of relation
hack, the claim of Waddle, perfected by his
fling of the 1894 affidavit, was first in
:ine, and, therefore, the Waddle claim is
superiorr to the rights acquired by Burris.
However, under the express provisions of
i he 1889 statute, Waddle, by filing the affi-
davit, obtained only the prior right "to such
1 quantity of the water only as is reasonably
Sufficient and necessary to irrigate the land
Susceptible of irrigation on either side of
ditch or canal." Tex.Gen.Laws 1889, ch. 88,
p. 100, 4. There is nothing in the record
to indicate that the amount of water rea-
sonably sufficient and necessary to irrigate
:he Sone property was equal to the entire
output of the spring. Even if we should
1 ~sume that at times the entire flow from
the spring was reasonably necessary for the
Proper irrigation of the Sone property, the
reord does not indicate the volume of flow
'rom the spring during those years. It may
be true that during drought years the prior
'ppropriator has the right to use all the
i ater if the use of such amount is reason-
ably necessary, even if his exercise of such
Sght completely deprives subsequent appro-
Priators of water. But the fact that, dur-
g dry years, the need of the prior appro-
Priator demands the use of all the water
does not give such appropriator the right to


use all of the water at all times. His right
remains the right to use such amount of
water as is reasonably necessary. This is
the only right acquired by Waddle under
the 1889 statute.

[6] We find no basis for holding that
the filing of CF 885 by Hutcherson in 1916
in any way enlarged'or increased the right
which was acquired by Waddle in 1894 and
which passed to Hutcherson when he ac-
quired the Sone property from Waddle. It
is, we think, clear that the provisions in the
1913 statute relating to the filing of certi-
fied copies of prior appropriation affidavits
were intended to establish a central filing
agency, the Board of Water Engineers,
where all records relating to appropriations
of water could be kept. The filing of the
certified copies of prior affidavits of appro-
priation was not intended to increase the
rights acquired by the prior filings with
county clerks. The legislature, in 98 of
the 1913 legislation, expressly disavowed
any intention "to alter, affect, impair, in-
crease, destroy, validate or invalidate any
existing or vested right "
Therefore, assuming that the water flow-
ing from the spring was water which was
subject to appropriation by compliance with
applicable appropriation statutes, neither
Waddle nor his successors in title acquired
the right to use all of the water flowing
from the spring as they saw fit. The judg-
ment of the trial court, then, cannot rest on
the Waddle affidavit of 1894 and the 1916
filing of a certified copy of such affidavit
by Hutcherson.

[7] However, the judgment of the trial
court can be upheld on the theory that
plaintiff owns all of the water in the Wad-
dle Ditch because such water comes from a
spring or springs located wholly on plain-
tiff's land.

[8,9] The owner of land "owns also all
ordinary springs and waters arising there-
on." Toyaho Creek Irrigation Co. v. Hutch-
ins, 21 Tex.Civ.App. 274, 52 S.W. 101, 105


Tex. 759






527 SOUTH WESTERN REPORTER, 2d SERIES


(Fort Worth 1899, writ ref'd). This rule
relating to ownership of water flowing
from springs stems from the rule that the
owner of land owns the water under the
surface, generally referred to by hydrolo-
gists as "ground water." Our statutory law
recognizes this principle, although the legis-
lature uses the term "underground water,"
rather than "ground water." Our statutes
define "underground water" as "water per-
colating below the surface of the earth and
that is suitable for agricultural gardening,
domestic or stock raising purposes, but does
not include defined subterranean streams or
the underflow of rivers." Tex.Water Code
Ann. 52.001(3) (1972). The Water Code
expressly recognizes "the ownership and
rights of the owner of the land
in underground water ." Tex.
Water Code Ann. 52.002 (1972). These
statutory provisions are but the embodi-
ment of well settled rules relating to the
ownership of percolating waters. Houston
& T. C. Ry. v. East, 98 Tex. 146,81 S.W. 279
(1904); Anno.: 55 A.L.R. 1385, 1390-95
(1928).
[10, 11] The rules referred to in the two
preceding paragraphs are not applicable to
water flowing in a subterranean stream or
to the overflow of rivers. Nor are such
rules applicable to springs which form the
source of a flowing stream or which add
perceptibly to the flow of water in a
stream. However, in the absence of evi-
dence that the flow of the spring in ques-
tion had its source in a subterranean
stream, or was of sufficient magnitude to
be of any value to riparian proprietors, or
was the source of, or added perceptibly to
the flow of, a stream, it will be presumed
that the spring was of such character that
plaintiff "had the right to
the use of their waters for any purpose,
either on riparian or non-riparian land."
Texas Co. v. Burkett, 117 Tex. 16, 296 S.W.
273, 278 (1927). That is, it must be conclud-
ed that the springs "were the exclusive
property of" plaintiff, "who had all the
rights incident to them that one might have
as to any other species of property." Id.


Defendants argue that the trial court
made no findings concerning the nature of
the springs- and the source of the water
flowing from such springs, and that there-
fore plaintiff, who failed to request that the
trial court make additional findings, waived
his right to recover on this theory. We
disagree.

[12] Plaintiff specifically pleaded that
the springs were located wholly on his land,
and the trial court expressly so found. Un-
der the doctrine applied in Burkett, in the
absence of evidence to the contrary, it must
be presumed that the springs were of such
character that plaintiff had the right to use
their waters for any purpose. If the exist-
ence of fact "A" gives rise to a presumption
of fact "B", then, when the existence of
"A" is established, the law requires that the
existence of "B" be assumed in the absence
of evidence which would support a finding
of the non-existence of "B." Johnson's
Adm'r v. Timmons, 50 Tex. 521 (1878);
Model Code of Evidence rule 104.1 (1942).
It is clear that the doctrine applied in Burk-
ett gives rise to a true presumption, which
is a rule of law which compels the trier of
fact to draw a certain conclusion from a
given fact or group of facts in the absence
of evidence rebutting such conclusion. 9
Wigmore, Evidence 2491, at 289 (3d ed.
1940); Keeton, Statutory Presumptions-
Their Constitutionality and Legal Effect, 10
Tex.L.Rev. 34 (1932); Chafee, the Progress
of the Law, 1919-1921: Evidence, 35 Harv.
L.Rev. 302 (1922).

[13] If the existence of "A" requires
and compels a finding of the existence of
"B" in the absence of evidence to the con-
trary, it is clear that, in the absence of such
rebutting evidence, the existence of "B" is
established as a matter of law. Findings
upon facts which are established as a mat-
ter of law are not required. Smith v.
Brown Express, 343 S.W.2d 550 (Tex.Civ.
App.-San Antonio 1961, writ ref'd n. r. e.);
Burmley v. Neeley, 207 S.W.2d 931 (Tex.
Civ.App.-Amarillo 1947, writ ref'd n. r. e.).


760 Tex.






URANGA v
Cite as 527
Plaintiff's claim to exclusive ownership of
the water because the springs are located
wholly on his land is established without
resort to the doctrine of implied findings.
Defendants present several points based
on alleged defects in CF 885, filed by
Hutcherson in 1916. These contentions are
without merit, in view of our conclusion
that plaintiff was the exclusive owner of
the water flowing from the springs and
that his rights do not depend on compliance
with the statutes concerning appropriation.
The judgment of the trial court is re-
formed by deleting from such judgment all
portions granting plaintiff's prayer for in-
junctive relief. As so reformed, the judg-
ment of the trial court is affirmed. Plain-
tiff (appellee) shall pay 1/ of the costs of
this appeal. The remaining 4/s of such costs
are assessed against defendants (appel-
lants).


EKEY NUMBER SYSTEM
T


Genevieve DeLeon URANGA, Appellant,
v.
C. V. URANGA, Appellee.
No. 15327.
Court of Civil Appeals of Texas,
San Antonio.
Feb. 12, 1975.
Rehearing Denied Oct. 1, 1975.


Husband filed petition seeking divorce.
The 63rd District Court, Maverick County,
eorge M. Thurmond, J., entered judgment
of divorce and divided property, and wife
:Ppealed from property disposition portions
Sf the judgment. The Court of Civil Ap-
i als, Cadena, J., held that since wife's
readingss disclosed existence of separate
?perty trial court did not err in permit-


SURANGA Tex. 761
.W.2d 761
ting proof concerning alleged separate na-
ture of property awarded husband, on
ground there were no pleadings to support
introduction of such evidence, that amounts
husband received during marriage in form
of salary, dividends and rents were to be
classified as community property, that mon-
ey borrowed marriage is assumed to be
community property and that trial court
erred in evaluating the extent of the com-
munity estate.
Affirmed in part and reversed and re-
manded in part.


1. Divorce *<=203
Where husband's petition for divorce
alleged that there was no community estate
other than personal effects and, in her an-
swer, wife alleged that the parties owned
separate and community property, wife's
pleadings were adequate to support intro-
duction of evidence as to character and
nature of the property; hence, trial court
did not err in permitting proof concerning
alleged separate nature of property award-
ed husband. V.T.C.A., Family Code 3.63.

2. Divorce Doctrine of trial by implied consent of
an issue not raised by the pleadings was
applicable in divorce action so as to bar
complaint of wife, who failed to object to
introduction of evidence offered by husband
in support of his claim of separate right in
property at issue, that trial court erred in
permitting proof concerning alleged sepa-
rate nature of property awarded husband.
V.T.C.A., Family Code 3.63; Rules of
Civil Procedure, rules 45, 46, 67.

3. Divorce *=286(1)
Since divorced wife contended that evi-
dence was insufficient to support finding
that all assets on hand at time of dissolu-
tion of marriage, except money in bank,
comprised the separate estate of the hus-
band, the Court of Civil Appeals was re-
quired to consider the sufficiency of all the
evidence to support the finding.




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