Opinion
No. C-6553.
April 20, 1988. Rehearing Denied April 20, 1988.
Appeal from the District Court, No. 267, Victoria County, Clarence N. Stevenson, J.
James A. Kilgore, John T. Mitchell and W.D. Masterson, Kilgore Kilgore, Dallas, for petitioners.
Jim Mattox, Atty. Gen., D. Paul Elliott, Asst. Atty. Gen., Austin, for respondents.
OPINION ON MOTION FOR REHEARING ON APPLICATION FOR WRIT OF ERRORIn this case, we originally denied application for writ of error, no reversible error. We now overrule the Motion for Rehearing on Application for Writ of Error, with the following observations from a majority of the court.
The case involves the adjudication of water rights in Green Lake, a body of water in Calhoun County formed in part by Guadalupe River overflow. The Texas Water Commission originally determined that "Green Lake is a natural fresh water lake and all water contained in the lake is subject to public ownership" pursuant to the Texas Water Rights Adjudication Act, Tex. Water Code §§ 11.301-11.341 (emphasis added). The trial court upheld the Commission's finding. The court of appeals affirmed the decision of the trial court, 730 S.W.2d 64, holding that the waters of Green Lake were public waters "whether classified as a 'lake' or as 'the storm water, floodwater, and rainwater of [a] . . . depression."
We agree that Green Lake is a "lake", and thus public water under Tex. Water Code §§ 11.021. We express no approval, however, of the language of the court of appeals holding that surface waters or the "storm water, floodwater, and rainwater of [a] . . . depression" may be public waters when they do not form part of a watercourse. We further express no approval of the court of appeals' holding that appropriation by the State of surface water on land granted after 1921 is constitutional.
Section 11.021 provides:
The water of the ordinary flow, underflow, and tides of every flowing river, natural stream, and lake and of every bay or arm of the Gulf of Mexico, and the storm water, floodwater, and rainwater of every river, natural stream, canyon, ravine, depression, and watershed in the State is the property of the State.
The Motion for Rehearing on Application for Writ of Error is overruled.