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Eighteenth- and Nineteenth-Century Water Law
The history of the state's water regulation began with the Spanish settlers in Texas. Spanish water law
required specific authorization to use surface water. The Spanish (and later Mexican) type of water law evolved into the "prior appropriation" doctrine and is not related to the ownership of
land. Under the appropriation doctrine, surface water "rights" are separate and apart from the rights of land ownership, much like oil and mineral rights are today.* However, in the 1800s Anglo-American settlers in Texas introduced English common law to govern the use of water. This water law establishes the right-of-use based on ownership of land. The owner of land adjacent to a river had the right to fish that river or divert water for irrigation, or otherwise make use of it. These property-based water rights are legally referred to as "riparian" rights, after a Latin word that means pertaining to the bank or shore of a river or lake. Groundwater was likewise attached to the property above it; landowners were free to pump whatever they could from wells dug on their property.
With the Texas Irrigation Act of 1889, all streams "within the arid areas of the state" not already claimed by
a landowner were declared the property of the state and therefore subject to state regulation. In essence, Texas formally adopted the principle of "prior appropriation." The foundation of the
prior appropriation doctrine is the recognition and protection of senior claims to water use, or "first in time, first in right." The second principle is that water shall be put to a
"beneficial" use such as agriculture, hydroelectric generation, municipal and industrial uses, and recreation.* Under this system, those wishing to divert water from a streambed could be granted a right to a similar amount in the future provided the water was used in a fashion the state deemed reasonable and beneficial.*
In 1913, and again in 1917, the legislature extended the state's jurisdiction to regulate surface water use
through amendments to the 1889 act. By 1917 the state had jurisdiction over all surface water. However, the courts upheld water rights claimed by individuals for property they owned prior to
the 1889 and 1913 laws, leaving the state with two sometimes overlapping systems for allocating surface water rights.*
The flaw inherent in such a dual system, the appropriation and riparian doctrines, became apparent in the 1950s
when a severe drought in the Lower Rio Grande Valley drastically reduced the volume of water in the Rio Grande. As a result of the drought, the amount of water appropriated under surface
water rights exceeded the river's supply.
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