Full opinion text
DOOLEY, District Judge. This suit primarily is a contest over the rights to the waters of the Rio Grande River in the vicinity of El Paso,, Texas, but along with that are a cluster of satellite controversies. The frame of the principal dispute is that the plaintiffs, El Paso County Water Improvement District No. 1, a political subdivision of Texas, together with some individuals owning land in said district, and the United States of America, contend that the waters in question have been committed to the needs and uses of a federal reclamation development, lying partly in New Mexico and partly in Texas along the river, including the territory of plaintiff district, and known as “The Rio Grande Project”, under senior appropriations made by the government in the Territory of New Mexico, and a senior appropriation in Texas assigned to the government, but the defendant City claims that it has a priority of some measure in such water as a riparian land owner, and also by appropriation rights under a permit issued by the Board of Water Engineers of Texas, as well as other ways. The ramification of details will be supplied later, as the opinion moves from one part to another of the law suit. Rio Grande Waters The Rio Grande is not only a river of song and story,, but also a symbol of the Spanish heritage in what is noty the American Southwest. It is the sec-: ond longest river in the United States and is the only river of this country having long segments first wholly within this nation and next forming an internatonal boundary. The physical aspects of the river, as it stretches through hundreds of miles of arid territory, make an environment quite unlike the rivers of humid climes and verdant lands such as England or the eastern seaboard of this country, where the doctrine of riparian water rights is dominant. The full strength common law riparian rule in a nutshell is, “the river runs, let it run on and on”. The Rio Grande was not made for such a riparian law world. It has never been dependably navigable in fact on any general scale within the span of history, except to a limited extent in the lower reaches of the river. Obviously, by the order of nature, it was destined for use in irrigation of the valleys along its banks and it has been such a life line for hundreds of years. The Indians first and the Spaniards next began such use of the river. The acequias of the Spaniards go back to the 17th century. The community of Ysleta, a few miles south of El Paso, is among the oldest settlements of the kind. The riparian rights principle has never been recognized in New Mexico and has been strictly modified in Texas, but appropriative water rights are in the law of both States. The clash between the two kinds of water rights and property, particularly in the western half of the United States, is familiar history, but more of such comparative water law later. The Reclamation Act was approved June 17, 1902, and in 1905 Congress authorized the Rio Grande Proj'ect. In 1906 the government, acting by a Supervising Engineer of the Reclamation Service in the Department of the Interi- or, in conformity with a statute óf the Territory of New Mexico, filed a writ-' ten claim to appropriate 730,000 acre-feet per year from the unappropriated waters of the Rio Grande at the later site of the Elephant Butte Dam, to serve the Rio Grande Project; and in 1908 similar notice of claim was filed by the government, but this time to take all of the unappropriated waters of the Rio Grande and its tributaries, for the same use above specified, in conformity with a later statute of the Territory of New Mexico. In 1880 some desultory correspondence in diplomatic channels began between the United States and Mexico over mutual grievances about the diversion and use of Rio Grande waters in the vicinity of El Paso, Texas, and Juarez, Mexico, and was renewed in 1894, growing more persistent all the time, until it was finally resolved by a Treaty, or Convention, between the United States and Mexico, of May 21, 1906. The planning of the Rio Grande Project, and the settlement of differences with Mexico went hand in hand. The integration of the Project and the Convention is manifest from the first two articles of the Treaty. The Congress appropriated funds for the construction of the Elephant Butte Dam, as the main unit, or facility, of the Project, in 1907, and thereafter the work progressed from stage to stage, taking a number of years, until completed. The total costs have been over $20,000,000. The Legislature of Texas in 1913 enacted a comprehensive act regulating the water resources of Texas and providing for an administrative Board of Water Engineers. This statute made it necessary for holders of old water right appropriations under earlier laws to file a certificate thereof, as well as certain specified information, with the newly created Board of Water Engineers. In 1914, the United States, by its Project Manager of the Rio Grande Project, made such certified filing in compliance with said law in respect to the declaration of water appropriation filed by Loomis and others in 1889, and later acquired by the United States, (as again mentioned hereafter) but a reservation of all rights was inserted in said certified filing. The United States, as owner of the physical works and facilities of the water storage and irrigation system built and being built to serve the Rio Grande Project, and the El Paso County Water Improvement District No. 1, thereunto duly authorized, signed a contract dated January 17, 1920, covering improvements and irrigation service for District lands as a component part of said Project and, by the terms thereof, the said District became obligated to pay the United States a maximum of nearly $5,-000,000 in reimbursement for its proper part of the construction costs for the works, facilities and irrigation system to be used in carrying on the functions of the Project, and previously a somewhat similar contract, dated January 7, 1918, had been executed between the United States and the Elephant Butte Irrigation District of New Mexico, and lands within that District were thereby made the other component part of said Project. A few months after the first contract mentioned, the said El Paso County Water Improvement District No. 1 was enlarged by consolidation with another district and thereafter the additional lands, coming from said consolidation, were also brought into said Project by agreement with the United States. On March 18, 1938, the states of Colorado, New Mexico and Texas, by their duly appointed Commissioners, “desiring to remove all causes of present and future controversy among these states and between citizens of one of these states and citizens of another state with respect to the use of the waters of the Rio Grande above Fort Quitman, Texas,” ex-' ecuted a compact, signed by said Commissioners respectively, and also signed for approval by the duly appointed representative of the United States. The compact was ratified by Colorado February 21,' 1939, by New Mexico March 1, 1939, and by Texas March 1, 1939, and was approved by the United States May 31, 1939. Article I of the Compact enumerates several definitions and the ones presently most material are quoted in the margin. Article II designates stream gauging stations. Article III defines the obligation of Colorado to deliver water at the Colorado-New Mexico state line. Article IV defines the obligation of New Mexico to deliver water into the Elephant Butte Reservoir at San Marcial, New Mexico, (which is some 125 miles above the point where the river leaves New Mexico and becomes the International Boundary between the United States and Mexico.) Article VIII has material bearing and is set out in the margin. Articles IX, X, XI, XII, XIII, XVI and XVIII are immaterial in this controversy, but the remaining two Articles, Articles XIV and XV, are pertinent and will be found in the foot note. An application -by the City of El-Paso; dated September 23, 1948, was filed with the Board of Water Engineers of Texas on November 1, 1948, for a permit to appropriate, store and divert 27,000 acre-feet of water per annum “of the unappropriated storm and flood waters of the State of Texas, and the unused return flow water of the Rio Grande Project of the Bureau of Reclamation of the Department of the Interior, for municipal and domestic use, from the Rio Grande in El Paso County, Texas.” It was proposed to impound 16,000 acre-feet per annum in a storage reservoir and to take the remaining 11,000 acre-feet per annum by direct diversion of return and flood waters without the use of storage. The City’s plan, as outlined in said application, definitely relied upon making use of the American Dam, (located only about 100 feet upstream in the Rio Grande from the intersection of the International Boundary Line between the United States and Mexico with the river) and the American Irrigation Canal and the Franklin Canal, all property of the United States, although the City at that time had no authority or agreement from the United States to so use such government facilities for carriage of any water under its requested appropriation permit to the City water plant. (The City, later in a contract dated August 10, 1949, between it and the plaintiff District, approved by the United States, did stipulate for such use of the government’s works and facilities, subject to certain conditions, but the City now assails the validity of that contract.) The United States, joined by the El Paso County Water Improvement District No. 1, as protestants, filed opposition to said application for a water permit and the grounds, after being detailed fully, were summarized in such protest. The Fort Quitman Land Company, the owner of farming lands on the south of the Hudspeth County Conservation and Reclamation District No. 1, and also several owners of lands in the last mentioned district, also filed their protests against the City’s application. The interest of said District, adverse to the City, resulted from a contract, dated December 1, 1924, between the United States and the District, executed under the authority of the Warren Act of February 21, 1911, wherein the Government agreed to deliver to the District at the terminus of the Tornillo Main Canal in the Rio Grande Project, each irrigation season, “such water from the Project as may be available at said terminus without the use of storage from Elephant Butte Reservoir”, for use in irrigation, in other words, the left-over water from the Project. The City and the various protestants finally made an ostensible settlement of their contest precipitated by the application of the City for a water permit, and the key to such settlement was the aforesaid contract executed in the meantime on August 10, 1949, (to be fully noticed later) as shown by copy attached to a separate stipulation, signed by the parties under date of December 1, 1949, and filed with the Board of Water Engineers. In said stipulation the protestants withdrew their opposition to the City’s application, but this action was qualified by an express reservation and condition. On May 10, 1950, The Board of Water Engineers of Texas granted the City’s application by a permit order, without making any mention therein, however, of the settlement between the parties, which was reflected in the signed stipulation then on file with the Board. On the other hand, the previously mentioned contract of August 10, 1949, was the only possible antecedent to justify the directions in said Permit for the use of works and facilities belonging to the United States in the service of the City. Enough of the Permit for an understanding thereof is herein quoted. The national government, in cooperation with the Republic of Mexico, has undertaken and completed an immense program of rectification to shorten the channel of the Rio Grande by many miles between El Paso and Fort Quitman. The State of Texas ceded to the United States all of its right, title and interest in the bed and banks of the Rio Grande in El Paso County and Hudspeth County, which were within the range of said rectification work. Later, the United States also has carried out canalization of the river, between Caballo Reservoir and the American Dam, under the authority of Congress. The rectification was not but the canalization is an irrigation adjunct. Several miles of El Paso river front lies between their termini at the edge of Cordova Island and at the American Dam a few miles above El Paso. These works, one up and one down river from the City, do not seem truly material to the present litigation. This brings the discussion to the grounds in support of the conflicting claims herein to the waters of the Rio Grande.. The plaintiffs’ main contention, in brief, is that the constituent land owners in the Rio Grande Project territory, pursuant to the water ’ appropriations made by the United States in New Mexico and the Loomis appropriation in Texas, (a later subject herein), have acquired a vested right to the water in question, superior to any claims made by the defendant City, and, moreover, that the State of Texas by legislation has subordinated its laws governing water rights to the irrigation program of the Project. In contrast the defendant City takes the position that Rio Grande water entering Texas, even though same is being handled by the United States for the Project, becomes subject to the laws of Texas and that under such law the defendant, as a municipality, has a superi- or appropriation right to such water for domestic and municipal requirements. Riparian rights are also claimed. The plaintiffs rely heavily on the language in the Reclamation Act that Project water “shall be appurtenant to the land irrigated”, but that provision must be construed consistently with another section of the Reclamation Act, upholding the force of State laws. This respect for the state laws was no casual policy, as the same pattern is found in the Federal Power Act, and again in the Ferris Public Lands Bill, H. R. No. 408, 64th Congress, First Session, and again somewhat similarly in the Warren Act, and the Flood Control Act of 1944. Such consistent purpose to avoid disturbance of state authority makes it very doubtful that the fact water rights in a reclamation project become “appurtenant to the land irrigated”, renders such water rights immune to state law, which, without attempting to nullify such water rights, simply declare same inferior and subject to the priority of higher uses of the water fixed by the state law. The water right under the Reclamation Act is in the nature of property and, broadly, is a vested right, although it just as well fits other terms, since, after all, the statute declares that “beneficial use shall be the basis, the measure, and the limit of the right”. In other words, such water right, unlike a fee simple title, is not a fixed and absolute estate, but, instead, is a defeasible interest, which never comes to rest, but is always at the risk of loss by unjustifiable delay in making or continuing beneficial use thereof. These water rights, however, denominated, in any event are subject to the restraints in the Reclamation Act, and it is beyond reach to reconcile their finality as asserted by the plaintiffs with the integrity of the state law. The proposition has been settled in litigation of state against state in the Supreme Court, to determine their relative rights in the waters of an interstate river, that the upstream state has no right to appropriate all of the water and let the downstream state go empty-handed. If, in this instance, the appropriation filed years ago by the United States in the Territory of New Mexico should render that part of the water taken thereunder, which finds its way into Texas, untouchable by the policy of water rights and appropriations under the law of Texas, then, indeed, New Mexico has practically .captured all of the waters of the Rio Grande upstream and excluded Texas front, exercising any free control over same in, its own way, and that cannot be justified in law, unless it has been done by the sovereign consent of Texas. This must be so if there is any tangible reality in the provision leaving the state laws intact under the terms of the Reclamation Act and any thought that such proviso was an empty gesture-has been rejected several times by the Supreme Court. The Federal Court, Southern District of California, where prolonged litigation, with some factual similarity to this suit, is pending, has rendered an opinion much in point. The plaintiffs’ counsel move to somewhat 'stronger ground in saying that Texas has consented to the priority of water use for irrigation in the Rio Grande Project, as certain statutes of Texas do point in that direction, but still are not explicit enough to settle the question. The plaintiff District has contracted an obligation and indebtedness to the United States of the kind described in the last mentioned statutory article, and presumably the continuance of irrigation therein at the usual level is necessary for the orderly self-liquidation of the enterprise, so that any inroads in the name of a higher priority under the Texas law, which substantially depletes the water :for irrigation in said District, might well hinder or disrupt the entire project. The plaintiffs’ position is not impaired by two statutory articles of Texas, one of which is strongly relied on by deféndant, (certainly not if the second of such articles is constitutional), and same are quoted in the margin. The defendant’s , counsel strenuously argue that said Article 7472a is unconstitutional. In the first place, constitutional guaranties, ordinarily, at least, are not designed to protect one arm of the state from the body of the state, but are to protect individual and corporate citizens against the state, or arms of the state. This principle is recognized not only by the Supreme Court of the United States, but also in Texas, as well as other states, and is stated in the standard texts. Laying that consideration aside, it is not evident at all that the statute reflects any arbitrary discrimination, or repugnant classification. It has been in the statute books now for twenty-four years. Of course, at this late date it would be difficult to reliably reconstruct the reasons which prompted its enactment, but a number of things, tending to bring the statute within the permissible discretion of the law-making body can be pointed out. The Rio Grande is the only international stream bordering on Texas, and since that brings into play interests and relations between nations, much of the control over the river and its waters must, necessarily, be left in the hands of the United States. The Republic of Mexico, as well as the United States, has interests at stake. The Rio Grande has been the subject of Conventions and Treaties between these nations. It is seen in this lawsuit that a portion of the waters of the river, in the upper part of its boundary segment, have been allocated to Mexico and the United States is pledged to make delivery thereof at a point opposite the defendant City. The International Boundary Commission of the United States and Mexico is entrusted with a measure of continuing supervision and cooperation in questions and plans pertaining to the Rio Grande. In short, Texas does not and' cannot have a free hand with this particular river. The welfare of the people living in the valleys along the Texas side of the Rio Grande may be more closely tied to an agricultural economy dependent so wholly on irrigation than along any other river of Texas. This is enough to suggest, not so much that the statute was well advised, but that, at least, it is not irrational. The article in question is held constitutional. The strongest bulwark of the plaintiffs’ suit, in the present respect, is the Rio Grande Compact between Colorado, New Mexico and Texas. The relevant articles have already been quoted in a preceding footnote. This Compact has- a number of peculiar provisions. For example, the water New Mexico must pass to Texas is delivered not where the two States meet, but at San Marcial, New Mexico, more than 100 miles above the point where the Rio Grande leaves New Mexico. This delivery is made into the reservoir of the Elephant Butte Dam, the principal structure of the Rio Grande Project. Some of this water eventually goes to Mexico. The Compact, instead of leaving the Texas share of the water open for disposition under the general water statutes of Texas, plainly directs same for irrigation in the Project. A large part of the Project lands are in New Mexico and, consequently, this water delivered to Texas goes to irrigate not only Texas lands, but also New Mexico lands in the Project. The apparent reason for all this is that when the Com-' pact was negotiated, the Rio Grande Project, in all of its far flung works and physical properties was, and for some time had been, superimposed on the-Rio. Grande and its adjoining valleys all the way from the Elephant Butte Reservoir in New Mexico, to a point below Fabens in Texas and that fait accompli colored, the whole Compact as between New Mex-, ico and Texas. Perhaps the problem was handled in the only practicable way. In any event, an analysis of the Compact shows convincingly that the water belonging to Texas is definitely committed to the service of the Rio Grande Project. This Compact is binding on Texas and the defendant City and, for that matter, is binding on the inhabitants and citizens of Texas. The Territory of New Mexico put in force the water appropriations made under its laws years ago for the intended use of the incipient Rio Grande Project, which, from the standpoint of New Mexico, meant more particularly what later became the Elephant Butte Irrigation District, and, naturally, New Mexico had no intention in the Compact that the water delivered at San Marcial should, in any event, all go downstream to Texas, with the result of leaving said local District waterless. Just as plainly, the United States never supposed that its physical works and facilities were to be put in service to handle that part of the water destined for Texas, only to have the Project lands deprived of it in favor of other uses under the law of Texas, thus, perhaps, imperiling the repayment program between the Project and the United States. The defendant City insists, regardless of what else may be said, that it has a high statutory use for the waters of the river and is entitled to the first claim on same under still another article of the Statutes of Texas. The defendant argues that this contention is sound whether or not Article 7472a, mentioned above, is constitutional. Articles 7471, 7472 and 7472a are all derived from the same legislative Act and that helps in the proper construction thereof. The plan of the whole Act seems to make it reasonably clear that Article 7471 simply regulates priorities prospectively in the subsequent issuance of appropriation permits, so that in acting on pending applications from time to time or in holding foresighted reserves preference will be governed by this statutory guide, but said article does not manifest any intention to upset the normal time priority of then or thereafter outstanding permits once duly issued. This distinction is made clear .in Article 7472,. which states that “the first in time is the first in right”, but further provides as the only exception that appropriations of water “hereafter made” for any of the other statutory purposes “shall be granted subject to the right of any city, town or municipality of this State to make further appropriations of said water thereafter without the necessity of condemnation or paying therefor, for domestic and municipal purposes as defined” in Article 7471. The defendant City, however, is in the class of municipalities denied the exceptional authority aforesaid by force of Article 7472a. In other words, the position of the defendant is not strengthened in this suit by. the terms of Article 7471. The defendant City presented record proof that acequias, an ancient thing along the Rio Grande, were still used in El Paso under town or city management to provide water for domestic and irrigation uses as late as near the turn of the century. On the other hand, it is also undisputed that the defendant City discontinued the, use of river water for domestic and municipal purposes during all the time between dates in 1918 and 1943. The said acequias which served El Paso years ago brought water from the Rio Grande, but that hardly sustains any prescriptive or other present day right to the waters of the river. The acequia system of water supply, in its origins, evidently was appropriation in its simplest form. The river water was at hand, there was no hindrance, it was a necessity, and the early settlers simply helped themselves to satisfy common wants, just as they took the clay for making adobe. The question of whether any riparian aspect entered in during the years of the last century, when the acequias were still used in El Paso, is not definitely developed in the record. The record does show, however, that the original plat of the town of El Paso, made in 1858, located the townsite a half mile or more back from the river, but acequias are drawn in leading from the river into and across the townsite, and that spatial setting is, at least, consistent with the observation already made that the ancient acequias in the valley of the Rio Grande were works for a water use more akin to the appropriation practice than to riparian rights. Be that as it may, said acequia history, so far as is seen, does not aid the defendant City. The above discussion of the different claims of the defendant City comes to the conclusion that all of the appropriative water rights advanced by the City are either without reality or else must yield to the paramount disposition made by the Rio Grande Compact. The question whether there still might be some possible contingencies when the City would be entitled to appropriate waters of the Rio Grande will be reached at another place. This declaration contracts the common law description of riparian waters. The quantitative measure of riparian waters, however, is not so important at this time as the limits to the uses of water by a riparian. The statement in Texas usually includes domestic, livestock and reasonable irrigation as proper riparian uses, and those are the more familiar uses, but that is not literally an exclusive enumeration. The question here is whether a large city, owning some riparian land, can bring a municipal water supply within the riparian rights fold. The other point, with present bearing, made by the City, is that of riparian rights. The two questions to settle at the outset are (1) what are riparían lands and (2) what are riparian waters. The Court in Richter v. Granite Mfg. Co., 107 Tex. 58, 174 S.W. 284, 286, L.R.A.1916A, 504, quotes from a text book, as follows: “ ‘All riparian rights depend upon the ownership of land which is contiguous to, and touches upon, the water; * * *. They do not attach to any lands, however near, which do not extend to the water; * * * >» In Motl v. Boyd, 116 Tex. 82, 286 S.W. 458, 468, the Court says: “We are of the opinion that riparian waters are the waters of the ordinary flow and underflow of the stream, and that the waters of the stream, when they rise above the line of highest ordinary flow, are to be regarded as flood waters or waters to which riparian rights do not attach. * * * ‘The line of highest ordinary flow’ is the highest line of flow which the stream reaches and maintains for a sufficient length of time to become characteristic when its waters are in their ordinary, normal, and usual condition, uninfluenced by recent rainfall or surface run-off.” The defendant City, in its proprietary capacity, owns a few hundred acres of land riparian to the river, and the princiPal tract thereof is being used as a drilling site, where a number of water wells produce a part of the water supply for domestic and municipal purposes in El Paso. Another of its riparian tracts is a tract used as the site of a water treating plant. A Texas court has held that the city in that suit, a riparian owner, was entitled under the special circumstances, to take water it had impounded and supply it to the people of the city, in preference to use by riparian owners for irrigation, but the city had acquired its tracts from certain riparian owners, who knew the specific purpose of the city was to impound a municipal water supply, as reflected by the deed, and a later contract about their correlative water rights had been made between the city and one of the defendants together with predecessors in title of the other defendants, and against that background the court held the City’s right superior to that of the defendants. That decision, however sound in the light of the peculiar facts, might well be compared with a later case. Neither of the two eases just mentioned reflect any broad rule on the subject which would be controlling in this suit. The general rule is that the riparian rights of a city, owning land along a river, are no different from the rights of an individual owner, and cannot be expanded to justify the use of such rights as a nucleus for supplying and selling water in great quantities to the general public in said municipality, including mainly residents of non-riparian lands The law of riparian rights is allied peculiarly with the interests of natural persons as owners of riparian lands, a particular advantage to those owning land with water frontage and the requirement that such lands must hug the stream well serves to stabilize the valuable benefits. A dominant distinction between riparian rights and appropriation rights is the principle of equality among riparians in contrast to the principle of time priority among appropriators. One of the tabulations in evidence shows that, over the last nine years, the City’s take of river water has mounted. The average annual take for the three years beginning with 1946 averaged a little over 6,000 acre-feet. The average annual take for the next three years, beginning with 1949, was about 7,500 acre-feet. For the final three years, beginning with 1952 (the last 4 months of 1954 being estimated), the take averaged over 9,000 acre-feet. Of course, in that time the City had made long strides in growth. That' amount of water equals only a small percentage of the total quantity going to the territory of the Rio Grande Project, but in most relations would be regarded as a large volume, and particularly in the ordinary riparian relationship. Such a' withdrawal prima facie would seem to be out of focus with the principle of riparian equality. Many times the amount of riparian land owned by the City is owned by divers and sundry other proprietors in Texas along the river within the Rio Grande Project. This makes it manifest that the problem raised by the City is inseparably linked with the Project, if indeed the claim can have any footing in the face of the Rio Grande Compact. The bearing of the Compact on either the appropriation or the riparian rights claimed by the City raises a federal question, and has been decided herein with respect to the first of such rights, but need not be determined with respect to the second thereof. Another important distinction between riparian rights and appropriation rights is that the riparian’s use measure of water is elusive and shrouded in the word “reasonable”, more unknown' than foreknown, while the appropriator’s use measure of water is predetermined, at least the maximum. The City's riparian claim might, for the moment, be regarded as sound theoretically, but at once there would come the baffling puzzle of evaluation and fitting it into the mosaic of the El Paso Valley. The present record, at least, seems unequal to such an intricate task. The only possible out in sight would have to be immersed in generalities, instead of being charted by any definite formula. That point is not reached, however, since the great weight of authority agrees that the pattern of riparian rights was never cut to fit the public water requirements of a large municipality. Franklin Canal. In July 1889, one Loomis and five others acting under an “Act to Encourage Irrigation”, enacted in 1889, the first such general statute of Texas, executed a written declaration appropriating out of the unappropriated waters of the Rio Grande a quantity equal to 333 cubic feet per second, which would be diverted through a projected canal 40 feet wide and 3 feet deép; named the “El Paso Irrigation Canal”, to be laid out from a head gate on the river, through the town of El Paso along Eighth Street and thence southeasterly with the general course of the river to Fabens, and the recited purpose was to carry such water “for irrigation and domestic use, and for mining, milling and stock raising”, by all persons entitled thereto along the line of said canal. The El Paso Irrigation Company, assignee of Loomis and associates, was granted a franchise and right of way 50 feet in width under an ordinance of the City of El Paso, eifective July 6, 1889, for a term of 50 years, to construct and maintain the aforesaid canal for irrigation purposes through said city, subject to prescribed rates, and any discrimination against customers in the city was prohibited. In 1912, the United States, acting under the Reclamation Act, of the United States, by mesne conveyance, and for a consideration of $120,000, acquired the canal aforesaid, which in the meantime had become named the “Franklin Canal”, together with rights of way, easements, irrigation facilities and structures, and other appurtenant interests and property. In 1905 Congress extended the Reclamation Act to include that part of Texas-known as “The'El Paso Valley” along the Rio Grande, and at the same time authorized the construction of the Elephant Butte Dam on the Rio Grande in New Mexico, to get under way with the Rio Grande Project. Of course, the development took many years. The said canal and appurtenances were acquired, as aforesaid, in the progress of that project. In 1913, the City of El Paso amended the franchise ordinance of 1889 by naming the United States of America as the assignee and successor of the El Paso Irrigation Company, and reducing the width of the right of way on Eighth Street (which is 70 feet wide as platted) from 50 feet to 25 feet and regulatory provisions, appropriate to the original ordinance in its nature as a franchise, were deleted. The City Council of El Paso on November 9, 1939, passed and approved an ordinance entitled as follows: “An ordinance amending an ordinance entitled: ‘An ordinance conveying unto the United States of America all the right, title and interest of the City of El Paso in and to the right of way occupied by the Franklin Canal from, along, and across the streets, alleys and other public lands of the City of El Paso, with certain reservations and providing for a reverter when the said right of way is no longer used for canal purposes, and declaring an emergency’, by inserting therein the clause ‘contingent, however, upon appropriations being made therefor by Congress’, and declaring an emergency.” A quitclaim deed dated November 9, 1939, was executed by the City of El Paso to the United States of America pursuant to the aforesaid ordinance and The Reclamation Law of the United States. The defendant City now contends that said ordinance and quitclaim deed are both null and void, on the grounds that same were ultra vires, whether tested by its charter, the statutes or the constitution, without consideration and outside the purview of Article 5244a of the Revised Civil Statutes of Texas, Vernon’s Ann.Civ:St. This charter forms a special law of March 2, 1889, entitled “An Act to Incorporate the City of El Paso”, enacted by the Legislature of Texas. The City’s defense of ultra vires turns on the question whether it was without any power to do the act attempted by the ordinance and quitclaim deed in question. The material parts of the pertinent sections in the charter are noted below as a footnote. The charter provisions just noticed amply show that the defendant City had the essential powers to do what was done in this disputed transaction, subject to the condition that same is supported by a proper consideration. This comes to the element of consideration. The defendant City throughout its growth and particularly in the most rapid stage thereof, during the last twenty years, has drawn much support from its tributary agricultural economy, and that, in turn, has come to full development under the program of the Rio Grande Project. This factor is expressly recognized in the very words of the subject ordinance. This was a legitimate inducement to the defendant City in keeping with the decision evidenced by said ordinance and within the spirit of the terms of its charter. The said canal was virtually unfenced at the time the ordinance was enacted in 1939, and as a part of the transaction it was the intent of the parties that the plaintiff Government would have the right of way fenced without expense to the City, and that feature of the agreement prompted a reference contained in Section 2 of the ordinance. In compliance with such understanding the Government spent, or caused to be spent, some $56,000 for such fencing with reasonable promptness after the parties closed said transaction. The result so gained by the City served its public responsibility under the charter. Thus it is seen that the defendant City recognized two material and substantial elements of consideration in the transaction under discussion, and, moreover, the facts make it evident that this transaction fulfilled the consideration requirement of the defendant’s charter. The defendant City also apparently contends that the ordinance and attendant quitclaim deed aforesaid undertook to create a species of rights and privileges in the nature of a franchise, without conforming to the procedural requirements of the charter. The record does not show that the ordinance in question was published as directed in Section 36 of the defendant’s charter. Of course, if the subject matter of said ordinance did not constitute a “franchise”, then there was no requirement of publication, and if it is assumed that same was not published, the most natural explanation would be that the parties believed they were not dealing with a franchise. One of the most satisfactory definitions of a franchise is found in State of California v. Central Pac. R. Co., 127 U.S. 1, 8 S.Ct. 1073, 1080, 32 L.Ed. 150, as follows: “Generalized, and devested of the special form which it assumes under a monarchial government based oft feudal traditions, a franchise is a right, privilege, or power, of public concern, which ought not to be exercised by private individuals at their mere will and pleasure, but should be reserved for public control and administration, either by the government directly, or by public agents, acting under such conditions and regulations as the government may impose in the public interest, and for the public security.” The Supreme Court of Texas in T. & P. Ry. Co. v. City of El Paso, 126 Tex. 86, 85 S.W.2d 245, 249, discusses the subject as follows: “There exists a' clear distinction between a franchise and an easement. The grant of a franchise does not carry with it an interest in land. It is a privilege which may be granted and acquired without involving the ownership of land. On the other hand, an easement is essentially an interest in land; It is a dominant estate imposed upon a servient estate. The privilege of using the streets for railway purposes is a franchise. The actual occupation of the streets for railroad purposes by virtue of ordinances is an easement.” Other Texas cases on the point are noted in the margin. It should be kept in mind that the plaintiff Government in dealing with the defendant City to renew the right of way of the Franklin Canal was acting in the interest and' right of the plaintiff District, since the Government was somewhat in the position of a temporary •caretaker, as under the law the ownership of the works and facilities identified with the Rio Grande Project will ultimately go to ^he constituent Districts when the Government’s outlays of money have been reimbursed, and at the present rate of repayment the plaintiff District should become the clear and absolute owner of all the facilities and properties identified with said project and loeáted in such District, and more particularly the Franklin Canal, about the year 1968. The plaintiff District was established in 1917 under the authority of a Texas Statute. Later it was converted into a conservation and reclamation district under the Constitution of Texas, Vernon’s Ann.St.Const. Tex. art. 16, § 59, but without any change of name. Under the statute it has a broad right of eminent domain “and the authority hereby conferred shall authorize and empower such districts to condemn all lands, private and public, for the purpose herein indicated, beyond the bound: ary of 'such districts and in any county within the State of Texas”, and it' also has the power of taxation. In fact, such districts and various other similar districts are not classed with municipal corporations, but are held to be political subdivisions of the State, performing governmental functions, and standing upon the sanie footing as counties and other political subdivisions established by law. It is not- only an arm of the State, but is fashioned to perform public service and duties of high importance in the welfare of the people of Texas. It is inconceivable to think that the right of way of the Franklin Canal in El Paso, maintained for the public purposes of the plaintiff District, depends for its’ stability strictly on the will of a technical franchise, as between the District and the City. • A franchise distinctively relates to special privileges in the use of public streets,, ways and property by private corporations or persons engaged in rendering a service to the general public at a price intended to cover costs and leave a profit. The plaintiff District simply cannot fit that mold. It may be relatively infrequent, but.there is nothing singular about one governmental subdivision having a street easement in another political subdivision. The only thing that could be unique about it is to call the arrangement a “franchise”. Even where the two interested parties are a municipality and a private corporation, the mere right of the company to use and occupy parts of the public streets and other ways in the city for a business purpose is not at all necessarily a franchise. The defendant City under its charter has plenary authority and power over the streets and other public ways within the municipality. That is not to say, that the City owns the fee simple title to such streets and public ways. The Eighth Street previously mentioned was first laid out in the plat of Campbell's Addition to El Paso filed in 1887. The familiar general rule is that the abutting property owners. own the legal title to the land occupied by a municipal street, subject to the public right and easement to use the property for street purposes and such public right and easement is held for the benefit of the- public by the municipality. The record does not disclose any deviation from this general rule in connection With the dedication of said addition. The City still had plenary control, power ánd disposition of the public user rights and easements in the said street, even without any full proprietary ownership. The law is well settled in Texas that a municipality holding the estate in streets, as aforesaid, for the public cannot surrender or release such public interest therein" solely for private uses " and benefits, but it is equally well settled that a municipality with such plenary authority over its streets and public ways may relinquish the public rights and easements therein and close a street or other public way in furtherance of a legitimate public purpose and benefit, and such action has been done by a deed relinquishing the public easement in the street even without the formality of either an ordinance or resolution closing such street Of course, the defendant City could not destroy any vested rights of abutting property owners along Eighth Street, if indeed they could now have any enforceable rights after the more than sixty years of acquiescence in the location, maintenance and use of said canal and, besides, that question is not in this suit, as such land owners are not parties, but at least the defendant City was competent to relinquish and quitclaim the canal right of way to the extent of its right, interests and easements as custodian for the public in its capacity as a municipality. Another source of authority to sustain the City’s ordinance and quitclaim deed, here in question, is found in a statute of Texas, now compiled as Article 5244a, Vernon’s Texas Civil Statutes, and the material part thereof is quoted in the margin. An appellate court of Texas has held that this statute supports the authority of the defendant City to execute the very quitclaim deed now in question. It is also noteworthy that the defendant City, in that suit, relied on the validity of the ordinance and quitclaim deed in question as a defense against liability for damages from the drowning death of a boy at a bridge across the Franklin Canal. The conclusion is reached that defendant City was duly authorized, not only under its charter, but also the additional statute last mentioned, to enact the ordinance and execute the quitclaim deed pertaining to the right of way of the Franklin Canal through El Paso, and this seems so well founded that the discussion might well rest at this point, but will be continued very briefly to touch on one other question mentioned by counsel in their briefs. The remaining issue of estoppel will not be pursued with any broad analysis of the subject, but it is sufficient to say that under the general rule, as recognized in Texas, also in most other states, the defendant City, under the circumstances herein reviewed, would be held estopped to question the validity of the ordinance and quitclaim deed in question. Bridges This subject harks back again to the Franklin Canal. One of the predecessors in title, 'through whom by mesne transfers the Government acquired said canal, was the El Paso Irrigation Company. An ordinance of the defendant City, dated September 16, 1889, granted a franchise with a term of fifty years to said company for the construction, maintenance and operation of the canal through the City. The franchise included the requirement that the Company must “maintain bridges at such points as the Council shall require” over the canal. Then, after succession of title to the Government in 1912, the aforesaid ordinance was amended by another ordinance, dated December 11, 1918, which ran to “the United States of America assignee and successor of the El Paso Irrigation Company”, and, after making some rather minor changes in the right of way of the canal, continued with a proviso that the Government was bound to “construct, erect and maintain bridges” at certain street crossings over the canal, being 9 concrete bridges, some 70 feet wide and some 32 feet wide, and 2 steel or concrete bridges, one 32 feet wide and the other 20 feet wide, and 2 steel bridges, both 24 feet wide; “and shall erect and maintain and replace all bridges east of Cotton Avenue with steel or concrete bridges to be 20 feet wide, and bridges on such other streets as the Council may require.” The preceding background brings attention next to the quitclaim deed of November 9, 1939, from the defendant City to the Government, and the attendant ordinance, both already mentioned in this opinion. The quitclaim deed redeseribes the right of way of the canal, suited to the later perimeter of the City, and enumerates the location of some 31 bridges crossing the canal “heretofore constructed by the Bureau of Reclamation of the United States”, and then recites: “this conveyance is subject to the condition that the United States shall be obligated to maintain the said bridges at the said described crossings contingent, however, upon appropriations being made therefor by Congress; and there is further reserved to the said City of El Paso the right to construct and maintain at its own cost and expense such additional bridges and other structures across said canal other than those hereinabove designated as it may deem necessary.” Twelve of the thirteen bridges called for in the amending ordinance of December 11, 1913, are among the 31 bridge locations specified in the quitclaim deed last named. The last quoted recital has provoked one of the disputes herein between the parties. The Government contends for the narrower and the City for the broader meaning of “maintain”. The Government clearly is under no obligation to either build or maintain bridges at any except the 31 locations specified in the quitclaim deed. The Government, just as clearly, is bound to maintain the bridges at such named locations. The word “maintain” when directed to the subject of some structure, ordinarily means to keep it in repair and in virtually the same serviceable state. At the same time, the word should not be made a prisoner of any straight-jacket out of the dictionary. In contracts words are not detached abstractions and must take color from the subject matter and the object in mind. The requirement that the Government should maintain the bridges in question was made to keep, without expense to the City, a necessary link in service at the different canal crossings of the several public streets for the use of vehicular and foot traffic in the City. There is nothing in the writing to suggest any expectation of the parties that the City would ever have to take over the construction or maintenance of a bridge at any of the designated points, so long as the Government or the District continues the use of the canal. In fact, the City had consistently striven in 1889, and in 1931 and in 1939, as above related, to charge the owner of the canal with the duty ahd expense of maintaining bridges at street crossings over the canal, and in none of the transactions is there any inkling of a contingency which would shift such responsibility to the City, except in the event that use of the canal was abandoned. The purpose of the use of a public facility, like a bridge, is to serve a continuing and often a growing public demand, a necessity of indefinite duration. If some vandal should blow up one of the bridges in question that would not end the public need for passage over the canal. When the structure and the use are brought into focus, there is little doubt that the duty'to maintain such a bridge is imperative enough that it would not be canceled even by destruction of any given bridge. That conclusion leaves only a short stride to say further that the duty to maintain the bridges in question also demands that said bridges be kept adequate for the needs of common traffic, even if it is necessary to. widen, lengthen or reenforce any such bridge to keep pace with a growing traffic load. It is significant that the amending ordinance of December 11, 1913, aforesaid, specifies varying widths for the 13 respective bridges mentioned therein, obviously actuated by an awareness of the differing traffic densities and needs as between the various bridges, and this circumstance points up the fact that the parties were not thinking in terms of any dead monotony of bridge maintenance, but had an eye to meet the varying public need. This is enough to indicate that more than a mere routine of repairs and upkeep lies within the perspective of “maintain”, when it is appraised in the sense of said quitclaim deed. The Government’s covenant to maintain bridges does not have the aspect of a static liability, confined simply to keeping the existing bridges unchanged, but looked at in the context of the attendant transactions, the undertaking to maintain must be read in reasonable furtherance of the function of such bridges. From that standpoint it is only reasonable to say that the Government has bound itself to do any and all reasonable rebuilding, restoration, enlargement, reenforcement, and repairs, which may be required to keep at the specified crossings bridges suitable and adequate to serve, the public traffic needs at each of said locations, as same may vary with settled shifts in traffic density during the years,, and such is the holding of the court.. The aforesaid liability of the Government is contingent upon appropriation, of the necessary money by Congress, but plaintiff District, concurrently with the-quitclaim deed of November 9, 1939, andl auxiliary to that transaction, duly assumed the secondary liability in favor of the defendant City to pay for the maintenance of bridges at the foregoing several locations, whenever the necessary funds are not appropriated by Congress or provided by the Government or its agencies. Water Supply Contracts Under date of February 18, 1941, a-contract was executed between the United States of America, the City of El' Paso, and the El Paso County Water Improvement District No. 1, and, subsequently, under date of December 1, 1944,. a contract was executed between the-same parties, and, additionally, the Elephant Butte Irrigation District. The-objective of each contract was to furnish-a suppleméntal supply of water for municipal purposes to the defendant City, but within the ambit of the Reclamation. Act. Both contracts remain in force, with the qualification, as stated in the-second contract, that “It is understood that this contract is amendatory to theEl Paso District contract, which shall not be affected by the provisions hereof, except as the same may, by the provisions hereof, be expressly modified.” The present enquiry does not touch any of the divergences therein, but goes to terms covered in substantially parallel provisions of the respective contracts^ TKe i'ficlucemerit recital, from the standpoint of the City, identical in each'con'r tract, is quoted in the margin. The special feature in contractual mechanics •was a provision for the City to acquire' water right lands within the Rio Grande Project, but not to exceed 2,000 acres in either of the two Districts,' in keeping with its “desires to receive each year from the Project water supply an ■amount of water not to exceed the amount of water which such acquired lands would be entitled to receive from said water supply for the respective year, if held in private ownership of qualified Project landowners, which will in no event be in excess of three and one-half (3y2) acre-feet of water a year for each acre o'f' such" acquired' land/* Other próvisióhs''deal-.with the facilities the City will provide for receiving delivery of water, the charges and terms of payments to be made by the City, and many other particulars about the performance of such contracts. In'particular a further and somewhat novel provision singled out for attack by the City is quoted below from the second contract. On'its part the City made ready to put said contracts -in motion by acquiring numerous scattéred tracts of water right lands, aggregating about 1,400 acres within the Project territory, and built a water treatment plant as its chief facility for use in receiving delivery of the water.' The parties herein carried' on agreeably under these contracts for about ten years, with a regular routine of water deliveries by plaintiffs and payments therefor by the defendant, but in 1951 new City officials, recently elected, began challenging such contracts, as well as other past transactions between the parties, until the points of controversy matured into this law suit. The defendant City argues that the above contracts are invalid, as the Secretary of the Interior had no authority to so bind the United States, and that same were ultra vires of the City, and that same were without consideration. Counsel for the Government counter all said points of attack against the contracts. In the first place, the pivot of the question about the authority of the Secretary of the Interior is that the contracts in question infringe the 160 acres restriction in the Reclamation Act. It may be pointed out that said statute refers to land “in private ownership”, while any land bought by the City under these contracts would be held in public ownership,- and, moreover, the statutory language refers to watered land and the land of the City would not fit that description. Other statutes in pari materia have been cited by counsel, but the self-sufficient source of explicit authority for the Secretary of the Interior in the execution of the aforesaid contracts is found in still another statute. The defendant turns the last proviso of the statute in footnote 76 against the validity of the contracts by saying that such contracts obviously were “detrimental to the water service for such irrigation project”, but the short answer is that not only the Secretary of the Interior, but also the two Districts constituting the Proj'ect geographically have joined in said contracts, that is, one District in the first contract, and the two Districts in the second contract, which rather forcibly negatives any such detriment, but, aside from that, taking the City’s acquired lands out of irrigation did not at all lessen the water deliveries to other irrigated lands and neither would the City's lands going without crops perceptibly injure or damage any of the farming landowners. Instead, conceivably, it may have been a benefit. In dealing with the authority of the Secretary of the Interior in making these contracts the point has been discussed as being a proper question of law raised in the case, but, in reality, it "is doubtful that such authority is open to question by the defendant City, since same are acknowledged to be subsisting by the plaintiffs, and, in any event, the aspect of continuing executed performance by the plaintiffs is the main impact of said contracts in this suit. The authority for such contracts, from the standpoint of the City, is clear enough. The defendant City contends, however, that these particular contracts are vitiated by public policy and, particularly, the rule that municipal corporations in their legislative, governmental and police power functions cannot barter- away their discretion and continuing responsibility for the public welfare or fetter themselves in the control and use of public property, and, of course, if these contracts violate that well settled principle same are invalid. The power of attorney provisions and the requirement that a resale of the City’s water right lands must be confined to a qualified landowner under the Reclamation Act, quoted in a preceding footnote, are. the particular target for the defendant’s, attack. In the first place, an important thing to keep in mind is that in- the execution of the contracts in question the City was acting, not in its public or governmental capacity, but in its municipal and proprietary capacity. True enough the power of attorney section of the contracts did tie the hands of the City to a degree in respect to any later disposition of the water right lands acquired by the City and in many transactions that kind of a restraint upon a municipality might be obnoxious to public policy, but that does not necessarily follow in all transactions. Such a restriction certainly can be legitimate where it is reasonable and works to a proper end w