Full opinion text
JAMES R. NORVELL, Special Justice. This is an appeal from the final judgment rendered in Cause B-20,576 on the docket of the District Court of Hidalgo County, 93rd Judicial District, styled, The State of Texas, et al v. Hidalgo County Water Control and Improvement District No. Eighteen, et al, and commonly referred to as the Lower Rio Grande Valley Water Suit. In Hidalgo & Cameron Counties Water Control & Improvement District No. Nine v. J. H. Starley, Special Judge, 373 S.W.2d 731 (Tex.Sup.1964), the Supreme Court pointed out that this suit [No. B-20,576] “was filed by the State in 1956 to obtain an adjudication of the water rights to the American share of the waters of the Rio Grande. The fifth amended original petition of the State names approximately three thousand defendants who claim the right to use water from the Rio Grande for a variety of uses, including the irrigation of over 850,000 acres of land situated in the Counties of Starr, Hidalgo, Cameron and Willacy.” The judgment from which this appeal is prosecuted adjudicates the water rights on that segment of the river system lying immediately below the Falcon dam and extending to the mouth of the Rio Grande. I. Introductory Because of a severe drought and water shortage in the 1950’s, suits were filed which invoked the judicial power to control the American waters in the lower Rio Grande. Some of these cases reached the appellate courts in 1952. See, Hidalgo County Water Improvement District No. Two v. Cameron County Water Control & Improvement District No. Five, 253 S.W.2d 294 (Tex.Civ.App.1952, wr. ref’d, n. r. e.), and Hidalgo County Water Improvement District No. Two v. Cameron County Water Control & Improvement District No. Five, 250 S.W.2d 941 (Tex.Civ.App.1952, application for prohibition and injunction denied). Because of this situation and the completion of the Falcon dam, the State of Texas filed the present suit calling for an adjudication of the water rights of those owning or claiming water rights to lands lying below Falcon Lake or Reservoir. These lands lie within the delta area of the Rio Grande. The contest between the appropriators and those asserting riparian claims to the waters of the river was severed from the cause and docketed under the style of State of Texas v. Valmont Plantations. This severed cause reached the Supreme Court in 1962 and that court held that the Spanish and Mexican grants along the lower Rio Grande did not carry with them appurtenant irrigation rights. The opinion of Mr. Justice Pope of the San Antonio Court of Civil Appeals was adopted as the opinion of the Supreme Court. See, Valmont Plantations v. State of Texas, 163 Tex. 381, 355 S.W.2d 502; 346 S.W.2d 853. After an exhaustive review of the applicable authorities, the Supreme Court disapproved of certain obiter dicta contained in the opinion rendered in Motl v. Boyd, 116 Tex. 82, 286 S.W. 458 (1926), which contained a discussion of Spanish and Mexican water law, although no Spanish or Mexican grant was involved in the case. The circumstance that numerous tracts of land in the lower Rio Grande Valley, having no connection with the legal title to an appropria-tive right, have been under irrigation for a long period of time does not authorize us to disregard the Valmont decision and say that such lands have a legal appurtenant water right under the appropriation statutes of this State. Further, we are not concerned with the respective merits of the riparian and appropriation systems. The debate with reference thereto has been settled by the Valmont decision insofar as the lower Rio Grande Valley is concerned. In addition to Valmont, the following cases connected with the present controversy have reached the appellate courts: Hidalgo County Water Improvement District No. Two v. Blalock, District Judge, 157 Tex. 206, 301 S.W.2d 593 (1957); Hidalgo County Water Control & Improvement District No. One v. Boysen, 354 S.W. 2d 420 (Tex.Civ.App.1962, wr. ref’d); Hidalgo & Cameron Counties Water Control & Improvement District No. Nine v. Starley, Special District Judge, 373 S.W.2d 731 (Tex.Sup.1964); and State of Texas v. Starley, Special District Judge, 413 S.W. 2d 451 (Tex.Civ.App.1967, no writ, application for mandamus). The final judgment from which this appeal is prosecuted was rendered on August 1, 1966 to become effective on September 1, 1966. The State of Texas brought the case here and numerous parties, both plaintiff and defendant below, appear herein, and some of them present contentions both as appellants and as appellees. When necessary, the litigants will be referred to by name. As the briefs herein contain well over a hundred points and counterpoints, we shall not unduly lengthen this opinion by noticing particular points except in those instances where it is essential to an understanding of our holdings. The trial court in its judgment set aside a reserve of 60,000 acre feet of the American waters in the Falcon reservoir for municipal purposes and, in addition, made certain allocations of water in behalf of the towns and cities within the area. After an appeal had been duly perfected to this court, all the parties who had filed points attacking the muncipal allotment of the trial court entered into a stipulation with the cities affected under which it was agreed, subject to the approval of this court, that the trial court’s judgment as to the municipal allotment should be modified and judgment rendered for a somewhat smaller amount of water than that fixed by the court below. The stipulation also provided for a distribution of the water allotment between the interested muncipal-ities. This court approves of the stipulation so agreed upon and judgment will be modified in this particular as therein provided. II. The Trial Court’s Judgment and the Priorities Established Therein The judgment below was rendered by Honorable J. H. Starley, Special District Judge. It consists of a Foreword and four additional parts which are referred to as sections. According to the Foreword, “Section I is the formal Decree itself, which by reference incorporates Section II, the Decision, Section III, the individual rights found and adjudicated, and Section IV, the map section for the purpose of identification of the respective tracts.” In addition to the 60,000 acre foot reserve above mentioned, the trial court made various allowances or allotments for Municipal, Industrial and Domestic Uses, including the watering of livestock. As modified by the stipulation heretofore mentioned, these allowances and allotments are approved and judgment as to them is rendered accordingly. As to the water rights for irrigation purposes, the trial court did not proceed in strict accordance with the principle of “first in time, first in right” usually associated with the appropriative system, but employed a scheme designated as the “weighted or Dalrymple” plan of priorities. Five classes of priorities of irrigation waters were established and are described in the “Decree” (Section II of the judgment) as follows: “Class I or First Priority Classification are all those lands that have been developed for agricultural purposes by the application of irrigation water under the concept of certified filings which the Court has found and declared to have been established under the Acts of 1895 and 1913. * * * ” “Class II or Second Priority Classification shall consists of those areas wherein permits were obtained from the State Board of Water Engineers between the effective date of the Irrigation Act of 1913 and the Treaty date of November 8, 1945, and those areas which were developed thereunder in accordance with the permits. Provided, however, that if the permit was basically a ‘drainage water permit’ but also had tied into its concept that it included any waters originating from the Rio Grande, the Court has held and now holds that such permits are in fact effective as against the American share of the waters under the Treaty. * * * ” “Class III or Third Priority Classification is the classification denominated ‘Treaty.’ This means that as to the areas designated in Section III hereof and found to have been applying water to beneficial use for agricultural purposes as to each tract of land, such uses are protected under and by virtue of the Treaty. * * * ” “Class IV or Fourth Priority Classification is given to those permits granted by the State subsequent to the treaty date of November 8, 1945. * * * ” “Class V or Fifth Priority <Classification is that group of water rights the Court denominates as ‘Falcon.’ This applies to lands that had developed some use of water subsequent to the date of the treaty and prior to the actual beginning of Falcon Reservoir in December of 1950 and which areas fall outside of and not within any of the first four categories. * * * ” These priorities were “weighted” by the use of the following language: “The unallocated water periodically will be divided into equal parts per acre for each Priority class, after a deduction of the 60,000 acre feet per annum reserved for domestic and urban uses. Priority I will be given 1.7 times as much per acre as Priority V, Priority II 1.5 times as much, Priority III 1.3 times as much, and Priority IV 1.1 times as much as Priority V.” By the judgment, the approximate percentages of the lands in the suit were allocated to the five classes of weighted priorities as follows: Class I — 70%, Class 11 — 19%, Class III — 4%, Class IV — 2%, and Class V — 5%. A number of objections' are- leveled against these weighted priorities. The State directly asserts that the trial court erred in placing in the Class I priority numerous tracts of land which have no connection with the legal title to an appropriate right and that there is no valid basis for the minor classifications designated as Class III (Treaty) and Class V (Falcon) priorities. Other parties assert that the trial court erred in deviating from the “first in time, first in right” principle without a supporting cause or adequate reason therefor. Some of the litigants assert that as a result of the 1945 treaty and the construction of storage dams in the river, there should be no distinction on a priority basis attempted between and among owners of water rights in and to the waters of the river. It is also asserted that for the past forty years at least, there has been confusion as to the nature and extent of water rights along the lower Rio Grande and because of this condition, as well as other circumstances, there should be a judicial recognition of rights which are admittedly defective in that the appropriation statutes were not substantially complied with. In view of these various contentions, it is necessary to briefly set out the development of irrigation in the lower Rio Grande Valley. III. Summary of the History of the Rio Grande and the Development of Irrigation on the Lower Reaches Thereof The Rio Grande is one of the historic rivers of North America. It is also one of the longest. It rises in the high Rockies of southern Colorado and flows from Colorado through New Mexico, reaches Texas near El Paso and thence flows in a general southeasterly direction to the Gulf of Mexico near Brownsville. By act of the Congress of the Republic of Texas of December 19, 1836, the river was established as the boundary between Texas and Mexico. By extending this boundary southward from the Nueces, the Texas Republic not only occupied that portion of the Mexican state of Coahuila and Texas, commonly referred to as Texas, but a portion of the Mexican state of Tamaulipas as well. The Valmont opinion (Valmont Plantations v. State of Texas, 163 Tex. 381, 355 S.W.2d 502 (1962); 346 S.W.2d 853 (Tex.Civ.App.1961), contains an account of the settlement of the lower Rio Grande Valley by Spanish authority under the direction of Jose de Escondon, the Count of Sierra Gorda. See also, Davenport, “Texas Laws of Waters,” Vol. 21, pp. xiii et seq., Vernon’s Ann.Tex. Stats.; Casteneda, “Escondon and the Settlement of the Lower Rio Grande,” contained in Vol. 3, ch. 4, pp. 130-196 of “Our Catholic Heritage in Texas”; Hill, “Jose de Escondon”; Norvell, “Spanish Towns,” 37 Notre Dame Lawyer 630. .In the upper reaches of the Rio Grande, —from the source to El Paso — the water carried by the river is drained from American territory. In 1906, a treaty was ratified between the United States and Mexico relating to the waters of the Rio Grande above Fort Quitman, Hudspeth County, Texas, 34 Stat. 2953. These waters are accumulated primarily from American sources. Under the terms of this treaty, the United States agreed that after the completion of a proposed dam (Elephant Butte) and the distributing system auxiliary thereto, it would deliver to Mexico 60,000 acre feet of water annually at the Acequia Madre, known as the Old Mexican Canal situated above the City of Juarez. It would seem that Mexico had little claim upon these waters which were drained from American lands other than the fact that it had for a number of years been using such waters by diversion into the Acequia Madre. However, Mexico did waive any and all claims for any purpose whatever to waters between the head of the Mexican Canal and Fort Quitman (some eighty river miles), — an area of scant rainfall and river flow. The Rio Grande extends 1,120 miles from Fort Quitman to the Gulf and although numerous attempts were made to promulgate a treaty dividing the waters between the two nations, such attempts were not successful until 1944. Before that time, however, extensive agricultural development had taken place in the Rio Grande delta on both sides of the river but particularly on the left bank or American side. This development was almost entirely dependent upon irrigation from waters of the Rio Grande. The river as it flowed southward from Fort Quitman assumed different characteristics from those exhibited in Colorado and New Mexico. The region bordering the river and the territory supplying its waters, such as they were, were largely arid in nature and possessed desert characteristics. The larger portion of the water reaching the delta comes from Mexican sources such as the San Juan, Alamo, Con-chos, San Diego, San Rodrigo, Escondido, the Salado and Las Vacas Arroyo. These tributaries carry far more water into the Rio Grande than do the American streams, —the Pecos, Devil’s River, Goodenough Spring, Alamito, Terlinguia, San Felipe and the Pinto creeks. The treaty between the United States and Mexico, ratified in 1945, 59 Stat. 1219, related to the waters of three international streams, namely, the Rio Grande , the Colorado and the Tijuana. Possibly due to this circumstance or the greater agricultural development on the American side, the treaty provided for a 58% (American) and 42% (Mexican) division of the Rio Grande waters. This, despite the fact that it could be logically argued that each nation should be entitled only to that portion of an international stream as had been drained from its territory. Three proposed storage dams were mentioned in the treaty, one to be located in the section between Santa Helena Canyon and the mouth of the Pecos River, one between Eagle Pass and Laredo, Texas (Piedras Negras and Nuevo Laredo in Mexico), and a third in the section between Laredo and Roma, Texas (Nuevo Laredo and San Pedro de Roma in Mexico). Provision was made for the omission of one or more of the stipulated dams by agreement of the parties and the construction of such additional dams as might be determined by the International Boundary and Water Commission with the approval of the contracting governments. The Falcon dam and reservoir, now constructed, is situated in the section between Laredo and Roma, Texas. Since the filing of this suit, a second dam known as Amistad has been completed. It is situated below the confluence of the Devil’s River and the Rio Grande. The size and storage space of the reservoirs created by these dams are indicated by the following: Falcon Reservoir Location — 80 miles down stream from Laredo, Texas Maximum design flood stage — 4,150,000 acre feet Conservation storage space (winter) — 2,771,000 acre feet Conservation storage space (summer) — 2,710,000 acre feet Flood storage space (winter) — 509,480 acre feet Flood storage space (summer) — 909,480 acre feet Division of conservation storage — United States — 58.6%, Mexico— 41.4% United States conservation storage (winter) — 1,620,000 acre feet Amistad Reservoir Location — -12 miles up stream from Del Rio, Texas Maximum design flood stage — 5,660,000 acre feet Conservation storage space — 3,550,000 acre feet Flood storage space — 1,775,000 acre feet Division of conservation storage — United States — 56.2%, Mexico, —43.8% United States conservation storage — 1,995,000 acre feet The 1945 treaty also changed the name of the International Boundary Commission, established in 1889, to the “International Boundary and Water Commission, United States and Mexico,” and vested it with extensive authority over the Rio Grande waters including the measuring, storing and release of reservoir waters for flood prevention purposes or to satisfy the water needs of the contracting nations. The construction of dams along the Rio Grande and the impounding of waters that otherwise would have flowed to the sea, particularly during flood periods, undoubtedly increased materially the amount of water that was available for irrigation of lands on the American side of the river. The State of Texas had no control over nor official part in the construction of the Rio Grande storage dams nor does it regulate or control the release of waters from the treaty reservoirs. No requirement was made that those holding irrigation water rights in and to Rio Grande waters surrender such rights to the authority controlling the storage dams. The 1945 treaty contemplated that the dams to be constructed should be operated by the International Boundary and Water Commission so as to insure the continuance of existing uses and development of the greatest number of feasible projects within the limits of the treaty provisions. As a result of the promulgation of the treaty and the construction of the dams in accordance therewith, the State of Texas received considerably more water for irrigation purposes than it had been using from the free flowing river and also received a larger percentage of the Rio Grande waters than it would have received had such waters been divided upon a fifty-fifty basis or under a plan which would allocate to each country those waters which flowed over or were drained from its territory into the river. The non-static and ever changing nature of the Rio Grande was emphasized by Judge Starley in the “Decision” portion of his judgment and this factor is worthy of note. In the nineteenth century, the river was navigable in fact and the treaty of Guadalupe-Hidalgo, which formally ended the Mexican War, provided that neither of the contracting nations would interfere with the free navigation of the river. At present, the water course is an unstable and irregular river in its lower reaches, visited alternately by drought and flood.' Increased irrigation along the Mexican tributaries of the Rio Grande constituted another complicating and changing factor. International action became essential to forestall disastrous economic losses. However, action was taken; dams were constructed for flood control, hydraulic power and storage purposes, and the Rio Grande thereupon ceased to be a free flowing stream. IV. Statutory Enactments Pertinent to the Appropriation of Waters from the Rio Grande The Texas water appropriation acts were primarily intended to apply to free flowing streams and contemplated that such dams and storage facilities as were desirable would be constructed by the water appropriators. There were no Texas statutory enactments governing rights to waters impounded by state, governmental or international action. The appropriative system was imported into Texas by the 1889 Irrigation Act, Acts 1889, 21st Leg., p. 100, ch. 88, Gammel’s Laws of Texas 1128, which provided that an appropriator could acquire a water right and fix a priority by diverting water from a stream, putting it to a beneficial use and filing with the County Clerk an affidavit and map depicting the diversion works and describing the proposed use. This Act, as well as the 1895 Act which followed it, applied only to the arid regions of the state. In 1895, the Legislature rewrote the appropriation law, Acts 1895, 24th Leg., p. 21, ch. 21, 10 Gammel’s Laws 751, and divided the public waters of the state into “ordinary flow and underflow” on the one hand and storm or rain waters on the other. It also carried forward the 1889 provisions which required the filing of a map and affidavit by the appropriator, but provided that a failure to so file should not work a forfeiture of theretofore acquired rights. The Act also specified the items to be included in the sworn statement filed for record with the County Clerk and required that the affidavit show the approximate number of acres to be irrigated, the name of the ditch or canal, and its size, capacity and location, the name of the appropriator, and the name of the stream from which water was to be taken. A map showing the route of the ditch or canal was to be attached to the affidavit. Upon filing, the appropriator was required to proceed with diligence in the construction of his proposed works. Completion of such works constituted the perfection of the water right. A project was completed and a water right perfected by taking the water into the system and conveying it through the canal as shown on the map to the place of intended use described in the sworn statement. In 1913, the Legislature adopted the Burges-Glasscock Act. Acts 1913, 33rd Leg., p. 358, ch. 171, 16 Gammel’s Laws of Texas 358, which had statewide application. All waters in Texas streams to which prior rights had not attached were declared to be the property of the State and a Board of Water Engineers, a predecessor agency to the present Texas Water Rights Commission, was created. The 1913 Act also gave rise to the term, “Certified Filing” (C.F.), in that it required the County Clerk of the respective counties to prepare certified copies of all instruments in his office relating to the appropriation of public waters and forward them to the office of the Board of Water Engineers, where they were filed and serially numbered. The 1913 Act also introduced a permit system which was placed under the control of the Board of Water Engineers. The County Clerk filing procedure was superseded and an application to the Board of Water Engineers for a permit to appropriate water was substituted therefor. The Burges-Glasscock Act was revised and expended by the Canales Act of 1917, Acts 1917, 35th Leg., p. 211, ch. 88, however, the permit system was retained and it is not essential here to discuss the 1917 legislation in detail except to say that an administrative system for the adjudication of water rights provided for in the Act was nullified by the Supreme Court in Board of Water Engineers v. McKnight, 111 Tex. 82, 229 S.W. 301 (1921). By virtue of these appropriation statutes, the adoption of the common law as the rule of decision in Texas, and various court decisions, Texas has with certain exceptions recognized two systems of rights relating to water flowing in the streams and rivers of the state, namely, the riparian by common law and the appropriative by statute. Wells A. Hutchins, “The Texas Law of Water Rights,” pp. 101 et seq. The present suit was filed on June 28, 1956 and as of October 17, 1956, the court took judicial custody of the American waters of the Rio Grande in that reach of the river extending from Falcon reservoir to the Gulf of Mexico. A temporary injunction was issued restraining the diversion of water from the river in violation of the court’s custodial control. Since that date, the American waters have been divided and allotted among the various users by a Master in Chancery or Water Master under the direction of the district court. As above noticed, that portion of the case relating to the conflicting claims of the appropriators and riparians to the waters of the Rio Grande was severed from this cause and was decided by the Supreme Court adversely to the riparian claimants of lands who held under Spanish and Mexican land grants. Valmont Plantations v. State of Texas, 163 Tex. 381, 355 S.W.2d 502 (1962); 346 S.W.2d 853 (Tex.Civ.App.1961). V. The Weighted Priorities While, in view of the unprecedented circumstances of this case, it is our opinion that a plan of weighted priorities is both permissible and desirable, we are unable to agree with the classification of priorities set forth in the judgment. Undoubtedly, in recent years a different approach to the matter of water use has developed not only in Texas but throughout the United States. It has been suggested that when there is an abundant quantity of available water and few people, the riparian system works satisfactorily; when there is less water and more people, an appropriation system of sorts usually develops and for a while meets the exigencies of the situation, but when there is still less water and still more people, a demand for governmental conservation, control and allotment becomes imperative. If there is one persisting factor operating to influence and shape the law of waters, it is, as pointed out by Judge Starley, the element of change, — change in conditions as to populations and physical characteristics of water courses. Cf. Trelease, “Trends in the Law of Prior Appropriation,” Water Law Conference, University of Texas, 1952-1954, p. 206. In 1942, Wells A. Hutchins noted that in 1911, Wiel suggested that there might be a modification of a strict priority system. Mention was also made of Harold Conk-ling’s views that the doctrine of appropriation as interpreted by the courts has not been entirely satisfactory for complex conditions and that there has been a tendency toward modification. Conkling gives as examples the Inter-State Compacts, the Central Valley Project in California and the tendency toward “equitable allocation” of waters in cases between states before the Supreme Court of the United States. Wiel is also quoted as saying: “At all events, adjusting uses that are now on hand seems to be getting more attention than additional development. In terms of law, the moderating principles of correlative rights and reasonable use seem to be outstripping exclusive rights by priority of appropriation in general esteem. This is the impression which, it is believed, an observer gets from fifty years of water law here reviewed.” There is this additional complication in this case. Some parties to this suit hold under certified filings which call for the normal flow and underflow of the river. Others claim under certified filings or permits which call for flood waters. See, Motl v. Boyd, 116 Tex. 82, 286 S.W. 458 (1926). Still others call for both classes of water. The trial court here found “as a fact that for all practical purposes it is impossible to classify waters in the categories” of normal flow and flood waters. The court further found that “neither the hydrologists nor the legal profession can identify ‘normal’ flow as defined in Motl v. Boyd.” Honorable Roger Blalock, who tried the Valmont phase of the case, had similar difficulties. In many respects, the Rio Grande has the characteristics of a waterway described in Spanish law as a “torrent,” — a course having an unstable and unpredictable source of ground water with the result that at times, it resembles a dry creek, while in times of heavy rainfall, it serves as a floodway. VI. The Treaty and Falcon Classifications The Third (Treaty) and Fifth (Falcon) classifications or weighted priorities are attacked by the State as well as other parties to the suit. Seemingly, in defense of the trial court’s action, it is asserted by some of the parties that the legislative acts, under which the various applications for appropriations were made, refer to the rivers, streams, etc. within the State of Texas (or within those arid portions of the state), and hence have no application to the Rio Grande which is an international stream constituing the boundary between two sovereign nations and does not lie within the State of Texas. While this a possible construction of the appropriation acts, it is not the only construction that may be placed upon such statutes. It has never been adopted or approved by any court decision, but on the other hand, the State has through its administrative agencies, notably the Board of Water Engineers, repeatedly recognized the applicability of such statutes to the Rio Grande. We recognize this long standing administrative practice and hold that it was the intent of the Legislature that the statutory enactments relating to the appropriation of water should have application to streams which constitute a portion of the boundaries of the state. It is argued that the 1945 Rio Grande, Colorado and Tijuana treaty operated to vest some kind or species of water right in all those who were in fact using water at the time of the treaty’s ratification. Article 5 of the treaty does refer to “existing uses” in these words: “The two governments agree to construct jointly, through their respective Sections of the Commission, the following works in the main channel of the Rio Grande (Rio Bravo): “I. The dams required for the conservation, storage and regulation of the greater quantity of the annual flow of the river in a way to ensure the continuance of existing uses and the development of the greatest number of feasible projects, within the limits imposed by the water allotments specified * * * ” It is urged that: “The Treaty does not limit or restrict the existing uses as mentioned in Article 5 to uses existing pursuant to appropriate rights acquired under the laws of the State of Texas, and it is nowhere provided in the Treaty, in the protocol, in the ratification by the United States Senate or in any statute enacted by Congress authorizing and providing for the construction of any of the international dams contemplated by Article 5 that the existing uses were limited or restricted to those based upon appropriate rights granted by the State of Texas or acquired pursuant to its irrigation laws.” The Secretary of State at the time of the consideration of the treaty, Honorable Cordell Hull, in discussing the probable benefits of the treaty, stated: “The quantity thus allotted will not only supply existing uses but also will permit, by an efficient use of the water, considerable expansion of irrigated areas in Texas.” It also appears that while the treaty was being considered by the United States Senate, the Texas Legislature adopted a House Concurrent Resolution which was presented to the Senate Committee on Foreign Relations in connection with the appearance before that body of Honorable Grover Sellers, Attorney General of Texas. This concurrent resolution contained the following statement: “Whereas the impounding of these waters and their equitable distribution between the two countries will not only safeguard and protect existing uses but will permit expansion of our 400,000 acres of irrigated lands within the United States, thus materially adding to the food supply of the country and to the prosperity of the State of Texas;” and that it be “resolved by the House of Representatives of the State of Texas, the Senate concurring, that the Texas legislature go on record endorsing the ratification of the Treaty and that the Senate of the United States be, and it is hereby urged to ratify the said Treaty at the earliest possible moment.” While we recognize that the promulgation and ratification of the 1945 treaty had a highly important bearing upon the issues involved in this litigation, we do not accept the theory that the United States as one of the contracting powers conferred upon all those using water from the Rio Grande in 1945 a legal right not theretofore held by such persons. In the Senate Resolution ratifying the treaty, it was expressly stated that: “(b) Insofar as they affect persons and property in the territorial limits of the United States, the powers and functions of the Secretary of State of the United States, the Commissioner of the United States Section of the International Boundary and Water Commission, the United States Section of said Commission, and any other office or employee of the United States, shall be subject to the statutory and constitutional controls and processes. * * * “(c) That nothing contained in the treaty shall be construed as authorizing the Secretary of State of the United States, the Commissioner of the United States Section of the International Boundary and Water Commission, directly or indirectly, to alter or control the distribution of waters to users within the territorial limits of any of the individual States.” In Hidalgo County Water Control & Improvement District No. Seven v. Hedrick, 226 F.2d 1 (1955), the United States Court of Appeals for the Fifth Circuit, in considering the effect of the 1945 treaty, said: “The treaty apportioned the water of the Rio Grande and allocated the share that might be diverted and used on each side of the river, but without making or intending to make any provision as to how or by whom the water so apportioned and allocated should be used upon being diverted. Increases in diversion to and use upon either side is prohibited except upon the condition stated. We think it was intended by the parties to the treaty that to each nation should be left the power of making determinations, pursuant to its own law, of those who are, may become, or cease to be, entitled to the use of the waters secured by the treaty to such nation, and their relative rights among themselves. If any intent had been present to create or protect or give a priority to individual property rights of one group resulting in the diminution of those of another group, the operative language would have been couched in more explicit terms.” The existence of the treaty cannot be ignored as an important factual circumstance in this case, but the United States did not by the treaty confer on anyone a right emanating from the central government to make use of the waters of the Rio Grande. The judgment is modified so as to eliminate the No. Ill or treaty classification. We shall hereinafter treat of priorities from a different approach and in so doing, again refer to the Class III (Treaty) classification. Little need be said here with reference to the No. V or Falcon classification. Other than the circumstance that certain parties were actually making use of Rio Grande water upon a certain date, there is little to be said in its behalf. Because of reasons and circumstances hereinafter mentioned, we do not deprecate the element of actual use, but all that we need say here is that the Falcon classification cannot be supported upon the grounds set forth in the trial court’s “Decision” portion of the judgment. This section of the judgment may in some respects be equated with findings of fact and conclusions of law. The judgment is modified so as to eliminate the No. V or Falcon classification. VII. Class I or First Priority Classification As above pointed out, the trial court applied this classification to those lands that had been used for agricultural purposes by the application of irrigation water under the concept of certified filing's. This classification makes a distinction between lands developed before 1913 when the permit system superseded the certified filings and those that were developed thereafter. It also awards to persons who have no connection with the legal title to the water appropriation, a First Priority Classification. The 1895 Act required that an appropriator in his sworn declaration to take public waters state among other things, the approximate “number of acres of land that will be irrigated.” Some of these statements or declarations were both extreme and inedfinite, and many of the descriptions of the lands to be irrigated set forth in such declarations were conflicting and overlapping. However, the trial court awarded numerous persons and tracts a Class I priority simply because their land was situated within the land area proposed to be irrigated as indicated by a certified filing, despite the fact that they had no connection with the filing; the theory being that such development took place under the concept of certified filings rather than because of a compliance with statutory requirements. In our opinion, the State’s point, as well as that of other parties attacking this theory of “concept of certified filings,” is well taken and calls for a modification of the judgment. VIII. The Class II and Class IV Priorities These classifications are based upon date brackets. Class II embraces those areas for which permits were obtained from the Board of Water Engineers between the effective date of the Irrigation Act of 1913 and November 8, 1945, the date upon which the Rio Grande-Colorado-Tijuana treaty was ratified. Class IV is a minor classification and embraces 12,640.99 acres of land in Hidalgo County for which permits were granted subsequent to the treaty date of November 8, 1945. Distinctions are thus sought to be made between those holding under permits issued before and after the date of the treaty. Both of the permit classifications are made inferior to the rights of those holding under declarations made in accordance with the Act of 1895, which gained the status of certified filings by compliance with the Burges-Glasscock Act (1913). These classifications may roughly accord with the “first in time, first in right” principle of the appropriative system. However, in application, certain difficulties are encountered. The 1895 statute makes a distinction between “the ordinary flow or underflow of every running or flowing river or natural stream and the storm or rain waters of every river or natural stream, * * *.” This distinction is recognized in subsequent statutes. See, Motl v. Boyd, 116 Tex. 82, 286 S.W. 458 (1926), in which it was held that riparian rights attach only to the ordinary flow or underflow of a river. There are no riparian rights to irrigation along the reaches of the Rio Grande with which we are here concerned, Valmont Plantations Company v. State of Texas, 163 Tex. 381, 355 S.W.2d 502 (1962); 346 S.W.2d 853 (Tex.Civ.App.1961), but as above pointed out, many of the certified filings here involved refer to an intention “to appropriate for irrigation purposes the unappropriated water of the ordinary flow and underflow of the Rio Grande. * * *” Our attention has not been called to any certified filings wherein an intention was expressed to construct storage “dams, dykes or reservoirs” for the purpose of holding or storing the storm or rain waters of the river. Along the Rio Grande as a usual procedure, water is raised or lifted from the river by means of pumps, many of which are of enormous capacity. Other than use of the canals themselves, no provision for storage is attempted. Some applications for permits filed under the 1913 and later Acts do include plans for reservoirs and the permits purport to award the applicants the right to appropriate the “storm or rain waters” of the river, as well as certain rights in and to the ordinary flow and underflow of the Rio Grande. In the “Decision” portion of his judgment, Judge Starley expressly found that: “While the records for the past sixty-odd years give some indication of what have been classed flood waters, what might have been 'normal flow’ the changes upon the tributaries and the construction of the storage reservoir at Falcon and Amistad now in progress have so comingled and changed the physical characteristics of the River that the court will find as a fact that for all practical purposes it is impossible to classify waters in the Rio Grande as so comingled has become a part of the American share, and it is composed of the chemical elements that make up water.” While it may be impossible to state with accuracy the proportions of the two classes of water that may be impounded in Falcon reservoir at any particular time or within any particular year, it is reasonably safe to assume that the greater portion of said waters is and will be storm or flood waters, and it could be argued with force that those certified filings and permits calling for storm waters should be allowed a preference over those calling only for the ordinary flow and underflow of the river. In our opinion, there is no practical value to be realized in recognizing a distinction between certified filings and permits, nor between permits of different dates. All of such filings and permits were issued under laws which were adopted in contemplation of free flowing as contrasted with controlled rivers or streams. IX. Legal and Equitable Claims The Attorney General and many of those parties holding under certified filings and permits assert that the Legislature of this state has provided an exclusive way by which appropriative water rights may be acquired and that unless such statutory procedures are followed, a valid water right cannot be acquired. We recognize the force of this argument and although the Legislature in 1895 and 1913 never envisioned or contemplated the present existing situation, we would not be justified in saying that the statutes have no application to the case. However, the equity arm of a court is not inoperative in the presence of an unprecedented situation. In fact, in one of the suits precipitated by the drought of the 1950’s, a district court, for the first time in Texas, took judicial custody of the waters of a flowing river and appointed a Master in Chancery or River Master in order to control an unprecedented condition then existing along the lower Rio Grande. Hidalgo County Water Improvement District No. Two v. Cameron County Water Control and Improvement District No. Five, 253 S.W.2d 294 (Tex.Civ.App.1952, writ ref’d n.r.e.). The Water Master procedure has been followed in this case and has now been sanctioned by legislative enactment. Acts 1957, 55th Leg., p. 1347, ch. 458, amended, Acts 1965, 59th Leg., p. 51, ch. 18, Article 7589b, Vernon’s Ann.Tex.Stats.; State v. Starley, 413 S.W.2d 451, l.c. 464 (Tex.Civ.App.1967, orig. mand.). We have heretofore set out a number of salient facts and circumstances which make up a most unusual situation and we here briefly recapitulate. 1. The uncertainty as to the nature and origin of water rights along the lower section of the river prior to the decision of the Supreme Court in the Valmont case, 163 Tex. 381, 355 S.W.2d 502 (1962); 346 S.W.2d 853 (1961). 2. While no water right as such emanated from the United States to anyone, it is a fact and circumstance of this case that the promulgation of the treaty and the construction of dams across the river has, (a) changed the river from a free flowing stream to a controlled water course, and (b) made available for Texas users along the left or American bank of the Rio Grande a much greater amount of water for irrigation purposes by virtue of the approximate 58%-42% division of the waters between the United States and Mexico and the providing of storage space for flood waters. 3.The failure of the Legislature, largely because of the dispute between landowners in the lower Valley as to the nature and extent of their water rights, to specifically treat of rights in stored waters when such storage made greater quantities of water available for irrigation purposes by the construction of dams by agencies of the national or state governments. The statutes of 1895 and 1913 sound as an uncertain trumpet in the complicated situation which now confronts us, involving as it does the mixing and impounding of two classes of water, — flood and ordinary flow. There is room for some equitable adjustment. 4. Insofar as certified filings under the 1895 Act are concerned, the State of Texas provided that one might obtain an appropriative right by complying with the statute and designating an area which the appropriator intended to irrigate. The 1913 Act and subsequent statutory enactments relating to the permit system had similar provisions as to the area proposed to be irrigated. It was the trial court’s theory that if lands were within the area described or indicated in a certified filing or an application for a permit, the State had in fact extended a privilege which might be matured into a water right by putting water to a beneficial use upon the land described in the declaration or the application for a permit, and that while the State had an interest in the waters being put to a beneficial use, it had no particular interest in who made such beneficial use of the water so long as it was applied to lands within the area indicated in the declaration or application for permit. Although we think it essential that a connection with the title to the appropriation be shown before a legal right can be established, nevertheless it must be recognized that a privilege of sorts had been extended by the State which included the area covered by a declaration or application for a permit. So far as we have been able to ascertain, the Board of Water Engineers, or any successor state agency, has never taken action to cancel, restrict or limit the scope or operations under a certified filing or permit which had been issued relating to the waters of the Rio Grande. The lands along the lower river seem to be blanketed, so to speak, with certified filings and permits, many of which are conflicting and overlapping. The trial court has found that those tracts which were given a Class I priority lay within an area covered by a certified filing. Such claims, while imperfect, nevertheless have a connection with State legislative action and are cognizable in equity. 5. The general public policy of the State existing before and strengthened by the 1917 conservation amendment to the Texas Constitution (Art. 16, Section 59, Vernon’s Ann.St.). The trial court recognized water rights as existing in persons and lands having no connection with the legal title to water rights evidenced by certified filings or permits. In so doing, the court necessarily found that there are actual good faith uses being made of the Rio Grande waters, although some of such users may not be connected with a statutory appropriation. It is also apparent that some few others, which will be hereinafter specifically noticed, are also actual good faith users. We are of the opinion that while such persons may not be entitled to a right of the same grade or class as those who have complied with the appropriation statutes or whose rights have been recognized by the State in some way, they are nevertheless entitled to consideration by a court of equity. As might be expected, there are no precedents controlling the unusual situation presented. The cases which bear some similarity to the present litigation and illustrate the extensive powers of equity in unusual circumstances are those rendered by the courts of the Western States which recognized custom as a basis for an appropria-tive right and thus prior to legislative action gave judicial approval to a non-riparian water system. And this, despite the fact that the title to the subject matter of the litigation, i.e. land and water, had never passed out of the sovereign. See, Irwin v. Phillips, 5 Cal. 140, 63 Am.Dec. 113 (1855). In Coffin v. Left Hand Ditch Co., 6 Colo. 443 (1882), the appropriation system was judicially recognized in Colorado as the riparian system was wholly unsuitable to meet the needs of the state. In the earlier case of Yunker v. Nichols, 1 Colo. 551 (1872), which foreshadowed the decision of Coffin v. Left Hand Ditch Co., Mr. Justice Belford, concurring in an order of reversal and remand, said: “I am fully aware that courts should be slow to justify their decisions on the ground of necessity, but I am equally conscious of the fact that they will betray their trust if, in the administration of law or in the expounding of constitutional principles, they shut their eyes and refuse to recognize those conditions of society which call into force and operation principles whose existence and recognition cannot be disregarded without bringing ruin on all. As has been said by another, the law is not a system marked by folly, based on bald sentences without reason; it is a grand code, founded upon the necessities of man, erected by mature judgment, gradually expanding in beneficence and wisdom as time progresses, and resulting with care the interest of society and civilization.” (p. 569) See also, Irwin v. Phillips, 5 Cal. 140, 63 Am.Dec. 113 (1855); Conger v. Weaver, 6 Cal. 548, 65 Am.Dec. 528 (1856); Merced Mining Co. v. Fremont, 7 Cal. 317, 68 Am. Dec. 262 (1857); Merritt & Bourne v. Judd & Byrne, 14 Cal. 59 (1859); Snow v. Abalos, 18 N.M. 681, 140 P. 1044 (1914); Water and Water Rights, Robert Emmet Clark, Editor, Sec. 19.5 (1956); Wiel, Water Rights in the Western States (3rd Ed.) 80. As above pointed out, there is in this state a strong public policy against waste. It hardly seems appropriate to say that in times of abundant water, we must nevertheless adopt a strict literal construction of statutes that were not designed for and hence in part are not suited to the regulation of rights in and to waters stored by governmental action when such course would deprive good faith users of water and allow the same to flow unused to the Gulf. These good faith users are before the court for the purpose of having their rights adjudicated. If it rests within the power and authority of the court to adjudicate such claims, relief should not be denied. In our opinion, equitable rights may be recognized because of the considerations above mentioned. We think classifications based roughly upon legal and equitable bases can be made effectively operative and that a 1.7 to 1 weighted priority plan will be substantially in accord with the trial court’s theory of the division of available waters. The trial court found, and such finding has support in the evidence, “that the amount of water which can be applied to beneficial use for agricultural purposes on the lands involved in this litigation is a maximum of 2.5 acre feet per acre per annum * * * to be measured at the point of diversion from the channel of the Rio Grande.” Considering the water as may be available to meet the irrigation needs of the area, we are in agreement with the trial court that a plan of weighted priorities will operate with less hardship than a system based upon a strict time priority basis. As stated by that court: “Under a strict priority allocation, the first priority acreage will receive all water flowing into the reservoir until its full quota would be received. * * * This procedure would result in some land receiving no water for an entire year; in fact records show that since construction of Falcon dam, there would be four years that no water would be received by any acreage other than that of the first priority. * * * Under the weighted allocation procedure, first priority acreage would receive less water than under a strict priority basis. The water not allocated to (the first priority acreage) would go to lower priority acreage. Under this procedure all land would receive water every year.” The trial court also found as a fact that the economy of the lower Rio Grande Valley would be served by the adoption of a weighted priority system. While there are imaginable circumstances under which strict priority would operate more beneficially than a “weighted priority” plan, we are in agreement with the court below, despite the recognized danger inherent in attempting to predict climatic, meteorological and weather conditions along the Rio Grande in future years. In times of severe drought,' public policy calling for efficient and effective use of water as opposed to waste and enforceable under the police power of the state, is available to ameliorate extreme conditions. Although, so far as we have been able to find, a system of weighted priorities has never been adopted by a court decree, the concept is not entirely new. Frank J. Trelease in his paper delivered before the 1954 Water Law Conference of the Univer- ‘ sity of Texas said (p. 212) : “Let us suppose a drought with stream flows dropping. Under the system of strict priority, what will happen ? Those irrigators with the junior priorities will be cut off from their water supply. Their crops will dry up. Individual ruin may culminate into desolation of an area; perhaps into depression.” See also, White and Wilson, The Flow and Underflow of Motl v. Boyd, The Problem, 9 Sw. L.J. 1, particularly the statements of Elwood Mead and S. C. Wiel, pp. 23-25. Undoubtedly periods of drought will occur along the Rio Grande and while courts have not been too successful in prescribing firm solutions to water problems based upon predictions of the future, we are of the opinion that a weighted system will in all probability entail less hardship in operation than would a plan of strict priority. Under the facts of the present case, we believe the needs of the situation may be best met by adopting two classes of weighted priorities and eliminating certain minor classifications adopted by the trial court. These, we designate as Class A and Class B. X. Class A (Legal) This class embraces those who have acquired a right to use waters of the Rio Grande by virtue of having complied with the appropriation statutes of the State or those whose rights have been recognized by the State. In this classification are the following: 1. Those holding under a legal certified filing. 2. Those holding a valid permit to appropriate water issued by the Board of Water Engineers, the predecessor of the Texas Water Rights Commission. 3. Those holding title to a valid appropriation right who are supplied with water under a contract with a water improvement district* or water control and improvement district. 4. Those owning or holding possessory rights to lands “adjoining or contiguous” to the canals of a predecessor private irrigation company or those holding posses-sory rights to lands which are not “adjoining or contiguous” to such canals but nevertheless have a right to be served with water under special conditions. From this classification, however, are excluded those holding claims against a private irrigation company which has been succeeded by a water improvement district rather than by a water control and improvement district. 5. Those whose rights have been specially recognized by the State. 6. Those holding such rights by reason of special situations and unusual circumstances hereinafter mentioned. It should be noted that under the above classification, all Class I and Class III (insofar as said Class I and Class III claims may have a statutory basis) are grouped with Class II and Class IV claimants and placed in a Class A category. Essentially this constitutes a grouping of the trial court’s classifications, and the fact that a party haying a trial court classification below Class I has not appealed from such award does not prevent his lands from being placed in a Class A classification by this grouping method. For example, Cameron County Water Improvement District No. Seventeen was awarded the right to irrigate 1,525 acres of land in TWC Tract No. C-50 by the trial court’s judgment and was given a Class II priority because such lands were covered by a legal permit issued after 1913. These Class II lands have been placed in the Class A priority group by this court. XI. Class B (Equitable) This class embraces those who have been making a good faith use of the waters of the Rio Grande for irrigation purposes prior to the institution of this suit but do not qualify as Class A users. The water districts embrace the greáter part of the land ownerships, large and small, lying within the delta area and those entitled in equity to a Class B priority are the owners of lands outside the boundaries of the various water improvement and water control and improvement districts. Many of the declarations relating to water appropriations under the 1895 Act describe or at least identify a greater area of land than that embraced within the boundaries of the districts which for the most part now own the appropriative rights secured under the 1895 procedure. Much of the land not within the districts but in the area sought to be irrigated, according to the appropriators’ declarations, borders upon the river or is in close proximity thereto. Such lands were subject to frequent overflows prior to the construction of flood control works in the Valley and for that reason, were excluded from the boundaries of the water improvement and water control and improvement districts when such districts were organized. As a result of flood control activities, including those connected with the Falcon project, much of the riverside area has been placed in cultivation at a comparatively recent date. Other tracts near the river have been under irrigation for a long period of time. For the most part, these tracts in the immediate vicinity of the river are comparatively small in area and their owners asserted riparian claims for irrigation purposes which were rejected in Valmont Plantations v. State of Texas, 163 Tex. 381, 355 S.W.2d 502 (1962); 346 S.W.2d 853 (Tex.Civ.App.1961). There are other water users whose lands are not within the municipal water districts or riparian to the Rio Grande. They have been securing water from the canals of such districts or by various means. It seems to have been a rather general custom for the municipal districts to furnish water to some lands lying outside their boundaries on a more or less permanent basis. Some of them operated in much the same way as did the private irrigation companies which preceded them. Although they sold water, they did not convey title to the water rights they held under their certified filings or permits. In certain instances, they did sell and convey appropriative rights and entered into contracts with the purchasers, often other districts, to pump and convey water to a point or place of delivery selected by the contracting parties. There apparently is no statutory authority vesting either a water improvement district or a water control and improvement district with authority to sell water generally to the owners of lands outside the boundaries of the district except as permitted by Article 7792 relating to water improvement districts' (Chapter 2, Title 128) and Article 7880-138 relating to water control and improvement districts (Chapter 3A, Title 128), which statutory enactments control the sale of surplus waters. Then, as hereinafter specifically discussed, a water control and .improvement district may assume contractual obligations of a predecessor irrigation corporation covering “adjoining or contiguous” lands or lands formerly served by the private irrigation company. In our opinion, if equitable claims are to be recognized at all, no valid distinction can be made between those claimants who relied upon an unfounded riparian claim and those who relied upon a claim based upon a contract to furnish water executed by a water improvement district or a water control and improvement district. XII. Special Cases As well over a thousand tracts of land are involved in this litigation and the owners thereof assert claims to the Rio Grande waters under a variety of circumstances, it would be impractical to notice all of them in detail. For illustrative purposes, we will discuss those situations which affect a substantial number of trac