Agua Pura Co. of Las Vegas v. Mayor

• Citation: 60 P. 208, 10 N.M. 6
• Case Date: January 16, 1900
• Court: Supreme Court of New Mexico

10 N.M. 6

60 P. 208

AGUA PURA CO. OF LAS VEGAS

v.MAYOR, ETC., OF CITY OF LAS VEGAS.

Supreme Court of the Territory of New Mexico.

Jan. 16, 1900.

Appeal from district court, San Miguel county; before Justice Thomas Smith.

Bill by the Agua Pura Company of Las Vegas against the mayor and board of aldermen of the city of Las Vegas. From a decree for plaintiff, defendant appeals. Affirmed.

The Act of March 18, 1897, authorizing any city or town organized and existing under the laws of the Territory of New Mexico to regulate by resolution or ordinance, the prices to be charged for water to such city or town, contained the proviso that said act should not affect any contract then existing. By reason of said proviso said act can not and does not affect the contract between plaintiff and the board of county commissioners of the county of San Miguel.

W. B. Bunker, E. V. Long, Wm. Hayden, and Veeder & Veeder, for appellants.

A. A. Jones and Frank Springer, for appellee.

PARKER, J.

This is an appeal from the judgment of the district court of the Fourth judicial district, granting and making perpetual and injunction against appellants, restraining the enforcement of certain ordinances passed by them. The case was heard and determined below upon bill, answer, and cross bill, and demurrers thereto; and, from the allegations and admissions in the pleadings, it appears that the facts of the case are as follows:

The Agua Pura Company, plaintiff below, and appellee in this court, was duly incorporated under the laws of the territory of New Mexico, in the year 1880, for the objects and purposes, among other things, of the storage of water in lakes, reservoirs, and the digging of wells in the county of San Miguel, and the sale, distribution, and disposition of water in said county for the purposes of irrigation, manufacturing, and for domestic, fire service, municipal, economic, and industrial purposes generally. Said company, under its articles of incorporation, was authorized to sue and be sued, to hold real and personal property, and to carry on the business of supplying, distributing, and selling water through mains and pipes. Shortly after its incorporation, to wit, on December 20, 1880 a contract was made between the said Agua Pura Company and the board of county commissioners of the county of San Miguel, containing the following provisions: “That from and after the twentieth day of December, A. D. one thousand eight hundred and eighty, until the full and complete expiration of fifty (50) years, the said the Agua Pura Company shall have, and is hereby granted, the privilege and right to lay water main and pipe near to and along the course of the Gallinas, a distance of six miles from its northern limits, to the town of Las Vegas, if necessary to procure a sufficient supply of pure water; to erect, maintain, and operate all buildings, machinery, and other works which are or may become necessary for the purposes contemplated in their organization, to wit: For the purpose of storage of water in lakes, reservoirs, and the digging of wells in the county of San Miguel; the sale, distribution, and disposition of water in said county for the purpose of irrigation, manufacturing, and for domestic, fire service, municipal, economic, and industrial purposes generally; the sale, disposition, granting, leasing, and transfer of water rights and water privileges; the cutting, storage, sale, distribution, and disposition of ice; for the purchase and acquiring of real estate, machinery, and other property, real, personal, or mixed. For the business and purposes aforesaid, and for the operation and running of the machinery connected therewith, to levy, charge, collect rents for any of the privileges herein acquired, and generally to do and perform all other things necessary or requisite to carry into effect the purposes and objects aforesaid, and as are provided by law, within the limits of the town of Las Vegas and its suburbs, county and territory aforesaid, to lay water mains and pipes under and along any and all the streets of said town and its suburbs for the purpose of distributing water throughout said town and its suburbs, and to sell said water to all persons, bodies, corporations, societies, and firms desiring to purchase and use the same. That the said company shall have, and it is hereby granted, the privilege and license to sell and dispose of, as it may deem fit, the water, ice, etc., as above described, and, generally, that the said company shall have all the rights and privileges, including the right to buy, hold, sell, and convey such real estate as is necessary for the prosecution of their business, subject to the restrictions of these articles and the said order, necessary for the proper and successful prosecution of their business as above described in the town of Las Vegas and its suburbs, county of San Miguel, and territory of New Mexico. And for and in consideration of the permission and the foregoing promises, covenants, and agreements entered into on the part of the board of county commissioners, the said Agua Pura Company, party of the second part, does hereby promise, covenant and agree to and with the said board of county commissioners, party of the first part, as follows, to wit: That the said company will not charge the said town of Las Vegas, nor any person, body, corporation, society, or firm, more than the rates usually charged and paid in other cities in the United States, under like conditions and circumstances, for water, and like and similar facilities for construction, operation, and sale. That within six months from the date hereof the said company will commence actual operation within said town of Las Vegas for the construction of the necessary works for the purpose of providing a water supply. That on or before the thirty-first day of October, A. D. 1881, the said company will have at least one mile or more of distributing water main or pipe laid in the said town of Las Vegas or its suburbs, ready for use, from the point or place from whence said water supply is distributed, and will be ready to furnish water along the line of said mains and pipes to the town of Las Vegas, and to all persons, bodies, corporations, firms, or societies desiring to purchase and use the same; that within a reasonable time thereafter the said company will lay pipe, distribute and sell water, on any and all the streets, respectively, of said town of Las Vegas, so far as there may be any reasonable demand for such water, on said streets, or any of them. And that the said company wills at all times furnish a full and sufficient supply of good water, and pure as the natural sources from which it must be drawn will permit, to meet the reasonable demands of said town and its suburbs, and of the citizens thereof, on the conditions herein stated, unless prevented temporarily by unavoidable accidents, or causes beyond their control.”

Under said contract the plaintiff proceeded to and did construct, for the purposes in said contract mentioned, a system of waterworks, including dams, reservoirs, a main pipe line from a point about six miles north of the town of Las Vegas to and into said town, and also distributing mains and pipes throughout what was then the town of Las Vegas and its suburbs, in the county of San Miguel aforesaid, and has since then, from time to time, made additions to said plant. Plaintiff has ever since the time fixed by said contract continuously maintained and operated said water plant, and is now so operating the same; and in the process of such construction and operation it has laid and maintained its mains and pipes near to and along the course of the Gallinas river, and under and along the streets of said town of Las Vegas and its suburbs. Since the year 1881 plaintiff has continuously engaged in and carried on the sale, distribution, and disposition of water, supplied by and through its pipes and mains in the said town of Las Vegas and its suburbs, for the domestic, municipal, and other purposes in said contract specified. Plaintiff has sold such water for such charges as it saw fit. Plaintiff has adopted and fixed a schedule of the rents and prices charged for the water so supplied by it. Said contract with the board of county commissioners was made before the municipal corporation now known as the “City of Las Vegas” was organized or incorporated, and at a time when all of the territory now embraced in said city and in the then town of Las Vegas and its suburbs was under the municipal control of the said board of county commissioners of San Miguel county, there being no town or city government within any part of such territory. Long subsequent to the making of said contract, and the construction by plaintiff of its dams, reservoirs, main pipe line, and principal distributing pipe, a portion of the territory which at the date of said contract was known as the “Town of Las Vegas” was incorporated into a town under the name and style of the “Town of East Las Vegas,” and afterwards the said town of East Las Vegas was erected into the city of East Las Vegas, and afterwards the name of the said city was changed to the “City of Las Vegas.” Ever since 1881 plaintiff has been supplying water for fire service and other municipal purposes for the territory formerly embraced in the town of Las Vegas and its suburbs, under a contract therefor with the said board of county commissioners, and ever since the organization of said town and city of East Las Vegas it has been supplying water for additional fire service to said town and city under a contract with the trustees and proper municipal authorities of said town and city. On June 17, 1897, the defendants, constituting the city council of the city of Las Vegas, claiming to act under and by virtue of the power conferred by an act of the 32d legislative assembly of the territory of New Mexico, approved March 18, 1897, entitled “An act...