Albuquerque Land & Irrigation Co. v. Gutierrez

• Decision Date: 03 May 1900
• Citation: 61 P. 357,10 N.M. 177
• Court: New Mexico Supreme Court
• Parties: ALBUQUERQUE LAND & IRRIGATION CO.v.GUTIERREZ et al.

10 N.M. 177

61 P. 357

ALBUQUERQUE LAND & IRRIGATION CO.

v.GUTIERREZ et al.

Supreme Court of the Territory of New Mexico.

May 3, 1900.

Appeal from district court, Santa Fé county; before Justice John R. McFie.

Action by the Albuquerque Land & Irrigation Company against Thomas C. Gutierrez and others to enjoin interference with a preliminary survey by plaintiff for the construction of irrigation canals and reservoirs. Judgment for plaintiff, and defendants appeal. Affirmed.

Companies for irrigation purposes have the right to organize under Laws 1887, c. 12, and exercise the powers conferred thereby to divert surplus and unappropriated water of a natural stream, notwithstanding the possibility of failure of water supply during a few months of exceptional years.

Neill B. Field, for appellants.

Childers & Dobson, for appellee.

MILLS, C. J.

The facts necessary to an understanding of this case are fully stated in the able opinion rendered by the court below, which is a part of the record in this case, and it is not necessary to restate them here. Two questions are to be determined in this case: First. Can a company lawfully incorporated under chapter 12 of the Acts of 1887 (sections 468-493, Comp. Laws 1897) go upon the lands of private persons for the purpose of making a preliminary survey, and acquire the right of way through such lands by the exercise of the right of eminent domain under the terms of said act, unless it is shown that there is a surplus of water in the stream from which it is proposed to divert water, unappropriated and subject to diversion and appropriation? Second. Can the company organized under such act exercise the powers granted thereby, unless it is itself the owner of the lands to be irrigated by the water to be so diverted, or have been previously employed by the owners of such land to divert water for their use? As to the first proposition, it is sufficient to say that the court below has found as a fact that there is a surplus of water in the Rio Grande subject to appropriation, and that from said river the appellees proposed to divert, carry, and distribute the same. There is ample evidence to sustain the findings of the court below, and it is a well-settled proposition that this court cannot disturb such findings. It is undoubtedly true that the diversion and distribution of water for irrigation and other domestic purposes in New Mexico, and other Western states where irrigation is necessary, is a public purpose. This has been held by the supreme court of the United States in the case of irrigation Dist. v. Bradley, 164 U. S. 112, 17 Sup. Ct. 56, 41 L. Ed. 369. It seems to us to be equally well settled that it is not necessary that the company diverting, carrying, delivering, and distributing water for such purpose shall be itself a consumer, provided that the water, when so carried and distributed, shall, within a reasonable time, be applied to a beneficial use. The able opinion of the court below discusses these propositions so fully that we adopt its opinion, and make it the opinion of this court, as follows:

“This cause was brought into this court by change of venue from the county of Bernalillo, and has been submitted upon bill, answer, and replication, cross bill, answer, and replication, oral and documentary evidence, and arguments of counsel. To avoid unnecessary repetition, let it be understood that, wherever the word ‘complainant’ or ‘plaintiff’ is used, it means cross defendant, as well, and wherever ‘defendant’ is used it means cross plaintiff or complainant, as well, as the issues joined are embodied in both the original and cross suit, and they will be considered together.

“The proceedings had in these causes before his honor, Judge Crumpacker, presiding judge of the Second judicial district, have restricted somewhat the issues before this court, inasmuch as this court will not presume to review the action of the court of the Second judicial district, whose jurisdiction is co-extensive with that of this court. The following proceedings were had in the Second judicial district court before the venue was changed to this court: Temporary injunction was granted upon complainant's bill January 17, 1898, and the defendants were ordered to show cause why the injunction should not be continued on the 25th day of January, 1898. Defendants filed answer, cross complaint, and affidavits January 25, 1898, and the cause was heard by the court, and taken under advisement. On the 8th day of February, 1898, the court rendered his opinion in favor of the complainant in the bill, and entered an order continuing the injunction in force against the defendants until the further order of the court, and denying the injunction prayed for by the defendants in their cross bill. On the 19th day of February, 1898, the plaintiff in the original bill filed demurrer to the answer and cross complaint of the defendants, but, upon hearing, the court overruled the demurrer by an order entered March 12, 1898. The cross defendants filed answer to the cross complaint March 14, 1898, and, the necessary replications being filed, the issues were fully made up on the complaint and cross complaint. On the 18th of May, affidavit and motion for change of venue were filed, and upon the same day objections were filed to the granting of the motion, but the court sustained the motion, and ordered the venue changed to the First judicial district. It will thus be seen that before the cause came into this court his honor, Judge Crumpacker, had not only granted the injunction prayed for in the original bill, but ordered same continued in force until further order of the court; that the injunction prayed for by the defendants in their cross bill had been denied; and that the demurrer of the complainants to the new matter in the answer of the defendants and to their cross complaint had been overruled. Therefore all these matters have been eliminated, and will not be reviewed here. The entire case is before this court on its merits, but the sole question to be determined is whether or not, upon the pleadings and proofs now before the court, either of the parties are entitled to a perpetual injunction, and, if so, which. To determine this, the court must decide whether or not the Albuquerque Land & Irrigation Company have a legal right to construct canals, ditches, or pipe lines authorized by their charter, and whether or not they have the right to enter upon, examine, and survey, and which practically involves the right to condemn and excavate, so much of the land of private owners along the line of their proposed canals or ditches as may be necessary for such purpose. If complainants have this right under the law, then it follows that the defendants had no legal right to interfere with or obstruct them in the pursuit of this lawful purpose. On the other hand, if the complainant had not such a legal right, the cross complainants had a right to prevent the company from attempting to exercise the right of eminent domain upon their lands along the proposed canal. Many questions are suggested by the pleadings that I do not deemit necessary or proper to consider in determining this case. Indeed, the proofs are not sufficiently specific to enable the court to do so. I apprehend that the sole reason why the court of the Second judicial district did not award the complainants a perpetual writ of injunction was because the court was of the opinion that the main question in the case, viz. whether or not there was surplus water in the river that the complainants would have a right to conduct through their proposed canal for the purpose of irrigation, or for some other beneficial use, should be determined upon proof, and not upon bill, answer, and affidavits. That counsel on both sides so understood the issue is plain from the nature of the oral and documentary evidence taken at the hearing. The evidence taken on behalf of the complainant tended to prove that there was surplus water in the Rio Grande at the point where the proposed canal was to be taken out; and the evidence taken on the part of the defendants, to show that all of the water of the river had been appropriated, and that there was no surplus water. Of course, there was some proof as to other matters, but this was the main controversy as shown by the evidence. Furthermore, in my opinion, the nature of the case, as well as the law applicable thereto, makes the matter of surplus water the controlling question.

“In 1887 the legislature of this territory passed an act providing for the formation of companies for the purpose of constructing irrigation and other canals, and the improvement and colonization of lands. Section 1, c. 12, Laws 1887, is as follows: ‘Any five persons who may desire to form a company for the purpose of constructing and maintaining reservoirs and canals, or ditches and pipe lines, for the purpose of irrigation, mining, manufacturing, domestic and other public uses, including cities and towns, and for the purpose of colonization and improvement of lands in connection therewith; for either or both of said objects, either jointly or separately, shall make and sign articles of incorporation, which shall be acknowledged before the secretary of the territory, or some other person authorized by law to take the acknowledgment of conveyances of real estate, and when so acknowledged such articles shall be filed with such secretary.’ That the complainant company was incorporated under this act is admitted by the defendants in their answer. Section 2 provides, in paragraph 2, that ‘the purpose or purposes for which said company is formed; and if the object be to construct reservoirs and canals or ditches and pipe lines for any of the purposes herein specified; the beginning point and terminus of the main line of such canals and ditches and pipe lines; and the general course, direction and length thereof shall be stated.’ The articles...