Bliss, State ex rel. v. Dority, 5296

• Decision Date: 22 December 1950
• Docket Number: No. 5296,5296
• Citation: 1950 NMSC 66,55 N.M. 12,225 P.2d 1007
• Parties: STATE ex rel. BLISS v. DORITY et al.
• Court: New Mexico Supreme Court

Page 1007

225 P.2d 1007

55 N.M. 12

STATE ex rel. BLISS v. DORITY et al.

No. 5296.

Supreme Court of New Mexico.

Dec. 22, 1950.

Caswell S. Neal, Carlsbad, for appellants.

Joseph O. Walton, Special Asst. Atty. Gen., Atwood, Malone & Campbell, Roswell, for appellee.

BRICE, Chief Justice.

The State of New Mexico, upon relation of its State Engineer John H. Bliss, brought separate suits against Bert Troy Dority, Loman Wiley and S. A. Lanning, Jr., the purpose of which was to enjoin the respective defendants for unlawfully using for irrigating lands, waters drawn from what is known as the Roswell Artesian Basin, and the valley fill above it, which plaintiff asserts under Ch. 131, N.M.L. 1931, 1941 Comp. Sec. 77-1101 et seq., are subject to appropriation as provided therein.

There three suits were consolidated in the district court for all purposes and are here on appeal from a decree of the district court enjoining each of the defendants from using unappropriated water for the irrigation of land, in violation of the New Mexico statutes.

Defendants' lands are situated in Chaves County, New Mexico, and are located within the external boundaries of two underground water sources, one of which is an artesian basin lying between confining strata, the waters of which are commonly referred to as artesian water; and the other, plaintiff asserts, is an underground reservoir or lake in the valley fill overlying such artesian basin, the waters of which are commonly referred to as shallow ground water. About 45,000 acres are irrigated from shallow ground water and 55,000 acres from artesian water.

Each of the defendants, Lanning and Dority, is the owner of a permit authorizing him to use water for irrigating a portion of his lands; but the plaintiff asserts that the defendant Dority is irrigating 96.7 acres of land illegally, in that he has not been granted the right to so use the water; that the defendant Wiley was in like manner illegally using water to irrigate 48.7 acres of land; and the defendant Lanning was illegally using water to irrigate 120 acres. The defendants admit that they have been using, and will continue to use, the water without a permit unless enjoined from so doing. They deny that their use of it is in violation of law. The principal contention is that the New Mexico statutes providing for the appropriation of sub-surface water is unconstitutional upon several grounds stated.

The statutes of New Mexico declaring that the artesian and shallow ground water from which defendants obtained the water to irrigate their land belongs to the public and providing for their appropriation for beneficial use, are as follows:

'The waters of underground streams, channels, artesian basins, reservoirs, or lakes, having reasonably ascertainable boundaries, are hereby declared to be public waters and to belong to the public and to be subject to appropriation for beneficial use.' See. 77-1101, N.M.Sts.1941.

'Beneficial use is the basis, the measure and the limit to the right to the use of the waters described in this act.' Sec. 77-1102, N.M.Sts.1941.

'Any person, firm or corporation desiring to appropriate for irrigation or industrial uses any of the waters described in this act shall make application to the state engineer in a form to be prescribed by him in which said applicant shall designate the particular underground stream, channel, artesian basin, reservoir or lake from which water is proposed to be appropriated, the beneficial use to which it is proposed to apply such water, the location of the proposed well, the name of the owner of the land on which such well will be located, the amount of water applied for, the use for which it is desired and if the proposed use is irrigation, the description of the land to be irrigated and the name of the power thereof. (Then follows a provision for the publication of notice of any objections to granting the permit, a provision that such application should be granted if there are any waters subject to appropriation, and the manner of hearing protests on such application, if any.)' Sec. 77-1103, N.M.Sts.1941.

'Existing water rights based upon application to beneficial use are hereby recognized. Nothing herein contained is intended to impair the same or to disturb the priorities thereof.' Sec. 77-1104, N.M.Sts.1941.

'Any person, firm or corporation claiming to be the owner of a vested water right from any of the underground sources in this act described, by application of waters therefrom to beneficial use, may make and file in the office of the state engineer a declaration in a form to be prescribed by the state engineer setting forth the beneficial use to which said water has been applied, the date of first application to beneficial use, the continuity thereof, the location of the well and if such water has been used for irrigation purposes, the description of the land upon which such water has been so used and the name of the owner thereof. (Then follows provision for verification of the declaration, and the recording thereof.)' Sec. 77-1105, N.M.Sts.1941.

'Declarations heretofore filed in substantial compliance with section 5 (Sec. 77-1105) hereof shall be recognized as of the same force and effect as if filed after the taking effect of this act.' Sec. 77-1106, N.M.Sts. 1941.

'The decision of the state engineer shall be final in all cases unless appeal be taken to the district court within thirty (30) days after his decision as provided by section 151-173 of the 1929 New Mexico Statutes Annotated (Sec. 77-601).' Sec. 77-1110, N.M.Sts.1941.

'The state engineer is hereby given the power and it is made his duty to formulate rules and regulations for the purpose of carrying out the provisions of act, which rules and regulations shall be printed and made available for distribution to all applicants.' Sec. 77-1111, N.M.Sts. 1941.

'Any person using or appropriating water without a permit, contrary to the provisions of section 1 of chapter 70, of the New Mexico Session Laws of 1943, designated as section 77-1103 of the New Mexico Statutes, 1941, Annotated; or who changes the location of his well or use of the water except as provided and permitted by section 77-1107 of said New Mexico Statutes, 1941, Annotated; or who appropriates to his own use without a permit from the state engineer forfeited water or water rights under the provisions of section 77-1108 of said New Mexico Statutes, 1941, Annotated, shall be guilty of a misdemeanor and, on conviction thereof in any court of competent jurisdiction, shall be punished * * *.' Laws 1943, Ch. 70, Sec. 2; Laws 1947, Ch. 21, Sec. 1, Sec. 77-1112, N.M.Sts.1941.

The appellants' first contention is stated as follows: 'The State Engineer of New Mexico has no right to maintain these actions by way of injunction against these defendants, such right not having been conferred upon him by law, and the State Engineer has not been given authority by law to maintain such an action in the name of the state upon the relation of the State Engineer.'

These suits were styled 'The State of New Mexico on the Relation of John H. Bliss, State Engineer' as plaintiff. The contention is that this official was not authorized by any law to bring these suits.

The answer is that the suits were not brought by the State Engineer, but by the Attorney General of the state acting through his assistant, and by special counsel employed in the cases.

If there is an error in that part of the title reading, 'On the Relation of John H. Bliss, State Engineer' then it will be treated as surplusage.

The public waters of this state are owned by the state as trustee for the people, Murphy v. Kerr, D.C., 296 F. 536; and it is authorized to institute suits to protect the public waters against unlawful use, or to bring any other action whether authorized by any particular statute, if required by its pecuniary interests or for the general public welfare, 49 A. J., 'States, Territories & Dependencies', Sec. 80. The Attorney General is given specific authority 'to prosecute and defend all causes in the Supreme Court in which the state is a party or interested. To prosecute and defend in any other court or tribunal, all actions and proceedings, civil or criminal, in which the state may be a party or interested, when, in his judgment, the interest of the state requires such action, or when requested to do so by the governor.' Sec. 3-302, N.M.Sts.1941.

The State Engineer has no personal interest in this suit, and it is brought by the Attorney General in behalf of the state alone, as its pleadings indicate. The words 'on the relation of John H. Bliss, State Engineer' will be treated as surplusage if necessary. People ex rel. Clark v. Milk Producers Ass'n, 60 Cal.App. 439, 212 P. 957; People ex rel. Warfield v. Sutter Street Ry. Co., 117 Cal. 604, 49 P. 736. The district court recognized the State of New Mexico as the party plaintiff, entitled to prosecute these suits, and so we conclude.

Appellants' Point II is as follows: 'State Engineer has no jurisdiction over underground waters under 1907 water code and no authority has been granted him to declare or define underground water basin or regulate issuance of permits in such district until such time as water area has been defined and determined by adjudication suit brought by state engineer under statutes relating to adjudication of water rights.'

We will assume for the purposes of this case that the 1907 water code, Ch. 49, N.M.L. 1907, and amendments, has no application to underground waters, but see El Paso & R. I. Ry. Co., 36 N.M. 94, 8 P.2d 1064. The Act of 1931 provides that 'The waters of underground streams, channels, artesian basins, reservoirs or lakes, having reasonably ascertainable boundaries, are hereby declared to be public waters and to belong to the public, etc.' 1941 Comp. Sec. 77-1101. It is these waters over which the State Engineer is given jurisdiction. There is no provision in the law...