Boquillas Land & Cattle Co. v. St. David Cooperative Commercial and Development Association

• Court: Arizona Supreme Court
• Writing for the Court: SLOAN, J.
• Citation: Boquillas Land & Cattle Co. v. St. David Cooperative Commercial and Development Association, 89 P. 504, 11 Ariz. 128 (Ariz. 1907)
• Decision Date: 22 March 1907
• Docket Number: Civil 988
• Parties: BOQUILLAS LAND AND CATTLE COMPANY, a Corporation, Plaintiff in Error, v. THE ST. DAVID COOPERATIVE COMMERCIAL AND DEVELOPMENT ASSOCIATION, a Corporation, et al., Defendants in Error

89 P. 504

11 Ariz. 128

BOQUILLAS LAND AND CATTLE COMPANY, a Corporation, Plaintiff in Error, v. THE ST. DAVID COOPERATIVE COMMERCIAL AND DEVELOPMENT ASSOCIATION, a Corporation, et al., Defendants in Error

Civil No. 988

Supreme Court of Arizona

March 22, 1907

ERROR to District Court, First Judicial District, in and for the County of Cochise. Fletcher M. Doan, Judge. Affirmed.

Affirmed sub nom. Boquillas Land and Cattle Co. v. Curtis, 213 U.S. 339, 53 L.Ed. 822.

The facts are stated in the opinion.

Eugene S. Ives, for Plaintiff in Error.

The so-called doctrine of appropriation or the acquiring of the right to the uses of waters by appropriation is wholly foreign to the common law and wholly inconsistent therewith. By the common law the appropriator could never be more than a trespasser, and could never acquire any rights by user, no matter for what length of time, as against the riparian owner. Lux v. Haggin, 69 Cal. 255, 10 P. 674. In some of the American authorities the common-law rights of riparian owner is held to include a reasonable use of water for purposes of irrigation, but such right must not substantially impair the rights of other riparian owners. Meng v. Coffey, 67 Neb. 500, 108 Am. St. Rep. 697 93 N.W. 713, 60 L.R.A. 910; Bathgate v. Irvine, 126 Cal. 135, 77 Am. St. Rep. 158, 58 P. 442. Article 5 of the Gadsden treaty provides that the provisions of the eighth ninth, sixteenth, and seventeenth articles of the treaty of Guadalupe Hidalgo shall apply to all rights of persons and property within the territory ceded. Rev. Stats. 1901. Article 8 of the treaty of Guadalupe Hidalgo provides that rights of property belonging to Mexicans in the ceded territory shall be inviolable. Under the provisions of section 8 of act of Congress of March 3, 1901, establishing the court of private land claims, title to Mexican land grants shall be confirmed whenever a title is shown to exist and the issuance of a patent to the person in whom such grant is confirmed. The effect of such provision as in the above-named treaties has been construed by the United States supreme court. Under these decisions the effect of a patent issued by the proper officers of the United States to lands embraced within a confirmed Mexican land grant operates not only as a quitclaim or conveyance of whatever interest the United States may have in the lands, but also as a confirmation and determination that title existed under such grant at the time of the acquisition of the territory. The title thus confirmed is the title as it existed at the time of the cession by Mexico, and conclusively determines its existence both as against the United States and as against third persons not showing a superior right. The proceedings are but a confirmation of a title already existing. Beard v. Federy, 3 Wall. 478, 18 L.Ed. 88; Knight v United Land Assn., 142 U.S. 161, 35 L.Ed. 974; Herrick v. Boquillas L. & C. Co., 200 U.S. 96, 26 S.Ct. 192, 50 L.Ed. 388, involving the very lands described in the patent mentioned in the findings of the court in this case. It follows, therefore, that the plaintiff in error and its predecessors in interest have been the owners of lands described in the patent and in the findings of the court in this case, since the date of the grant from the government of Sonora, and that the title now claimed existed at that time and at the date of the cession by Mexico under the Gadsden treaty, and ever since, and whatever property rights attached to such ownership at any time since the date of the cession are inviolable, and whatever may have been the subsequent legislation or the rights of parties under subsequently acquired titles, the rights of the plaintiff in error remain as they were prior to such legislation. It is well settled that riparian rights once attaching or becoming a part of lands are property rights, and cannot be taken away, and can only be taken for a public use by the exercise of eminent domain. Crawford v. Hathaway, 67 Neb. 325, 108 Am St. Rep. 647, 93 N.W. 781, 60 L.R.A. 889. And even a state constitution cannot take away or impair riparian rights previously vested. Bigelow v. Draper, 6 N.D. 152, 69 N.W. 570, 573. Neither the Bill of Rights nor the provisions in Howell's Code are to be construed as repugnant to the common-law doctrine of riparian rights, and which plaintiff in error contends was adopted as the law of this territory by the provision in Howell's Code adopting the common law. The prohibition of exclusive use in article 22, Bill of Rights, militates rather against the doctrine of appropriation or rights under priority of appropriation than otherwise; and as the rights of riparian proprietors include also the reasonable use of water for irrigation upon the riparian lands, it will be seen that article 22 is consistent and harmonious with the common-law doctrine on that subject. Long on Irrigation, sec. 9.

Even though the doctrine of appropriation prevailed to some extent in this territory, it could not affect the rights of the riparian proprietors claiming under Mexican grants. Lux v. Haggin, 69 Cal. 255, 10 P. 674. The subject of riparian rights under Mexican grants is discussed in Black's Pomeroy on Water Rights, section 43, in which the author, while reasoning that the rights of an owner of a title by grant from the Mexican government do not differ in any respect from those held by any other proprietor, who derives his title from the United States, concludes that the question of priority between such a grantee and a person who has appropriated the waters of a stream before his grant was confirmed by the United States authorities must depend upon the legal effect given to the confirmation. If the confirmation relates back to the date of the treaty, so that the grantee is regarded as deriving his title directly and holding it continuously from the Mexican government, the rights of such grantee are superior to those of the appropriator; otherwise if the confirmation operates only from its own date.

Pickett & Bowman, and Ben Goodrich, for Defendants in Error. (Authorities cited by defendant in error well taken, but cited and fully covered and to same effect in opinion.)

OPINION

SLOAN, J.

-- The plaintiff in error is the owner of a tract of land in Cochise county granted by the Republic of Mexico to Ignacio Gonzales and Nepomeceno Felix in the year 1833. The title to this tract of land was confirmed to the predecessors in interest of the plaintiff in error and successors in interest to the original grantees, by the court of private land claims, and, under the judgment of confirmance of said land court, the patent of the United States issued to the predecessors in interest of the plaintiff in error in December, 1900. The San Pedro river runs through the land in a northerly direction. In 1877 the defendants in error, and certain other persons, entered upon the land of the plaintiff in error, constructed a dam across the San Pedro river, and diverted the water therefrom by means of a canal over and through portions of said land. The land irrigated by means of said canal in part constituted a portion of said land. The remainder, consisting of one hundred and twenty acres, lying north of the northern boundary of the land grant, is owned by the defendants in error. In the month of December, 1904, the defendants in error undertook to construct a new dam in place of the old one, which had been destroyed by a flood, and to rebuild portions of the ditch upon the land of plaintiff in error. No use of the water appropriated and taken from the San Pedro river by the defendants in error had been made by the plaintiff in error or its predecessors in interest prior to 1877. The latter began this action to restrain the defendants in error from entering upon its land for the purpose of constructing said dam and ditch and from diverting water from the San Pedro river off the said lands. After a trial on the merits, the court below gave judgment for the defendants in error. This judgment is attacked by the plaintiff in error upon the ground that the court, in recognizing the right of prior appropriation in the defendants in error, erred for two reasons: First, that by certain legislation of the territory of Arizona the common-law doctrine of riparian rights was at one time in force during the ownership of the land by the predecessors in interest of the plaintiff in error, and that such rights, having once attached, could not be taken away by subsequent legislation; second, that the plaintiff in error, claiming title under a Mexican land grant, subsequently confirmed, possesses all the right to the use of the water flowing through its land which its predecessors in interest had prior to the cession of that part of the territory lying south of the Gila river under the Cadsden Purchase, and that the doctrine of appropriation or priority of right by virtue of priority of appropriation was not in force under the laws of Mexico at the time of the cession.

The questions thus presented are historical as well as legal, and are of great interest. We will consider them in the order stated. As is well known, after the treaty of Guadalupe Hidalgo and the organization of the territory of New Mexico and the subsequent cession under the Gadsden Purchase, the territory included within the present boundaries of Arizona constituted a part of New Mexico. The act of Congress creating the territory of Arizona continued in force the statutes of New Mexico until the legislature of the new territory should adopt its own laws. The first legislature of the new territory met in 1864. It adopted among its first acts, what is historically known as the Howell Code. One of the provisions of the Howell Code read as follows: "The common law of England, so far as it...