Boquillas Land Cattle Company v. Curtis

• Decision Date: 19 April 1909
• Docket Number: No. 133,133
• Citation: 213 U.S. 339,53 L.Ed. 822,29 S.Ct. 493
• Parties: BOQUILLAS LAND & CATTLE COMPANY, Appt., v. J. N. CURTIS, Samuel C. Curtis, Lyman Curtis, and John Summers
• Court: U.S. Supreme Court

213 U.S. 339

29 S.Ct. 493

53 L.Ed. 822

BOQUILLAS LAND & CATTLE COMPANY, Appt.,

v J. N. CURTIS, Samuel C. Curtis, Lyman Curtis, and John Summers.

No. 133.

Argued and submitted April 7, 1909.

Decided April 19, 1909.

Mr. Eugene S. Ives for appellant.

[Argument of Counsel from pages 340-342 intentionally omitted] Messrs. H. L. Pickett and Ben. Goodrich for appellees.

[Argument of Counsel from page 342 intentionally omitted]

Mr. Justice Holmes delivered the opinion of the court:

This is a bill in equity, brought by the appellant to prevent the defendants from withdrawing water from the San Pedro river, and from building for that purpose a dam and ditch upon and through the plaintiff's land. The plaintiff owns a tract extending on both sides of the river for about 14 1/2 miles and reaching back from the river for a mile and one-eighth on each side. In derives its title from a grant of the state of Sonora in 1833, confirmed by a decree of the court of private land claims on February 14, 1899, and a patent from the United States in pursuance of the decree, dated December 14, 1900. By reason of disputes before the date of the patent and wrongful disputes since, the plaintiff has not made actual use of all the waters of the river, although they are not sufficient to irrigate all the plaintiff's land that admits of irrigation. It has constructed no dams, canals, or the like, and has not taken the water except for watering stock and other similar uses of it in its natural flow. The defendants threaten and intend to build a dam, as alleged, in place of one built in 1903, but washed out, and to build and rebuild a ditch through land of the plaintiff to another ditch already established, and to divert the water through the same to land of theirs on the north. They set up no title, except that they have been the first to appropriate the water. The plaintiff claims as riparian owner, and argues that, as such, it has a right that cannot to taken from it by simple appropriation. The territorial court of first instance and the supreme court dismissed the bill (89 Pac. 504), and the plaintiff appealed to this court.

It is not denied that what is called the common-law doctrine of riparian water rights does not obtain in Arizona at the present day (Arizona Rev. Stat. 1887, § 3198), but the plaintiff contends that it had acquired such rights before that statutory declaration, and that it cannot be deprived of them now. So far as the claim is rested on the original grant and the Mexican law, it may be disposed of in a few words, without going into all the questions that would have to be answered before an opposite conclusion could be reached. 'Whatever may have been the general law throughout the Republic of Mexico on the subject of water, it is reasonably certain that, in the state of Sonora, the doctrine of appropriation, as now recognized, was to some extent in force by custom. In this territory irrigation was practised in the Santa Cruz valley prior to the cession, and it is well known the right of appropriation without regard to the riparian character of the lands was there in force probably from the time when the Spaniards first settled in the valley. Our statutes, as well as those of New Mexico, seem to have had their origin in the Mexican law as modified by custom.' This is the statement of the territorial court, and we know nothing to control it. It is not met by arguments as to the general character of Mexican law, or by inference from the situation and nature of the grant. The same doctrine seems to be implied by the Howell Code, chap. 55, § 25, which we shall refer to again.

The plaintiff draws another argument from the effect of the United States patent. It contends that the patent not only confirms the Mexican title, but releases that of the United States (Beard v. Federy, 3 Wall. 478, 491, 18 L. ed. 88, 92), and that, by the grant from the United States, it gained rights as a riparian proprietor that could not be displaced by a subsequent attempt to appropriate the water (Sturr v. Beck, 133 U. S. 541, 33 L. ed. 761, 10 Sup. Ct. Rep. 350). But, while it is true that in Beard v. Federy, supra, Mr. Justice Field calls such a patent a quitclaim, we think it rather should be described as a confirmation in a strict sense. 'Confirmation is the approbation or assent to an estate already created, which, as far as is in the confirmer's power, makes it good and valid; so that the confirmation doth not regularly create an estate; but yet such words may be mingled in the confirmation, as may create and enlarge an estate; but that is by the force of such words that are foreign to the business of confirmation.' Gilbert, Tenures, 75. It is not to be understood that when the United States executes a document on the footing of an earlier grant by a former sovereign, it intends or purports to enlarge the grant. The statute under which the Mexican title was decided to be good speaks of confirmation throughout, and, in the most pertinent passage, directing a patent to be issued, says that it shall be issued 'to the confirmee.' Act of March 3, 1891, chap. 539, § 10, 26 Stat. at L. 854, 859, U. S. Comp. Stat. 1901, pp. 765, 771. It would be possible, perhaps, to argue to the contrary from provisions in §§ 8 and 13, that the confirmation shall only work a release of title by the United States, but we are satisfied that the true intent of the statute and the reason of the thing are as we have said.

The opinion that we have expressed makes it unnecessary to decide whether lands in the arid regions, patented after the act of March 3, 1877, chap. 107, 19 Stat. at L. 377, U. S. Comp. Stat. 1901, p. 1548, are not accepted subject to the rule that priority of appropriation gives priority of right by virtue of that act, construed with Rev. Stat. § 2339, U. S. Comp. Stat. 1901, p. 1437. The supreme court of Oregon has rendered a decision to that effect on plausible grounds. Hough v. Porter (Or.) 98 Pac. 1083. See further, act of March 3, 1891, chap. 561, § 18, 26 Stat. at L 1101, U. S. Comp. Stat. 1901, p. 1570; United States v. Rio Grande Dam & Irrig. Co. 174 U. S. 690, 704-706, 43 L. ed. 1136, 1142, 1143, 19 Sup. Ct. Rep. 770; Gutierres v. Albuquerque Land & Irrig. Co. 188 U. S. 545, 553, 47 L. ed. 588, 592, 23 Sup. Ct. Rep. 338. So it is unnecessary to consider how far, if at all, the defendants represent an appropriation of the water before the patent was granted. For that reason we have not set forth the details found by the court below as to the dams, ditches, and use of water, going back to 1877.

But, perhaps, the main contention of the plaintiff is based on the legislation of the territory, and especially on the Howell Code of 1864, chap. 61, § 7, as follows: 'The common law of England, so far as it is not...