Cartwright v. Public Service Co. of N.M., 6172

• Decision Date: 12 December 1958
• Docket Number: No. 6172,6172
• Citation: 343 P.2d 654,66 N.M. 64,1958 NMSC 134
• Parties: L. J. CARTWRIGHT et al., Plaintiffs-Appellants, v. PUBLIC SERVICE COMPANY OF NEW MEXICO, a New Mexico Corporation, Defendant-Appellee.
• Court: New Mexico Supreme Court

Page 654

343 P.2d 654

66 N.M. 64

L. J. CARTWRIGHT et al., Plaintiffs-Appellants, v. PUBLIC SERVICE COMPANY OF NEW MEXICO, a New Mexico Corporation, Defendant-Appellee.

No. 6172.

Supreme Court of New Mexico.

Dec. 12, 1958.

Rehearing Denied May 14, 1959.

Dissenting Opinion on Motion for Rehearing June 1, 1959.

On Second Petition for Rehearing, Five Judge Court and

Motion to Recall Mandate Denied Sept. 3, 1959.

Hannett, Hannett & Cornish, A. T. Hannett and T. G. Cornish, Albuquerque, David Chavez, Jr., Santa Fe, for appellants.

Noble & Noble, A. T. Rogers, Jr., Donald A. Martinez, Las Vegas, Keleher & McLeod, W. A. Keleher and A. H. McLeod, John B. Tittmann, Albuquerque, Watson, McIntosh & Watson, Santa Fe, for appellee.

Hilton Dickson, Jr., Atty. Gen., Frank Zinn, Santa Fe, Fred M. Standley, Atty. Gen., Frank Horan, Claud Mann and Irwin Moise, Peter E. Gallagher, Albert T. Ussery, Sp. Counsel for City of Albuquerque, Albuquerque, amici curiae.

Peter Gallagher, Albert T. Ussery, Frank B. Zinn, Atty. Gen., Charles D. Harris, Sp. Asst. Atty. Gen., Claud Mann, Irwin Moise, Albuquerque, James W. Stagner, Carlsbad, Jess D. Weir, Las Cruces, amici curiae on motion for rehearing.

SADLER, Justice.

On the 6th day of May, 1955, the plaintiff, Cartwright, joined by a large number of other water users from the Gallinas River filed a first amended complaint in the district court of San Miguel County against Public Service Company as defendant, consisting of several causes of action wherein they set up their rights to the use of waters of said stream, which it was said the defendant was trespassing upon by appropriating such waters to its own use in derogation of their rights. Relief by way of injunction and damages was sought, as well as the appointment of a water master to administer the waters under the direction of the State Engineer, pendente lite.

During progress of the trial the plaintiffs were permitted to file a trial amendment to conform their amended complaint to the proof. In addition, the Town of Las Vegas prayed and was granted leave to intervene, which it did by filing its Answer along with that of the defendant, Public Service Company. The issues having been made up the cause came on for trial, following which and in due course, the court filed a decision containing its findings of fact and conclusions of law and entered its judgment, conformably thereto, dismissing the complaint from which this appeal is prosecuted. We know of no better way to place before the reader the facts upon which the trial court based its judgment than to set forth its decision containing them and the conclusions of law deduced therefrom. This we now do. They follow:

'Decision of the Court.

'The Court makes the following

'Findings of Fact.

'I.

'That the Intervener, The Town of Las Vegas, New Mexico, is a municipal corporation, organized and existing under and by virtue of the laws of the State of New Mexico and is located in the County of San Miguel, State of New Mexico.

'II.

'That Public Service Company of New Mexico is a corporation, organized and existing under and by virtue of the laws of the State of New Mexico.

'III.

'That in 1835, the territory within which the Intervener, The Town of Las Vegas, New Mexico, is situated, was a part of and under the sovereign jurisdiction of the Republic of Mexico.

'IV.

'That on April 6, 1835, the Government of the Republic of Mexico, then having jurisdiction of the Territory in which The Town of Las Vegas, New Mexico, and City of Las Vegas, New Mexico, are now located, established a Mexican pueblo, known as Nuestra Senora de Las Dolores de Las Vegas, at the site and comprising the territory now occupied by the said Town and City of Las Vegas, New Mexico.

'V.

'That the Government of the Republic of Mexico, on April 6, 1835, made and approved a community colonization grant known as the Las Vegas Grant to the pueblo known as Nuestra Senora de Las Dolores de Las Vegas, and placed the grantees, the inhabitants of said pueblo, in juridical possession thereof.

'VI.

'That the Gallinas River ran through, along or beside said pueblo and was the sole source of water supply for said Mexican pueblo, and its inhabitants.

'VII.

'That the Gallinas River is now and has been, ever since the establishment of said Mexican Pueblo, predecessor of the Town of Las Vegas and the City of Las Vegas, the sole source of water supply of said Mexican Pueblo and its successors, the said City and Town and their inhabitants.

'VIII.

'That the said Mexican Pueblo and its successors, the Town of Las Vegas and the City of Las Vegas, New Mexico, and their inhabitants, either through themselves or through the defendant, or its predecessors, under franchises, for the better utilization of such water rights, had and have for their source of water supply the Gallinas River and have used so much of the waters of said Gallinas River as has been necessary for their use.

'IX.

'That the territory within which said Mexican pueblo was located became a part of and under sovereignty of the United States of America by the Treaty of Guadalupe Hidalgo executed in 1848.

'X.

'That the Town of Las Vegas, New Mexico, and the City of Las Vegas, New Mexico, are the successors, under sovereignty of the United States of America, to the Mexican pueblo, Nuestra Senora de Las Dolores de Las Vegas.

'XI.

'That after acquisition of said territory by the government of the United States of America, the Congress of the United States confirmed said grant made by the Republic of Mexico to said Mexican pueblo, and caused to be issued to the Town of Las Vegas, New Mexico, a patent to the said Las Vegas Grant, including the land upon which said Town and City, formerly said Mexican pueblo, was and is situated.

'XII.

'That the said pueblo so established continuously existed and maintained its legal standing and was continuously recognized by the sovereign power of the Republic of Mexico up to the time of the acquisition of legal sovereignty of the territory by the United States of America and that during all of said time it was a Mexican pueblo.

'XIII.

'That the present Town of Las Vegas, New Mexico, and the City of Las Vegas, New Mexico, are the result of the natural growth and expansion of the original Mexican pueblo known and established as Nuestra Senora de Las Dolores de Las Vegas, and are the successors of said pueblo.

'XIV.

'That the laws of the Republic of Mexico in force at the time the pueblo of Nuestra Senora de Las Dolores de Las Vegas was established, and continuing in force to the time of the Treaty of Guadalupe Hidalgo, provided that Mexican colonization pueblos should have a prior and paramount right to the use of so much of the water of streams or rivers flowing through or along or beside such pueblos as should be necessary for the use of such pueblos and their inhabitants, and for the continued use of such pueblos, and their inhabitants by reason of increased growth and size and use.

'XV.

'That at the time of the Treaty of Guadalupe Hidalgo and the acquisition of said territory by the United States of America, said Mexican pueblo was functioning under the laws of the Republic of Mexico and had all of the rights, powers and privileges of a Mexican colonization pueblo, including the right of the pueblo and its inhabitants to the use of the waters of the Gallinas River, prior and paramount to any and all other individual rights whatsoever to the use of said waters.

'XVI.

'That the Pueblo, Nuestra Senora de Las Dolores de Las Vegas, and its inhabitants, by the laws of the Republic of Mexico, in force at the time of the Treaty of Guadalupe Hidalgo, had a vested prior and paramount right to the use of so much of the water of the Gallinas River as should be necessary for the pueblo and its inhabitants, including the future growth and expansion of said pueblo.

'XVII.

'That the Agua Pura Company, a corporation, was formed in 1880 and constructed its reservoirs and water distribution system and distributed water to the communities, now the Town of Las Vegas and the City of Las Vegas, under authority of a fifty year franchise granted by the Board of County Commissioners of San Miguel County, New Mexico.

'XVIII.

'That the defendant, Public Service Company of New Mexico, is the successor of said Agua Pura Company, a corporation, and New Mexico Power Company, a corporation.

'XIX.

'That at the time said franchise to distribute water to said communities was so granted by the Board of County Commissioners of San Miguel County, New Mexico, neither of said communities was incorporated and they were under the control and jurisdiction of the said Board of County Commissioners.

'XX.

'That the City of Las Vegas, New Mexico, was not a party to United States of America v. Hope Community Ditch, No. 712 Equity, in the United States District Court for the District of New Mexico, and that the decree in said cause did not adjudicate or determine any water rights of or claimed by said City of Las Vegas, New Mexico.

'XXI.

'That no answer was filed by the Intervener, The Town of Las Vegas, New Mexico, in United States of America v. Hope Community Ditch, et al., No. 712 Equity, in the United States District Court for the District of New Mexico; and that the decree in said cause did not adjudicate or determine any water rights of, or claimed by, the Intervener, The Town of Las Vegas, New Mexico.

'XXII.

'That the judgment and decree of the Court in United States of America v. Hope Community Ditch, et al., No. 712 Equity, in the District Court of the United States for the District of New Mexico, specifically did not affect any water rights or right to the use of water from the Gallinas River so specifically determined and established by said decree.

'XXIII.

'That at the time the issues were framed and stipulations made affecting the water rights of those parties specifically set out and whose water rights were determined by the specific portions of the judgments and...