CHAVEZ v. GUTIERREZ

• Decision Date: 10 January 1950
• Docket Number: No. 5195,5195
• Citation: 54 N.M. 76,213 P.2d 597
• Parties: CHAVEZ et al. v. GUTIERREZ et al.
• Court: New Mexico Supreme Court

54 N.M. 76

213 P.2d 597

CHAVEZ et al.

v.GUTIERREZ et al.

No. 5195.

Supreme Court of New Mexico.

Jan. 10, 1950.

[213 P.2d 597, 54 N.M. 77]

Frazier, Quantius & Cusack, Roswell, for appellants.

Brenton & Hall, Carrizozo, for appellees.

SADLER, Justice.

The appellees, plaintiffs below, sued in the District Court of Lincoln County to enjoin the appellant, Annie Gutierrez, one of the defendants below, from using orappropriating waters from the Rio Ruidoso through a certain ditch, designated as the Ambrosio Chavez Community Ditch, for the purpose of irrigating lands described in the amended complaint as parcels VIII and IX, and to quiet title in plaintiffs in and to the separate parcels of land set out in said complaint as belonging to each of them, together with the water rights appurtenant thereto, as against any claim of right, title or interest by the said Annie Gutierrez, and other named defendants. The defendants, Annie Gutierrez and Joe Gutierrez, her son, answered disputing the right of plaintiffs to the injunction prayed for and asserting water rights through said ditch for both parcels VIII and IX described in the complaint. Upon issues thus made up a trial was had resulting in a decree holding the plaintiffs were estopped from questioning the claim of defendant, Annie Gutierrez, to water rights for parcel No. VIII and denying her claim to water rights for parcel No. IX. She was enjoined from taking water through said ditch for parcel No. IX. The defendant, Annie Gutierrez, appealed and the plaintiffs sued out a cross-appeal. The matter is now before us for decision.

The findings of fact and conclusions of law made and adopted by the trial court preliminary to entering its decree, being the facts upon which our decision must rest if supported by substantial evidence, read as follows:

'1. That the plaintiffs and the defendants, Joe Gutierrez and Annie Gutierrez, are the owners and in possession of the various tracts of land, to-wit:

Tract 1, Owner, George Chavez

Tract 2, Owner, Josefita G. Torres and Manuel G. Torres

Tract 3, Owner, The Titsworth Co., a corporation

Tract 4, Owner, Joe Gutierrez

Tract 5, Owner, Fred Montes

Tract 6, Owner, The Titsworth Co., a corporation

Tract 7, Owner, Fred Montes

Tracts 8 and 9, Owner, Annie Gutierrez

together with water and ditch rights for all of the said tracts except Tract 9 owned by Annie Gutierrez, the said tracts of land being shown by Plaintiffs' Exhibit 1 and also in the Plaintiffs' Findings of Fact in numbers 3, 4, 5, 6, 7, which said tracts of land have been irrigated since the year 1879 through the Ambrosio Chavez ditch.

'2. One water right under the said Ambrosio Chavez ditch is the right to divert and use the flow of the water in said ditch for two successive days out of everyeighteen days in rotation; that the said water rights with the lands to which they are appurtenant came from a common source of ownership and are in equal value and standing and entitle the owners of said irrigated lands to 3 acre feet of water per year when there is sufficient flow in the said ditch and to an equal apportionment during the time when there is not sufficient water in the said ditch to irrigate all of the said tracts; that the said lands and water rights were originally owned by Ambrosio Chavez and said rights which became appurtenant to the respective parcels of land were determined and agreed on by the heirs of the said Chavez after his death by oral agreement, and by practice, which has been adhered to since his death on the 10th of November, 1918.

'3. That Parcel 9, belonging to Annie Gutierrez, is not entitled to the use of any water out of the said Chavez ditch, it not being under the Ambrosio Chavez ditch and no appropriation having been made for the said land.

'4. That Miquelitz Chavez, who deeded the lot No. 9 to Annie Gutierrez, had no water right out of the Ambrosio Chavez ditch and could not therefore convey any water right for the said tract to Annie Gutierrez.

'5. That plaintiffs and their predecessors in title are guilty of laches in asserting the right now claimed by them against Annie Gutierrez for the said lot No. 8, and the Court finds that Annie Gutierrez is entitled to the use of the water for the said Ambrosio Chavez ditch for the said lot No. 8.

'6. That during the year 1945 Annie Gutierrez wrongfully entered upon plaintiffs' lands and over the protests of plaintiffsopened the head gates, thereby permitting the entire flow of the said Ambrosio Chavez ditch to her lands designated as Parcels 8 and 9.

'7. That George Chavez and Fred Montes have been and are now irrigating lands for which they hold no water rights or ditch rights, thus diminishing the water rights available for the other users under the said ditch, and that they should be required either to desist from using the water in excess of their original amount of acreage or to cease irrigating the said excess.

Conclusions of Law

'1. Wherefore, it is considered and ordered that the parties plaintiff and the defendant Joe Gutierrez are the owners of the said tracts of land heretofore described herein and also the waters appurtenant to the same, and also that Annie Gutierrez is the owner of Tract No. 8 and entitled to irrigate the same from the said Ambrosio Chavez ditch.

'2. That the plaintiffs are entitled to an injunction restraining the defendant Annie Gutierrez from entering upon their lands and from interfering with their water rights and from interfering with or opening the head gates in the ditches of the said plaintiffs.

'3. That the defendants, Annie Gutierrez and Joe Gutierrez from the pleadings herein have made no claim whatever to the lands of said plaintiffs with water rights appurtenant thereto and there is no necessity for a decree quieting the title of the said plaintiffs to their said several tracts of land and water rights appurtenant thereto.

'4. That these Findings of Fact and Conclusions of Law, together with the Requested Findings by plaintiffs and the defendants, be filed with the Clerk of this Court to become part of the records herein.'

The trial court entered its decree in conformity with the findings and conclusions announced as aforesaid from which the plaintiffs and the defendant, Annie Gutierrez, have prosecuted an appeal and cross-appeal, respectively, as already stated. Actually, in so far as the defendant (appellant) is concerned, the chief grievance against the decree is its failure to uphold a water right as to tract No. 9 and in so far as plaintiffs are concerned it is the trial court's holding that they are estopped by laches from questioning the claim of defendant, Annie Gutierrez, to a water right for tract No. 8. Ancillary questions, to be sure, are presented and argued by the parties but all such in the end sought are directed toward establishing the right of each side to the principal relief prayed as to the respective tracts of land indicated.

Title to the several tracts involved, originally, was in one Ambrosio Chavez. A division of the lands among his children and the widow, Miquelita Chavez, followed his death. The irrigable lands had one water right each in the Ambrosio Chavez ditch through which water was brought to the lands to be irrigated from the Rio Ruidoso. The division left the widow, Miquelita Chavez, seized of title to several of the tracts, including Nos. 8 and 9. The big issue in the case was whether a water right through the Ambrosio Chavez ditch for these two tracts existed in Annie Gutierrez, one of the defendants, to whom title was conveyed by Miquelita Chavez by deed dated ...