Clodfelter v. Reynolds
| Decision Date | 04 January 1961 |
| Docket Number | No. 6703,6703 |
| Citation | 68 N.M. 61,1961 NMSC 3,358 P.2d 626 |
| Parties | Marvin L. CLODFELTER and Louise V. Clodfelter, his wife, Bertha P. Dutton, Gilbert G. Lopez and Maria S. Lopez, his wife, Pot Creek Logging & Lumber, Inc., Romac, Inc., d/b/a Memorial Gardens, Paul Ragle, Ben Rhoda and Marjorie M. Rhoda, his wife, Howard M. Rosenthal, Russell W. Thomen and Berta O. Thomen, his wife, John E. Tiano and Marjory Moore Tiano, his wife, Earl C. Kauffman and Mrs. A. R. (Agnes Robinson) Wheelwright, Petitioners-Appellants. v. S. E. REYNOLDS, State Engineer, and Public Service Company of New Mexico, Respondents-Appellees. |
| Court | New Mexico Supreme Court |
Richard H. Robinson, Santa Fe, for petitioners-appellants.
C. R. McIntosh, Santa Fe, Keleher & McLeod, John B. Tittmann, Albuquerque, for respondents-appellees.
This is an appeal from the district court of Santa Fe County, New Mexico, and involves the same facts as in cause No. 6675, although a separate appeal. It originally arose in the district court as an appeal by certain protestants from a decision of the State Engineer rendered upon the application of Public Service Company of New Mexico for a permit to drill a well within the declared boundaries of the Rio Grande Underground Water Basin, to change the point of diversion of a portion of the public water to which rights are claimed by Public Service Company under a prior declaration No. 01278 and under permit No. 1677 issued by the State Engineer.
The State Engineer held a hearing upon the application and protests and, in a memorandum decision, approved the application, provided that the maximum rate of production of water under the permit shall not exceed 1,000 gpm (gallons per minute); and provided further that the total amount of water appropriated in any year under all of the listed claims of right of Public Service Company, as filed in the State Engineer's office, shall not exceed 5,040 acre feet. The State Engineer found that the proposed change would not impair existing rights and granted the permit.
This cause and cause No. 6675 were consolidated for the purpose of permitting the filing of one transcript of the proceedings before the State Engineer, as a transcript in each of said causes, and for the further purpose of taking further testimony and trial on the merits, if that stage of proceedings is reached in both cases, and for no other purpose.
The district court adopted the requested findings of fact and conclusions of law of appellee, Public Service Company, holding that the diversion proposed in appellee's application would not impair the water rights of any of protestants, and rendered judgment for appellee. From this judgment protestants appeal.
On this appeal, the parties will be referred to as they appear in the record, protestants as appellants and Public Service Company as appellee.
Appellee's water rights were acquired as follows:
(a) Right perfected prior to March 19, 1907, as per Declaration No. 01278 of owner on file 1,540 ac. ft.
(b) Under State Engineer's Permit No. 1677 3,500 ac. ft.
Total per annum 5,040 ac. ft.
Appellee's application to change the partial point of diversion sets out the reason therefor as follows:
'The above mentioned surface rights in time of drought do not produce sufficient water to meet the present demands, which demands are rapidly increasing each year.'
The application also sets forth that the water diverted from the proposed well will be used, along with available surface water, for municipal supply within the area of the city of Santa Fe.
The declarations on file in the State Engineer's office, which are part of the record, by which appellee claims rights to divert the public waters of the state by the pumping of wells are:
Declaration Amount Date of initial
No. Rate-gpm a.f./annum beneficial use
----------- -------- ---------- ---------------
RG-1113 300 483 2/10/46
RG-1114 50 80 10/21/50
RG-1115 450 725 2/1/51
RG-1116 430 693 2/21/51
RG-1117 650 1,048 4/23/51
RG-1118 1,200 1,935 12/28/51
-------- ----------
3,080 4,964
Appellee's Exhibit No. 26 shows that the production capacity of these wells has declined to a present total of 3,384,000 gallons per day, or 2,350 gallons per minute. Each of the above listed declarations sets forth that water has been used:
'As and when needed to supplement the Company's main source of supply for City of Santa Fe, located in Santa Fe Canyon, under Permit No. 1677 and Old Water Right declared, * * *.'
At no time have any of the above wells been used to supply any part of demands in excess of 5,040 acre feet per year, and the testimony of appellee's witness, Malcolm Heffleman, indicates that it has been the practice of appellee to begin pumping well water for use in the city of Santa Fe when the amount of water in storage in the company's reservoirs on Santa Fe River has dropped to 500,000,000 gallons (1,530 acre feet). Also, according to the demand distribution curve set forth in Figure 34 of the report in evidence entitled, 'Geology and Ground Water Resources of the Santa Fe Area,' by Zane Spiegel and Brewster Baldwin, the requirement during the seven-month period from April through October would amount to 3,625 acre feet, if the annual demand amounted to 5,040 acre feet. Appellee's existing wells can produce only 2,210 acre feet, or 1,415 acre feet less than the April through October demand, during a seven-month period.
The State Engineer approved appellee's application provided that the maximum rate of production of water under the permit to be issued under said application shall not exceed 1,000 gallons per minute; and provided further that the total amount of water appropriated in any year under appellee's Declaration No. 01278, Permit No. 1677, Declarations Nos. RG-1113, RG-1114, RG-1115, RG-1116, RG-1117, RG-1118, and Permit No. 304 (), shall not exceed 5,040 acre feet per year.
Appellee's application sets out the following pertinent matters:
(a) That appellee is under franchise to the city of Santa Fe to furnish an adequate supply of water for industrial and demestic needs, and to provide for the reasonably to be anticipated city growth and resulting increased needs.
(b) That appellee's water rights were acquired:
(1) Under Declaration No. 01278 1,540 ac. ft.
(2) Under State Engineer's Permit
-------------
Total per annum 5,040 ac. ft.
(c) That the above mentioned rights in time of drought do not produce sufficient water to meet the present demands, which demands are rapidly increasing each year.
(d) That the water diverted from the proposed well will be used, along with available surface water, for municipal supply within the area of the city of Santa Fe.
The record also shown that the State Engineer, under his statutory authority, issued an order declaring the boundaries of the Rio Grande Underground Water Basin on November 29, 1956.
Appellants first contend that there is no statutory authority for the granting of an application such as involved in this case by the State Engineer, or by any other official, apparently upon the theory that statutory authority is necessary for a change of the point of diversion from surface waters to underground waters. We have two statutory provisions utilizing procedures to be followed in changing the point of diversion. Section 75-5-23, N.M.S.A., 1953 Comp., provides:
Section 75-11-7, N.M.S.A., 1953 Comp., provides:
* * *'
In Application of Brown, 65 N.M. 74, 332 P.2d 475, 477, involving an application for permit to change the location of a well, this court, speaking through Chief Justice Lujan, said:
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Carangelo v. Albuquerque-Bernalillo Cnty. Water Util. Auth.
...Court rejected an argument that “statutory authority is necessary for a change of the point of diversion.” 1961–NMSC–003, ¶ 13, 68 N.M. 61, 358 P.2d 626. Our Supreme Court held that the statutes only restricted the appropriator'sotherwise inherent right to effect such a change as the owner ......
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Burlingham v. Burlingham
...brief in chief under point I. Besides, this is not a jurisdictional matter and defendant is not prejudiced thereby. Clodfelter v. Reynolds, 68 N.M. 61, 358 P.2d 626; Barelas Community Ditch Corp. v. City of Albuquerque, 61 N.M. 222, 297 P.2d 1051; and Armijo v. National Surety Corp., 58 N.M......
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...indicated in Spencer v. Bliss, 60 N.M. 16, 287 P.2d 221, 228; Application of Brown, 65 N.M. 74, 332 P.2d 475, 479; and Clodfelter v. Reynolds, 68 N.M. 61, 358 P.2d 626, that when called upon to specifically determine the question, the scope of review would be limited. Our prior decisions we......
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