Farmers' Dev. Co. v. Rayado Land & Irrigation Co.

• Decision Date: 17 May 1913
• Citation: 18 N.M. 1,133 P. 104
• Court: New Mexico Supreme Court
• Parties: FARMERS' DEVELOPMENT CO.v.RAYADO LAND & IRRIGATION CO.

18 N.M. 1

133 P. 104

FARMERS' DEVELOPMENT CO.

v.RAYADO LAND & IRRIGATION CO.

Supreme Court of New Mexico.

May 17, 1913.

Syllabus by the Court.

Assignments of error that “the court below erred in affirming the decision of the board of water commissioners,” and that “the court below erred in rendering judgment herein in favor of said appellee, affirming the said decision of the board of water commissioners,” are not sufficiently specific to present any question for review.

Under chapter 49, Sess. Laws 1907, from any act or refusal to act of the state engineer, the aggrieved party may appeal to the board of water commissioners, and may likewise appeal from the decision of said board to the district court. The statute contemplates a hearing or trial de novo before each board or tribunal, and not a review of the order or decision of the inferior tribunal. An assignment of error, in such a proceeding, upon appeal from a judgment of the district court, that “the court below erred in finding and adjudging that the said board of water commissioners had and was possessed of the right, warrant, and authority to review the discretion of the said state engineer in the matter of the approval of permits to appropriate,” is therefore not well taken, because the record in this case fails to show that the district court so held, or that any such issue was presented, or could have been involved, in the case.

Appeal from District Court, Colfax County; T. D. Lieb, Judge.

Application by the Rayado Land & Irrigation Company to appropriate certain waters for irrigation purposes, as to which the Farmers' Development Company protests. From a judgment in favor of applicant, protestant appeals. Appeal dismissed.

Under chap. 49, Sess.Laws 1907, from any act or refusal to act of the state engineer, the aggrieved party may appeal to the Board of Water Commissioners, and may likewise appeal from the decision of said board to the district court. The statute contemplates a hearing or trial de novo before each board or tribunal, and not a review of the order or decision of the inferior tribunal. An assignment of error, in such a proceeding, upon appeal from a judgment of the district court, that “the court below erred in finding and adjudging that the said Board of Water Commissioners had and was possessed of the right, warrant and authority to review the discretion of the said state engineer in the matter of the approval of permits to appropriate,” is therefore not well taken, because the record in this case fails to show that the district court so held, or that any such issue was presented, or could have been involved in the case.

J. C. Gunter and H. E. Lutz, both of Denver, Colo., and H. L. Bickley, of Raton, for appellant.

Jones & Rogers, of East Las Vegas, for appellee.

ROBERTS, C. J.

On May 27, 1907, the appellee filed its application with the territorial engineer, as authorized by chapter 49, S. L. 1907, to appropriate the waters of the Rayado river and certain tributary streams, for the purpose of irrigating certain lands in Colfax county, New Mexico, in said application described. In August thereafter the territorial engineer ordered notice to be given by appellee of a hearing on said application on October 11th following. Notice was published as required by said act, and the appellant filed with said engineer a protest against the approval of appellee's application. The territorial engineer, after a hearing had, declined to act upon appellee's said application, and an appeal was taken from such refusal to act to the board of water commissioners. Upon a hearing had, the board of water commissioners approved the application, with the proviso “that the permit thereunder shall not be exercised to the detriment of any person, firm, corporation, or association having prior rights to the use of waters of said stream system.” From the decision of the board of water commissioners, appellant appealed to the district court of Colfax county, where the cause was heard, as required by the statute, de novo, and upon such hearing the issues were found for appellee and judgment entered in its favor, from which judgment appellant prosecutes this appeal.

[1] The assignments of error filed by appellant are as follows:

“1. That the court below erred in affirming the decision of the board of water commissioners, directing and ordering the state engineer to approve the application of the appellee herein for the appropriation of water of and from the Rayado river.

2. That the court below erred in finding and adjudging that the said board of water commissioners had and was possessed of the right, warrant, and authority to review the discretion of the said state engineer in the matter of the approval of permits to appropriate water.

3. That the court below erred in rendering and entering judgment in favor of the said appellee, affirming the said decision of said board of water commissioners.”

Appellee contests the sufficiency of each of the above assignments of error, on the ground that they are too general, indefinite, and not sufficiently specific, and each error relied upon is not stated in a separate paragraph, and further, with respect to the second assignment, that it attempts to raise a question in the appellate court which was not raised nor considered in the district court, and that the assignment, even if good in form, is without merit.

The first and third assignments are in general terms and do not point out the specific error relied upon. The first assignment does not state whether the alleged error was predicated upon the failure of the court to decide in accordance with the weight of the evidence, or whether upon some point of law the decision was erroneous. Under this general assignment the appellant might well argue many different propositions in support of a reversal of the judgment. For instance, it might contend that the district court did not have jurisdiction of the cause; that it was without power to try the cause de novo; that there was a failure of proof as to some material point which appellee would be required to establish in order to secure the approval of its application, such, for instance, as that there was unappropriated water available for its application; that as a matter of law, upon the facts proven, the court should not have approved the application; and other reasons might be urged in addition to the above. The third assignment, for the same reasons, is also insufficient. It does not point out wherein the judgment rendered is erroneous, unless it be contended that the judgment affirming the decision of the board of water commissioners, because of its form and language, was improper; but no such contention is urged, and no objection is made to the form or sufficiency of the judgment. This being true, this court will not examine the judgment for the purpose of passing upon its form or legal sufficiency, but will treat it, as both parties to this appeal have elected to consider it, as a final judgment, regular in form and finally disposing of the cause. This being true, the effect of the third assignment is that the court erred in rendering judgment for the appellee. An assignment of error partakes of the nature of a pleading, and...