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

• Decision Date: 29 January 1923
• Docket Number: No. 2496.,2496.
• Citation: 28 N.M. 357,213 P. 202
• Court: New Mexico Supreme Court
• Parties: FARMERS' DEVELOPMENT CO.v.RAYADO LAND & IRRIGATION CO. ET AL.

28 N.M. 357

213 P. 202

FARMERS' DEVELOPMENT CO.

v.RAYADO LAND & IRRIGATION CO. ET AL.

No. 2496.

Supreme Court of New Mexico.

Jan. 29, 1923.

Syllabus by the Court.

The right of one who claims the right to the use of water for irrigation purposes under the Appropriation Act of 1907 (Laws 1907, c. 49), does not relate back to an earlier date than the filing of his application, as required by said act.

Section 19 of chapter 102 of the Session Laws of 1905 was a police regulation only; and a compliance therewith did not initiate a right to the use of water.

The general law for the appropriation of water, as recognized in the arid states, was not affected by the enactment of chapters 102 and 104 of the Session Laws of 1905.

The enactment of chapters 102 and 104 of the Session Laws of 1905 repealed sections 493 and 494 of the Compiled Laws of 1897.

Section 2 of chapter 102 of the Session Laws of 1905, enacted into statute the general law of appropriation of water.

Chapter 104 of the Session Laws of 1905 was permissive in character; applying only to such claims to the right of use of water as were initiated under it. It was not exclusive, and did not preclude the initiation of a claim under the general law; nor did it deprive a claimant of the doctrine of relation.

Chapter 104 of the Session Laws of 1905 provided an alternative procedure for the appropriation of water, effective only in securing certain concessions as to time of construction provided therein.

In construing a statute, words retain their ordinary meaning, unless a different meaning is necessary to give effect to the purpose and intent of the Legislature.

The power to construe a statute permissive in form as mandatory is exercised in proper cases by the courts; but it is a dangerous power and should be exercised with reluctance, but only in cases coming clearly within the recognized rules; or when the clear intent of the statute, as shown by the context, demands such construction.

No right was obtained by following an unauthorized rule of the territorial engineer, attempting to create a right of relation.

Sections 2 and 59 of chapter 49 of the Session Laws of 1907 excluded from its operation claims of appropriation of water initiated under the general law prior to its enactment, and rights so obtained related back to the initiation of the claim, subject to the diligent prosecution to completion of necessary surveys and construction for the application of the water to a beneficial use.

Evidence held sufficient to establish the fact that appellee had initiated a claim to the right to use water to irrigate 10,000 acres of land, and that appellant had notice thereof prior to its initiation of a claim.

Where there is substantial evidence to support the findings of the trial court, they will not be disturbed on appeal.

Maps made by the territorial engineer, to be used in another case by authority of a statute, are admissible in evidence in connection with the testimony of the witnesses who did the engineering work and made the maps, as other maps are admitted in evidence.

Where the uncontradicted evidence shows an appropriation of water for domestic purposes, and the court, on request, refused to allow the same or make findings in regard thereto, the case will be remanded, with instructions to determine the question and reform the decree accordingly.

Appeal from District Court, Colfax County; Leib, Judge.

Suit by the Farmers' Development Company against the Rayado Land & Irrigation Company and others. From a decree for plaintiff, defendants appeal. Affirmed in part, reversed in part, and remanded with instructions.

Where the uncontradicted evidence shows an appropriation of water for domestic purposes and the court, on request, refused to allow the same or make findings in regard thereto, the case will be remanded, with instructions to determine the question and reform the decree accordingly.

The facts here stated have reference only to the conflicting claims to the use of water between the appellee and appellant Rayado Colonization Company, hereinafter called appellant. The facts concerning the other parties to the suit will be sufficiently stated in the opinion.

The appellant corporation was organized in November, 1906, and some preliminary work was done toward its enterprise between the 5th and 15th of October. Definite surveys were made the first part of November of that year, from which maps were prepared outlining the project. In December or January, other surveys were made and ditches outlined on the ground. In May, 1907, still other surveys were made, maps prepared and sent to the county recorder of Colfax county to be filed, but were rejected because of the passage of the Irrigation Act of that year. On May 27, 1907, the appellant filed with the irrigation engineer its application for appropriation of water under the Irrigation Act, approved March 19, 1907 (chapter 49). This application was not approved until the determination of a suit ultimately decided by the Supreme Court in 1912, requiring the issuance of a permit; but specifically providing in the decree that it was subject to all prior rights to the use of water. Afterwards it commenced the construction of its irrigation system and continued with apparent reasonable diligence until the filing of this action. Appellant had spent some $60,000, to the time this suit was filed, in constructing its irrigation system, had about 1,300 acres of land under irrigation, and a number of settlers with substantial homes were living thereon. The delay from 1907 to 1912 cannot be charged to it, as its operation under the act of 1907 required the permit which the territorial engineer had refused to issue.

In September, 1906, Morris N. Mikesell, acting for himself and associates, who subsequently organized the appellee corporation, secured an option to purchase certain lands in Colfax county, New Mexico, and after an inspection of the lands following the arrival of his associates, a contract to purchase said lands was, on October 5, 1906, entered into between Mikesell and his associates on the one hand, and the owners of the land on the other, the object of the purchase being to colonize said lands after securing water for their irrigation. On October 5, 1906, Mikesell wrote a letter to the territorial irrigation engineer of New Mexico in the following words:

“In accordance with section 19 of chapter 102 of the laws of New Mexico, 1905, you are hereby notified we desire to appropriate for irrigation purposes, all the regular and flood waters of the Rayado river and tributaries thereto, unappropriated. Said water will be stored in reservoirs located in township 15 north, ranges 19 and 20 east, Colfax county, and will be more definitely located hereinafter. The land to be irrigated consists of about 10,000 acres, situated in townships 24 and 25 north, ranges 20 and 21 east, Colfax county, New Mexico. Work will be begun by survey immediately. Dated October 5, 1906.”

This letter was received and filed by said engineer on October 7, 1906, and treated as an application for the appropriation of water. Survey work for reservoir No. 1 and outlet ditches was begun on October 8, 1906; maps were prepared and forwarded to the territorial engineer the latter part of 1906, to be filed as required by section 19 of chapter 102 of the Session Laws of 1905. In January, 1907, a surveying party was put in the field to obtain data for amending maps theretofore filed, which maps were made and filed with the territorial irrigation engineer January 14, 1907. In the latter part of March, 1907, a second surveying party was put in the field, surveying and locating a second reservoir and canals, and later additional maps were filed with the territorial irrigation engineer. The appellee was incorporated in April, 1907, and the lands mentioned conveyed to it in May of that year. These are the principal properties owned by appellee, although other land was later purchased. On May 14, 1907, the territorial engineer, Vernon L. Sullivan, wrote Mikesell as follows:

“Inclosed you will find copies of rules and regulations relative to parties who have filed notice of intended appropriation but have not otherwise complied with the law and finished their appropriations. This allows you to make application for your intended use of water under the new law, but allows you date of priority same as date of first notice of intended appropriation filed with the territorial irrigation engineer. You can complete your appropriation in your name or the name of the Farmers' Development Company; however, the former would be less complicated. I will send you, as soon as same is printed, blank form of application to appropriate public water together with instructions for obtaining same.”

The rule adopted by the territorial engineer, mentioned in the letter just quoted, is as follows:

“Those who have filed notice of intended appropriation with the territorial irrigation engineer as per section 9, chapter 102, Laws of 1905, but have not filed maps, plans and specifications and who have not otherwise complied with the law, may now file an application under the provisions of the new law of 1907 and said application will be treated as having been received upon the date of the filing of the notice of intended appropriation with the territorial irrigation engineer, and also treated otherwise the same as an original application under the law of 1907.”

The territorial irrigation engineer apparently treated chapter 102 of the Laws of 1905 as an act providing for the appropriation of water.

On June 10, 1907, after the receipt of this letter, the appellee filed its application as suggested by the territorial engineer, reciting therein that it was to be “in connection with the notice filed with the territorial irrigation engineer October 5, 1906.” After the filing of this application, the appellee made numerous other applications for the...