Hagerman Irr. Co. v. East Grand Plains Drainage Dist.

• Decision Date: 26 January 1920
• Docket Number: No. 2334.,2334.
• Citation: 25 N.M. 649,187 P. 555
• Parties: HAGERMAN IRR. CO.v.EAST GRAND PLAINS DRAINAGE DIST.
• Court: New Mexico Supreme Court

25 N.M. 649

187 P. 555

HAGERMAN IRR. CO.

v.EAST GRAND PLAINS DRAINAGE DIST.

No. 2334.

Supreme Court of New Mexico.

Jan. 26, 1920.

Syllabus by the Court.

Artificial waters are not subject to appropriation under the statutes of this state.

Natural waters flowing in streams and water courses are subject to appropriation. The creator of an artificial flow of water is the owner of the water so long as it is confined to his property, but when such artificial waters are deposited into a natural stream, and the creator of the flow has lost his dominion over the same, such waters become a part of the waters of the stream, and are subject to appropriation and use; but it is only after such waters reach the stream that they are subject to appropriation and use, and the appropriator or user of such waters can acquire no right as against the creator of the flow to require him to continue supplying such waters to the stream.

Where a drainage district, organized under the statutes of this state, constructs a drainage system, and the drainage ditch flows into an irrigation canal, no right on the part of the irrigation canal exists to require a continuation of such flow of water.

Appeal from District Court, Chaves County; McClure, Judge.

Suit by the Hagerman Irrigation Company against the East Grand Plains Drainage District to enjoin a diversion of water. Decree for defendant, and plaintiff appeals. Affirmed.

Where waters from an artificial stream created by an owner thereof are deposited into a natural stream, so that the creator of the flow has lost his dominion over it, the appropriator of the waters can acquire no right as against the creator of the flow to require him to continue supplying such waters to the stream.

L. O. Fullen and W. A. Dunn, both of Roswell, for appellant.

R. D. Bowers, of Roswell, for appellee.

ROBERTS, J.

The appellee is a drainage ditch organized under the provisions of chapter 31, Code 1915. This chapter provides for the organization of such a ditch by the adult owners of land within any district of land, and such drainage ditch, when formed as required by law, is managed by three commissioners appointed by the judge of the district court. Such drainage ditch is made a corporation, and given power to sue and be sued. The appellee herein was organized by the landowners of the East Grand Plains neighborhood in Chaves county for the purpose of draining the lands owned by certain individuals within the limits of the district. The district in question was organized in 1915, and began the construction of a system of drainage to reclaim the lands within the limits of the district. The drains were constructed of tile laid beneath the surface of the earth. In constructing the system the excavation and laying of tile were begun on the canal of the Hagerman Irrigation Company. This was an artificial canal, constructed by the appellant many years ago, prior to the formation of the drainage ditch, and the canal company was engaged in supplying water, to consumers living below the outlet of the drainage ditch, for compensation. Water from the drainage ditch began flowing into the canal as soon as it had been constructed for a sufficient length to afford any drainage, but the laterals and feeders for the main drain were not all completed until February, 1918. When the drainage system was completed there were from four to ten second feet of water flowing from the drainage ditch into appellant's canal. In the year 1917 there were at times as much as ten second feet of water flowing into appellant's canal from the drainage ditch, and in that year a contract was made between the canal company and the drainage commissioners, by which the water was leased to the canal company for one year, for the sum of $350. Early in the year 1918 the drainage commissioners conceived the idea of carrying the water developed by the drainage system across the canal of the appellant, and intended to sell water to other parties beyond the canal of the appellant. The drainage commissioners attempted to purchase a right of way across appellant's canal for the purpose of building a flume to carry the water. The canal company refused to sell a right of way, and a condemnation suit was instituted, and commissioners were appointed by the district court to appraise the damage to appellant.

Thereafter, and before the commissioners had reported, appellant instituted this suit in the district court of Chaves county for the purpose of enjoining appellee from diverting the water which had been flowing into the canal from appellee's drain ditch. The complaint asked the relief upon two theories: (1) That it had acquired a right to the water by appropriation; (2) that it had acquired a right to the use of the water by prescription. Upon the trial the claim to the water, by prescription, was abandoned, and reliance was placed only upon the alleged appropriation of the water.

An answer was filed by appellee, admitting that it intended to carry the water beyond appellant's canal and sell the same, but set up that appellant owned no interest or right whatever in and to the waters developed by the drainage ditch, and denied that it had made a valid appropriation of the same. The court, after hearing the evidence, made findings of fact and stated conclusions of law, upon which judgment was entered for appellee, from which this appeal is prosecuted.

Appellant argues ten propositions upon which it relies for a reversal, but the decisive question in the case is as to whether or not appellant had made a valid appropriation of the waters flowing into its canal from the drain of appellee.

We do not regard the question as to the disposition which appellee intended to make of the waters as of any importance. If appellant did not have, as against the appellee, a right to the continuous receipt and use of the water in question, it would have no standing in a court of equity. Consequently the question to be determined is, Did the appellant acquire a right to the use of this water as against the creator of the artificial flow? In passing, it is proper to say that a different question would be involved should a contest arise between two parties as to the right to the use of water created by an artificial flow, neither of such parties being the creator of such flow.

[1] That artificial waters are not subject to appropriation under the statutes of this state is demonstrated by a quotation of section 5654, Code 1915, defining what waters are subject to appropriation. This section reads as follows:

“All natural waters flowing in streams and water courses, whether such be perennial, or torrential, within the limits of the state of New Mexico, belong to the public and are subject to appropriation for beneficial use.”

Likewise under the Constitution of the state (section 2, article 16) only the unappropriated water of every natural stream is subject to appropriation.

The question then arises as to whether such waters were subject to appropriation at common law, or in the absence of statute. In Kinney on Irrigation and Water Rights, vol. 2, § 1043, the author says:

“No prescriptive right can be acquired as against mere waste waters. In fact no right can be acquired to have the discharge of waste water continued either by appropriation, prescription, or estoppel regardless of the time such waste water has been used by those claiming the right.”

In Wiel on Water Rights in the Western States, vol. 1, § 56, the author says:

“While artificial flow claimants may thus have priority between themselves, they can have no right of continuance against the owner of the natural supply, except by grant, condemnation, or...