Halford Ditch Co. v. Indep. Ditch Co.

• Decision Date: 10 August 1916
• Docket Number: No. 1796.,1796.
• Parties: HALFORD DITCH CO.v.INDEPENDENT DITCH CO.
• Court: New Mexico Supreme Court

22 N.M. 169

159 P. 860

HALFORD DITCH CO.

v.INDEPENDENT DITCH CO.

No. 1796.

Supreme Court of New Mexico.

Aug. 10, 1916.

Syllabus by the Court.

In trials before the court the erroneous admission of testimony will afford no ground for reversal unless it appears that the court considered such testimony in deciding the case.

Where two or more community ditches take water from a common ditch or head, and the lower ditch has enlarged the upper one either by reason of a contract with the upper ditch or by reason of the common consent and acquiescence of the water right owners in said upper ditch, the lower ditch becomes a tenant in common with the upper ditch in the common structure, and as such is entitled to the joint management and control of the same in so far as the joint maintenance of the ditch is concerned.

Error to District Court, San Juan County; E. C. Abbott, District Judge.

Bill by the Halford Ditch Company against the Independent Ditch Company. There was a judgment for defendant, and plaintiff brings error. Affirmed.

Where two or more community ditch companies take water from common ditch or head, and lower ditch company has under contract or with consent of upper enlarged the head, it becomes a tenant in common in such structure, and is entitled with upper ditch company to joint management.

Wm. A. Palmer, of Aztec, and E. P. Davies, of Santa Fé, for plaintiff in error.

Palmer & Danburg, of Farmington, and McFie, Edwards & McFie, of Santa Fé, for defendant in error.

PARKER, J.

The plaintiff below, a community ditch, plaintiff in error here, filed a bill in the district court for an injunction against the defendant, which is likewise a community ditch. It was alleged in the complaint that in 1897 the settlers and the then members of the plaintiff in error constructed an irrigation ditch or canal in San Juan county, N. M., the course of which is pointed out in the complaint; that during the course of the construction of said ditch the organizers of and settlers under defendant in error made and entered into a certain agreement with the plaintiff in error, a copy of which is attached to the complaint. This contract contained a provision that the defendant in error should enlarge the ditch of plaintiff in error to certain dimensions therein specified, and it was expressly provided that the plaintiff in error was to have complete control of the said ditch, as enlarged, as far down from the mouth as to a certain specified point. It was agreed that the defendant in error should do its part of the repairs to maintain the ditch. This contract is dated February 3, 1892. On September 14, 1896, the parties entered into a subsequent contract to the effect that each of the parties should clean and enlarge the sections of the ditch to eight feet wide on the bottom and nine feet wide two feet above the bottom grade from the head of the ditch to the first division box, and so on down the line of the ditch, decreasing the size of the ditch as the water was taken out by the water users. In this contract it was agreed that the two parties should select a man to take charge of the headgate at the river, whence the water is taken, and to walk the ditch down to a certain spillway as often as necessary to keep all trash from accumulating in the ditch, and do such other work as should be necessary to keep a full head of water in the ditch, and should have the right to such help as he needed to do the work. The expense of keeping such man was to be borne by the two parties in proportion to the amount of water each one owned in the ditch. Subsequently, on the 18th day of April, 1910, the said parties entered into another agreement, but the provisions of the same in no way modified the rights of the parties as to the management and control of the ditch. It was alleged in the bill that the defendant in error had refused, failed, and neglected to perform its proportionate part of the labor and pay its proportionate part of the assessments of the said ditch to the dividing line between the two ditches, and still fails to do so; that the defendant in error, notwithstanding the fact that the complete control and management of the said ditch was in the plaintiff in error, had, without authority or permission of the said plaintiff in error, and against its objections, plowed up and cut into and destroyed portions of said ditch, lowering the grade thereof and damaging the flumes which are in the portion of said ditch owned by plaintiff in error, thereby seriously damaging the same and partially rendering the same unfit for use; that the defendant in error was continuing to interfere with said ditch, cutting and destroying portions thereof, and threatened to do other and further cutting and interfering of and in said ditch; that by reason of said acts of the defendant in error the plaintiff in error was seriously hindered and delayed in its efforts to place said ditch in its proper condition to deliver water to its members; that by reason of the said acts of the defendant in error the said ditch was rendered in a dangerous condition and not in a proper condition to carry water, to the great damage, difficulty, and annoyance of the plaintiff in error. The plaintiff in error prayed for an injunction against the defendant in error from doing any of the acts complained of save by and under the authority and permission and direction of the plaintiff in error; that defendant in error be enjoined...