Harkey v. Smith

• Decision Date: 17 April 1926
• Docket Number: No. 3008.,3008.
• Citation: 247 P. 550,31 N.M. 521
• Parties: HARKEY et al.v.SMITH et al.
• Court: New Mexico Supreme Court

31 N.M. 521

247 P. 550

HARKEY et al.

v.SMITH et al.

No. 3008.

Supreme Court of New Mexico.

April 17, 1926.Rehearing Denied July 3, 1926.

Syllabus by the Court.

The arid region doctrine, in regard to appropriations of water, has been modified in this jurisdiction by statute (chapter 49, Laws 1907; sections 5654 to 5729, Code 1915), so that here the right to the use of water, both as to volume and periods of annual use, is regulated either by the permit of the state engineer or the decrees of the courts.

Questions not saved in the court below will not ordinarily be noticed here.

Appeal from District Court, Eddy County; Hatch, Judge.

Suit by D. R. Harkey and others against Julian Smith and another for an injunction. Decree for defendants, and plaintiffs appeal. Reversed and remanded, with directions.

The arid region doctrine, in regard to appropriations of water, has been modified in this jurisdiction by statute, chapter 49, Laws 1907; sections 5654 to 5729, Code 1915, so that here the right to the use of water, both as to volume and the periods of annual use, is regulated either by the permit of the state engineer or the decrees of the courts.

C. J. Roberts, of Sante Fé, E. P. Bujac, of Carlsbad, and S. D. Stennis, of Dallas, for appellants.

Robert C. Dow, of Carlsbad, for appellees.

PARKER, C. J.

Plaintiffs (appellants) brought suit for an injunction against defendants (appellees) to restrain them from diverting water from the Black river system in Eddy county, the plaintiffs claiming to own 18 1/3 second feet of said water, and alleging that defendants were diverting 13 1/2 second feet of said water, while they owned but one-fifth of one second foot of the same. Defendants answered, denying the allegations of the complaint, except that they owned one-fifth second foot of water. They answered further by way of new matter, and alleged that they were the owners or lessees of 14.03 second feet of water; that defendant Julian Smith was the owner of 4 1/2 second feet of said water for annual use from October 15th to March 15th of each year, which was acquired by application to the state engineer on January 8, 1920, and was granted December 31, 1920; that said defendant Julian Smith, at the time of the issuance of the injunction, was beneficially using such 4 1/2 second feet of water, and that more than four years prior to the filing of his said application plaintiffs had not beneficially used said water, and that the same had become public unappropriated waters of the state, and as such subject to his said appropriation for winter irrigation from October 15th to March 15th of each year. The 9.33 second feet claimed by the defendant Dean Smith was claimed by virtue of a lease from the United States Reclamation Service, but, as the court disallowed this claim, the allegations in regard thereto need not be noticed.

The defendants prayed that their said rights be established, and that plaintiffs be enjoined from interfering with their use of said waters, and for general relief. Plaintiffs replied, putting in issue all of the facts pleaded in the answer and cross-complaint of the defendants.

On January 3, 1912, in a case entitled United States of America v. Edward F. Judkins et al., No. 112, in the District Court of the United States for the Fifth Judicial District of the then Territory of New Mexico, a decree was entered adjudicating water rights upon the Black river stream system in Eddy county, N. M. In that decree there was awarded to said Judkins the first water right for 3 second feet of water and the seventh water right for 7 second feet of water, making a total of 10 second feet, which waters were declared to be appropriated to the Blue Springs ranch. In said decree there was awarded to appellee Julian Smith the third water right to one-fifth second foot of water appurtenant to 20 acres of land in the decree described. On April 9, 1919, appellant D. R. Harkey filed with the state engineer an application (No. 1279) to appropriate 7 second feet of water for year round use of the same source of supply above mentioned. A protest against the allowance of said application was filed with the state engineer by the successors in interest of the said Judkins. The matter was appealed from the decision of the state engineer to the state board of water commissioners, and from its decision to the district court in and for Eddy county. In that court a decree was entered awarding to said Harkey 5 second feet of said water under his application No. 1279, upon the theory and finding that the said Judkins and his successors in interest, the said protestants, had forfeited by the same nonuser for more than 4 years prior to the filing of said application, leaving the said successors in interest of said Judkins 5 second feet of water out of the 10 second feet originally awarded in the decree of 1912 to Judkins. In pursuance of said decree, the state engineer, on January 6, 1922, approved the Harkey application. On April 25, 1921, Harkey acquired by deed the Blue Springs ranch, together with the 10 second feet of water appurtenant thereto, awarded to Judkins in the decree of 1912. In the meantime appellee Julian Smith, on January 8, 1920, filed an application with the state engineer to appropriate 4 1/2 second feet of water out of the same source of supply for the season from October 15th to March 15th, of each year, and based his application upon a claim that said “water applied for has been abandoned for a period of 4 years.” This application was approved, and permit No. 1352 was issued to Smith on December 31, 1920, by the state engineer, with the following proviso and reservation:

“This approval is specifically subject to the proviso that it is not exercised to the detriment of any others having prior valid and existing rights to the use of the water of this stream system. This application, being for diversion of principally flood and torrential flow, is approved, allowing diversion to the full capacity of the works, providing the amount of water applied shall not be in excess of the equivalent of 3 acre feet per acre delivered on the land.”

In the decree of 1912, it was declared:

That “said waters shall be available to each of the respective parties, as herein fixed, for beneficial use according to and within their respective appropriations, as herein defined, at such seasons and times as may be desired by said respective appropriators; and, in the event of nonuse of any appropriator, the water shall become available to any junior appropriator within the limit herein allowed, and, in the event of nonuse by any of the persons named herein, then to be considered public and unappropriated water, and disposed of as hereinafter provided for.”

Appellee Julian Smith was a party to that decree, but at that time he had a right to, and was adjudged to own one-fifth second foot of water as the third waterright on the stream. The proceeding in which that decree was rendered was in pursuance to the provisions of chapter 49, Laws 1907. The position of appellee Smith in the court below and here is that a forfeiture of this water right has taken place under the statute by reason of the nonuse of the water during the winter season for a period of 4 years, and that Smith has acquired a primary, rather than a subsidiary, right to the water during the winter season.

[1] 1. It may be stated generally that, under the arid region doctrine, uncontrolled by statute, the appropriation of water is accomplished by the taking or diversion of it from a natural stream or other sources of water supply, with intent to apply it to some beneficial use or purpose, and consummated within a reasonable time by the actual application of the water to the use designed, or some other useful purpose. 2 Kinney on Irr. and Water Rights (2d Ed.) § 707; 1 Weil on Water Rights (3d Ed.) § 370; Beers v. Sharpe, 44 Or. 386, 75 P. 717; Gates v. Settlers' Co., 19 Okl. 83, 91 P. 856; Keeney v. Carillo, 2 N. M. 480; Millheiser v. Long, 10 N. M. 99, 61 P. 111; Albuquerque Land & Irr. Co. v. Gutierrez, 10 N. M. 177, 61 P. 357; Irrigation Co. v. McMurry, 16 N. M. 172, 113 P. 823.

Under this doctrine it is quite as necessary to make use of the water as it is to divert it, in fact, no appropriation can be effected without such use. The intent, diversion, and use must coincide.

As a result of this doctrine, there flows naturally and necessarily the further doctrine of periodical or seasonable appropriation. If a farmer makes use of the water for the irrigation of his crops only during the growing season, say from March 15th to October 15th of each year, the same may be appropriated by a mill owner for power purposes, by a placer miner for the washing of his gravel, or by another farmer for irrigation purposes, or by another for storage for future use, during the remainder of the year. This is the established doctrine everywhere, in the absence of statutory regulations. See 1 Weil, Water Rights (3d Ed.) § 305, 2 Kinney on Irr. and Water Rights (2d Ed.) § 786, and 3 Farnham on Water, § 673, where all of these cases are collected from most, if not all, of the Western States.

We have, however, a statute in this state, regulating the acquisition, means, and manner of enjoyment of water rights which controls the whole matter, and which marks a wide departure from the doctrine above stated. It is chapter 49, Laws 1907. This is a comprehensive act, consisting of 73 sections, which are carried forward as sections 5654 to 5729, Code 1915.

In Pueblo of Isleta v. Tondre, 18 N. M. 388, 137 P. 86, we had occasion to give this act a somewhat thorough examination. In that case the question was whether an old community ditch, constructed prior to the passage of the act, was compelled by the terms of the act to apply to the state engineer for a permit to change the point of diversion of such ditch from a natural stream. We held that the act created no such requirement, not...