Honey Boy Haven, Inc. v. Roybal, 11617
| Decision Date | 22 November 1978 |
| Docket Number | No. 11617,11617 |
| Parties | HONEY BOY HAVEN, INC., a New Mexico Corporation, Applicant-Appellee, v. Juan ROYBAL and Baudilio Bowles, Protestants-Appellants, v. S. E. REYNOLDS, New Mexico State Engineer, Respondent-Appellant. |
| Court | New Mexico Supreme Court |
A petition for rehearing was granted subsequent to our rendering an opinion in Honey Boy Haven, Inc. v. Juan Roybal v. S. E. Reynolds, 17 N.M.St.B.Bull. 2815 (1978). We withdraw our original opinion and substitute the following.
In 1956 or 1957 C. A. Baltzley, the predecessor in interest and president of Honey Boy Haven, Inc. (hereafter Honey Boy) constructed a new point of diversion and ditch on Cow Creek. From 1957 to 1971 he constructed thirteen off-channel ponds, all done without permits from the State Engineer. In 1971 in response to complaints from downstream water users, the State Engineer ordered Mr. Baltzley to cease further diverting, impounding, or using water from Cow Creek. Mr. Baltzley agreed in writing to the request.
On May 4, 1973, Honey Boy, as successor in interest to Mr. Baltzley, filed two water rights applications with the State Engineer. The first application requested a permit to change points of diversion from irrigation ditches located on the bank of Cow Creek to a single point of diversion approximately one mile downstream on the west bank of Cow Creek. The new point of diversion would be located on Honey Boy's property. The second application requested a permit to change the place and method of use of 36.6 acre feet of water per year from the irrigation of 24.4 acres of land to fish rearing, fishing and recreation purposes by supplying water to thirteen ponds having a combined surface area of 5.867 acres and a total capacity of 20.034 acre feet. Notice of the applications was published; the applications were protested by thirty-one members of the Cow Creek Water Rights Association.
During the State Engineer's hearing, Honey Boy withdrew its application to change point of diversion and amended its application to change the place and method of use by slightly reducing the claimed water right acreage. The point of diversion on the application was not, however, amended. On May 6, 1974, the State Engineer entered his findings and order denying the application to change place and method of use. The basis for this denial was that Honey Boy had failed to prove that there existed valid water rights appurtenant to its lands. The State Engineer also found that the irrigation ditches, which were claimed by Honey Boy to have been used to irrigate its lands prior to 1957, had never supplied water to those lands, and that the diversion and use of water through the new point of diversion after 1957 was illegal. Thereafter, on July 12, 1974, Honey Boy filed a notice of appeal from the State Engineer's order in the District Court of San Miguel County.
The principal issues presented to the district court on a trial de novo were: (1) whether Honey Boy's points of diversion could be changed without a permit from the State Engineer; (2) whether the claimed old points of diversion could have irrigated Honey Boy's lands; (3) whether the claimed points of diversion had irrigated Honey Boy's lands at least once every four years during the period 1931 or 1928 to 1957, and (4) whether the diversion and use of water from an unauthorized point of diversion during the period 1957 to 1971 resulted in the forfeiture of the water rights that existed under the old points of diversion. After trial on the merits, the district court entered its decision on June 17, 1977, and ruled affirmatively on each of the first three questions. The judgment, entered on July 19, 1977, granted the application to change place and method of use subject to certain conditions. Notices of appeal were filed by the State Engineer and protestants on August 18, 1977.
Although many other points were raised on appeal, we believe the dispositive issue to be whether or not Honey Boy or its predecessor in interest had to seek prior...
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