Jaquez Ditch Co. v. Garcia

• Decision Date: 05 May 1912
• Citation: 17 N.M. 160,124 P. 891
• Parties: JAQUEZ DITCH CO. et al.v.GARCIA et al.
• Court: New Mexico Supreme Court

17 N.M. 160

124 P. 891

JAQUEZ DITCH CO. et al.

v.GARCIA et al.

Supreme Court of New Mexico.

May 5, 1912.

Syllabus by the Court.

Where the question involved was whether a certain arroyo was or was not a natural water course, and the court below found “that the arroyo was not a permanent or natural stream or water course in which water runs during the entire year, being a dry arroyo carrying only such waters as may be designated as surface or flood waters,” and dismissed the cause on this ground, held error.

Where surface water in ahilly region of high bluffs seeks an outlet through a gorge or ravine during the rainy season and by its flow assumes a definite and natural channel, and such has always been the case so far as the memory of man runs, such accustomed channel through which the water flows possesses the attributes of a natural water course. The flow of the water need not be continuous, and the size of the stream is immaterial.

Appeal from District Court, San Juan County; McFie, Judge.

Action by the Jaquez Ditch Company and others against Leonor Garcia and others. Judgment for defendants, and plaintiffs appeal. Reversed and remanded.

Where surface water in a hilly region or high bluffs seeks an outlet through a gorge or ravine during the rainy season and by its flow assumes a definite and natural channel, and such has always been the case so far as the memory of man runs, such accustomed channel through which the water flows possesses the attributes of a natural water course. The flow of the water need not be continuous, and the size of the stream is immaterial.

This case comes to this court from the First judicial district court of the county of San Juan. It was brought by the plaintiffs below, appellants in this court, who compose the Jaquez Ditch Company. The suit was brought by the company and the individual members thereof to enjoin the defendant from obstructing the course of the arroyo, alleging it to be a natural water course, which arroyo the defendant is alleged to have obstructed a few yards below a point where it crosses the canal or ditch of the plaintiffs. It is alleged that this obstruction causes the arroyo to fill up and damage the plaintiffs' ditch and the adjoining property of the individual plaintiffs. The prayer of the complaint was for a mandatory injunction restraining the defendant from continuing his obstruction of the natural water course, and for damages. The defendant answered, denying the arroyo was a natural water course, and that in its natural channel it crossed the defendant's land, or that in its natural course it touched the land of the defendant. The facts upon which the case rests, as far as they are material to its decision, are as follows: The plaintiff company owns an acequia or irrigating canal taking water from the San Juan river on the north side thereof, watering land belonging to various parties. The defendant Leonor Garcia owns 40 acres of land, the north boundary of which is approximately 100 feet south of the ditch at a point where the controversy arises. One of the plaintiffs, David Trujillo, owns 40 acres just north of the Garcia 40 and through which the ditch runs. The Garcia 40 and a large part of the Trujillo 40 are in what is known as the “bottom land,” and the line of the hills bordering this valley land crosses the Trujillo 40, so that part of this 40 lies in the valley and part in the hills. The arroyo comes down through an opening in the hills upon this Trujillo 40, and, as claimed by the plaintiffs, crosses the line of the Jaquez ditch and the Garcia 40, and empties into the San Juan river. It is admitted by the pleadings that the defendant by means of a tight fence and trees set close together obstructed this arroyo on his north line, but he testified and claims that the obstruction which he made was solely for the purpose of protecting himself against the water. The appellees filed no brief in this court, and their position is not made clear, but it is evident from the record that one of the principal points in dispute was the true course of the arroyo. On this point the evidence was conflicting, but the court below did not decide this, but held that the arroyo in question “is not a permanent or natural stream or water course in which water runs during the entire year, being a dry arroyo carrying only such waters as may be designated as surface or flood waters,” and dismissed the case.

Argued before ROBERTS, C. J., PARKER, J., and RAYNOLDS, District Judge.Perkins & Main, of Durango, Colo., and Hanna & Wilson, of Santa Fé, for appellants. J. M. Palmer, of Farmington, and A. J. Abbott, of Santa Fé, for appellees. RAYNOLDS, District Judge (after stating the facts as above).

Appellants assign error as follows: (1) That the trial court erred in finding that the Garcia arroyo carried only flood waters or surface waters, and that the law applicable to surface waters governs this case; (2) that the trial court erred in finding that under the issues as raised by the pleadings the question of surface waters was to be considered at all; (3) that the trial court erred in not holding that under the pleadings the defendants were estopped from asserting or claiming the waters of the Garcia arroyo were surface waters; (4) that the trial court erred in not granting the injunction asked for and compelling the defendant Garcia to remove the dam he had constructed across the Garcia arroyo; (5) that the trial court erred...