Lindsey v. McClure

• Citation: 136 F.2d 65
• Decision Date: 24 May 1943
• Docket Number: No. 2300.,2300.
• Parties: LINDSEY v. McCLURE, State Engineer of New Mexico.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

136 F.2d 65 (1943)

LINDSEY v. McCLURE, State Engineer of New Mexico.

No. 2300.

Circuit Court of Appeals, Tenth Circuit.

May 24, 1943.

Langdon H. Larwill and Malcolm Lindsey, both of Denver, Colo., for appellant.

A. T. Hannett and M. C. Mechem, both of Albuquerque, N. M., for appellee.

Before PHILLIPS, HUXMAN, and MURRAH, Circuit Judges.

PHILLIPS, Circuit Judge.

Lindsey, as receiver of the San Luis Power and Water Company,¹ a Colorado corporation, brought this action to enjoin McClure from enforcing an order issued by him as State Engineer of the state of New Mexico, prohibiting the Water Company from using certain irrigation works, situate in New Mexico, for diverting, storing, and carrying waters of the Costilla river for use on land situated in Colorado. The trial court sustained a motion to dismiss the complaint, as amended, and entered judgment dismissing the suit.

The facts as alleged in the complaint, as amended, which must be taken as true in the present posture of the action, are these: The Costilla river is an interstate stream. It heads in Colorado, flows in Colorado and New Mexico, crossing the Colorado-New Mexico boundary line three times, and empties into the Rio Grande river in New Mexico. In 1853, a ditch was constructed to carry water from the Costilla river directly to lands in New Mexico and lands in Colorado. The construction of that ditch was shortly followed by the construction of other direct ditches and in the course of a very few years all the available water of the Costilla river, except during times of the spring run-off and floods, had been appropriated for irrigation through the direct ditches. Three reservoirs were also constructed for storing water from the Costilla river for irrigation purposes. These reservoirs are owned by the Water Company. They are Eastdale Reservoir No. 1 and Eastdale Reservoir No. 2, both situated in Costilla County, Colorado, and the Costilla Reservoir situated in Taos County, New Mexico.

On December 2, 1911, a decree was entered in a New Mexico district court which adjudicated the priorities and fixed the priority dates of the water rights under the New Mexico direct ditches. On June 14, 1889, December 14, 1905, and February 11, 1935, respectively, decrees were entered in a Colorado district court which adjudicated the priorities and fixed the priority dates of the Colorado direct ditches and the Colorado reservoirs. By the decree of December 14, 1905, Eastdale Reservoirs, Nos. 1 and 2, were adjudicated to have a priority date of April 21, 1890, by original construction. By the decree of February 11, 1935, they were given additional priority dates of August 6, 1908, and August 22, 1908, respectively, by enlargement. Their priorities by original construction and enlargement were for an aggregate of 6,509 acre feet of water.

After the completion of the enlargement of the Eastdale Reservoirs, the Water Company on August 29, 1911, filed with the then State Engineer of New Mexico, an application for Permit No. 599 to construct the Costilla Reservoir on the Costilla river in New Mexico. It was approved by the then state engineer on April 8, 1912, in the following language:

"This is to certify that I have examined the within application for a permit to appropriate the public waters of the Territory of New Mexico, and hereby approve the same.

"This application is approved subject to all prior valid rights to the use of water of this stream system including those acquired by beneficial use on the Costilla and tributaries as set forth in decisions of the courts; also, provided the total amount that can be appropriated through this permit shall not be in excess of 20,750 acre feet per annum, applicant, however, may appropriate in addition not to exceed 10,000 acre feet per annum of water, which may be conserved by a proper distribution and beneficial use of the quantity being diverted by those specified in the court decrees above mentioned."

The Costilla Reservoir was completed in 1920 and on April 7, 1920, the Water Company applied for final inspection thereof in accordance with the provisions of § 30, ch. 49, N.M.S.L.1907, § 151-139, N.M.S.A. 1929. Since its completion it has been used each year to store water from the Costilla river.

The Costilla Reservoir was formed by the construction of a dam across the river channel high up in the mountains. The water is discharged from the reservoir into the natural channel of the Costilla river and is permitted to flow down such channel until it reaches the plains, known as the San Luis Valley, where it is diverted from the river. Application for Permit No. 599 described the above method of handling the water and stated it would be diverted from the river by the Costilla canal.

On January 30, 1920, the Water Company filed with the then State Engineer of New Mexico its application for Permit No. 1360 for permission to construct such canal, to be known as the Cerro Ditch. It was approved by the state engineer on January 19, 1921, in the following language: "This application is approved provided 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, and in accordance with the terms of the letter of even date, to the applicant, which letter, is by this reference made a part hereof as though set out herewith in full."

The letter referred to, in part, read: "* * * with the further proviso that the said waters herein above approved for the use of irrigation of the land under this project shall be used only on lands situated within the boundaries of the State of New Mexico as per the filing map attached to application for Permit No. 1360 and on file in this office, and shall include the waters covered by Permit No. 599, said Permit and this application being considered jointly herein."

The Cerro Ditch heads at a diversion dam in New Mexico where the river reaches the plains and extends across the state line into Colorado.

The Costilla Reservoir and Cerro Ditch were constructed primarily to effect the appropriation of unappropriated water of the Costilla river for irrigation of lands in New Mexico.

The three reservoirs of the Water Company are the only storage reservoirs under the Costilla river and no water therefrom is stored other than in such reservoirs.

Shortly after the Costilla Reservoir was completed it was discovered that in ordinary years there would not be sufficient water available in the Costilla river, in addition to the water for which earlier priorities existed under the direct ditches, to fill both the Costilla Reservoir and the Eastdale Reservoirs. Because the Costilla Reservoir is situated high in the mountains in a rocky canyon, and the Eastdale Reservoirs are situated on the level plains at lower altitudes, the loss by evaporation and seepage is considerably less from the Costilla Reservoir than from the Eastdale Reservoirs. Shortly after the completion of the Costilla Reservoir, the Water Company began the practice of making the initial storage of water attributable to the priorities of the Eastdale Reservoirs in the Costilla Reservoir, holding such water in that reservoir until about the time it was needed for irrigation and then letting the water down the stream and through the Cerro Ditch for storage in the Eastdale Reservoirs in small quantities, thus utilizing the Costilla Reservoir as the storage reservoir and the Eastdale Reservoirs as regulating reservoirs. The foregoing method of initial storage in Costilla Reservoir of water attributable to the priorities of the Eastdale Reservoirs is a practical operation and results in the conservation and more efficient utilization of water. It does not injure any other appropriator. As a result, a greater amount of land and land at higher elevations in Colorado are being irrigated with the same amount of water. All of such water so initially stored and used is attributable to and used under the priorities of the Eastdale Reservoirs and no part thereof is attributable to the appropriations under the permits.

Under the foregoing method of handling the water, a small but prosperous agricultural community has grown up in Costilla County, Colorado. More than 2,000 acres of land in the neighborhood of the town of Jaroso, Colorado, have been annually irrigated with such water. The future existence of the community is dependent on the continuation of such method of handling the water and such method does not adversely affect the rights of any water user from the Costilla river.

From time to time the Water Company made application to the State Engineer of New Mexico for extensions of time in which to complete the appropriation of water under the permits.²

In the affidavits filed with the applications for extensions from January 25, 1924, to April 6, 1935, inclusive, mention was made of the use of water by colonists, who had settled upon the lands to be irrigated under the permits, and mention was also made of the temporary use of water not needed on the lands designated in the permits, by the owners of other ditches not embraced in the Water Company's irrigation system.

On April 27, 1937, the State Engineer of New Mexico wrote a letter to the Water Company, in which he, in part, stated: "Some years ago the San Luis Water and Power Company as an emergency measure applied water from the Costilla Reservoir in New Mexico upon certain lands within Colorado in the vicinity of Jaroso. However, it was distinctly understood that such use in Colorado was to be temporary only, pending the development of an adequate water supply for the Colorado lands and the placing of farmers upon the New Mexico lands."

The application of water from the Costilla Reservoir to lands in the vicinity of Jaroso was not temporary and was not the temporary use referred to in such affidavits. It was a permanent policy adopted by the Water Company to avoid waste and conserve water.

No conditions...