Martinez v. Cook

• Decision Date: 02 April 1952
• Docket Number: No. 5469,5469
• Citation: 1952 NMSC 34,244 P.2d 134,56 N.M. 343
• Parties: MARTINEZ et al. v. COOK et al.
• Court: New Mexico Supreme Court

Page 134

244 P.2d 134

56 N.M. 343

MARTINEZ et al. v. COOK et al.

No. 5469.

Supreme Court of New Mexico.

April 2, 1952.

Rehearing Denied May 28, 1952.

Harry L. Bigbee, Donnan Stephenson, Santa Fe, for appellants.

Gilbert, White & Gilbert, Santa Fe, for W. P. Cook and Espanola Mercantile Co.

McGHEE, Justice.

This is an action by property owners in the Town of Espanola for damages to buildings and personal property caused by flood waters resulting from a heavy rain being retained on their lots because of the filling in of a claimed natural drainway, the closing of a cut in an abandoned railroad embankment and the stopping up of a culvert across Onate Street which separated the area in which the defendants had their properties and the lands of the individual defendants.

Plaintiffs (appellants here) appeal from an order of the district court dismissing their complaint for failure to state a claim upon which relief could be granted. The individual defendants (appellees here) have filed briefs and orally argued the case, but we have no appearance for the municipality.

The plaintiffs' second amended complaint alleged, in substance, the following: Plaintiffs own dwelling houses and business establishments in the Town of Espanola in an area bounded on the east by Onate Street, on the south by the City Limits, on the north by a street running from Onate Street to the Espanola High School and on the west by a large ditch. The area is so situated and contoured that prior to the acts complained of water drained from a northwesterly direction across the area through a depression or swale in the southeast portion thereof and thence through a culvert under Onate Street. After passing through the culvert, the water entered a natural watercourse or arroyo having clearly defined bed, banks and channel and flowed from that point in the natural watercourse or arroyo across a low or depressed area through the lands of defendant Cook or Espanola Mercantile Co., thence through a cut or trestle in a railroad embankment and finally into the Rio Grande. More than 21 years prior to the filing of this action a railroad company (predecessor in title of individual defendants) constructed the embankment referred to, which ran generally parallel to Onate Street east of the area owned by plaintiffs. The railroad company left a cut or drainageway through the embankment so the flow of water in the watercourse or arroyo was not obstructed. During the spring of 1950 defendants filled in with dirt the low or depressed area between the culvert under Onate Street and the cut through the railroad embankment, thereby obstructing the normal passage of the waters to the river.

The complaint then states: (1) The lands of defendant Cook or Espanola Mercantile Co. were subservient to the dominant estate of plaintiffs, the former being required to allow free drainage of waters from the lands of plaintiffs in the natural watercourse or arroyo, (2) the plaintiffs or their predecessors in title had made continuous, uninterrupted, adverse and exclusive use of the described drainage route for more than 21 years and had acquired a prescriptive right thereto, and (3) the natural watercourse or arroyo was of a permanent character and had drained the area for many years and in reliance thereon, and relying on the defendants not wrongfully obstructing or preventing the flowage of waters in said natural watercourse or arroyo, the plaintiffs, with full knowledge of defendants, proceeded to expend large sums of money in the improvement of their lands, erecting dwelling houses and business structures thereon, and that defendants were estopped to prevent or obstruct the free flowage of waters in the natural watercourse or arroyo.

Lastly it was alleged the defendants negligently or willfully obstructed and dammed up the drainage route in disregard of the rights of plaintiffs and the area owned by the various plaintiffs was flooded after a rain, occasioning severe damage to plaintiffs' properties.

A second count of the complaint is substantially similar to the first count above outlined, except it is predicated upon allegations of drainage through an artificial watercourse or ditch rather than a natural watercourse or arroyo. However, in addition to the alternative statement and claim as to the artificial watercourse or ditch, the second count alleges the defendant Town of Espanola was negligent in filling in the drainage route in that it failed to provide adequate or sufficient means for drainage of normal waters from the area. It further states the defendant Town of Espanola was negligent in that the acts complained of were done pursuant to a plan for the drainage of the area which was palpably insufficient and inadequate and the plan was adopted and put into effect without aid or advice of skilled advisors.

The divergent views of the parties appearing here as to the right of drainage of flood waters are aptly illustrated by the opening statements in their briefs:

The plaintiffs say:

'* * * Under no known theory of law may a lower proprietor dam up a natural watercourse, cast waters back upon upper proprietors to their damage, and still escape with impunity. It is uniformly and universally held that such an act gives rise to an action for damages.

'As previously pointed out, it was specifically alleged in the First Count that the waters from the area where the Appellants owned their buildings and conducted their businesses flowed from the area in a natural watercourse. Appellant can discover no authority contrary to the universal rule to the effect that he who obstructs a natural watercourse must respond in damages to those injured by his acts. It is stated in 56 Am.Jur. 'Waters,' Section 12, page 501, that: 'It may here be stated generally that one who, either without authority or in the negligent exercise of a legal right, interferes with the flow of a natural watercourse is responsible for any damage proximately resulting therefrom to other persons."

The defendants, Cook and Espanola Mercantile Company, answer by saying the trial court did not err as claimed, stating:

'By the second amended complaint appellants claim certain rights in and to an alleged natural water course situate upon the land of appellees Cook and Espanola Mercantile Co: namely, to have surface waters on appellants' lands, which do not border the lands of these appellees, drain into an alleged natural water course through an artificial drainageway across intermediate land. To support appellants' complaint they cite 56 Am.Jur. to the effect that a riparian proprietor has the right to have the water of a stream flow to and from his land in its natural state and the lower riparian proprietor cannot obstruct the water and cause it to back upon and injure the proprietors above.

'No fact is alleged in the complaint to bring the appellants within this rule of law. 'Subject to certain exceptions hereinafter noted riparian rights subsist only for riparian proprietors, and those who do not own or control riparian land cannot claim them." 56 Am.Jur. Waters Sec. 283, p. 735.

'The amended complaint states that appellants' land is bordered on the East by Onate Street through which the surface water flowed and thence onto the lands of these particular appellees and into a natural or artificial water course thereon. 'While there is some authority to the contrary the majority of courts have followed the rule that land which is separated from water by a highway or street the fee of which is in the public is not riparian land." 56 Am.Jur. Waters Sec. 280, p. 733.

The rule contended for by the defendants applies, we believe, to the ordinary riparian rights to take water from the stream for domestic or agricultural purposes, or to operate mills, where such rights obtain. It cannot be the law in this region of mountains, hills, arroyos and heavy flash floods that because a narrow strip of land, a road or a street separates an upper and lower owner of a natural drainage way or watercourse the lower owner may with impunity build dams and back up the water on the lands of the upper owner. Many of our roads follow the course of arroyos and often cross them many times, usually on bridges or culverts. With the county or state owning the right of way and the lands of an upper owner being thus separated from the arroyo, enormous damage could be caused the lands of noncontiguous owners at the whim or caprice of the lower owner should he decide to dam the arroyo, all without right of action by the injured party if the defendants be right in their position as stated above.

We believe this controversy first requires a determination of the true rule in New Mexico with regard to surface waters and what constitutes a watercourse.

It is agreed by all parties that so long as such waters are in a diffused state and have not reached a natural drainage way or watercourse, an upper landowner may not by artificial means collect and throw them on his lower neighbor in a manner in which they would not flow except for such action.

The first reported case arising in New Mexico on surface waters is Walker v. New Mexico & S. P. R. Co., 7 N.M. 282, 34 P. 43, Id., 165 U.S. 593, 17 S.Ct. 421, 41 L.Ed. 837. Unfortunately, the case in our territorial court was decided on the constitutionality of a practice statute instead of upon its merits. The Supreme Court of the United States did consider the case on its merits, but felt as we had adopted the common law as the rule of practice and decision (Ch. 2, Sec. 2, Laws, 1876) as construed in Browning v. Browning's Estate, 3 N.M. (Gild.) 659, 9 P. 677, that in the absence of a statute on surface waters it should apply the common law which, it erroneously stated, was the 'common enemy' doctrine. It there held a railroad company which had by its roadbed blocked channels leading from mountain arroyos was not liable for flooding upper lands with waters which would, except for the...