Martinez v. Martinez, 4709.

• Decision Date: 19 March 1945
• Docket Number: No. 4709.,4709.
• Citation: 49 N.M. 83,157 P.2d 484
• Parties: MARTINEZ et al.v.MARTINEZ et al.
• Court: New Mexico Supreme Court

49 N.M. 83

157 P.2d 484

MARTINEZ et al.

v.MARTINEZ et al.

No. 4709.

Supreme Court of New Mexico.

March 19, 1945.

Appeal from District Court, Taos County; Irwin S. Moise, Judge.

Action by Francisco Martinez y Martinez and others against Malaquias Martinez and others in the territorial district court of Taos county, wherein a decree was entered in 1893 adjudicating rights to the waters of the Rio Lucero, which Manuel de Pineda and Jose M. Quintana sought to enforce by enjoining the Pueblo de Taos from diverting more water than permitted by such decree. From a judgment sustaining plea to jurisdiction, the plaintiffs appeal.

Reversed and remanded, with instructions.

Where territorial district court of Taos county entered a decree adjudicating water rights among Pueblo Indians in an action to which the United States was not a party, state district court of such county as the successor of the territorial court had jurisdiction to enforce such decree.

[157 P.2d 485 , 49 N.M. 84]

Floyd W. Beutler and R. Howard Brandenburg, both of Taos, for appellants.

William A. Brophy, of Albuquerque, and Everett M. Grantham, former U. S. Atty., and Howard F. Houk, U. S. Atty., both of Santa Fe, for appellees. BRICE, Justice.

On the 31st day of July 1893 there was pending in the Territorial district court of Taos County, a suit entitled, ‘Francisco Martinez y Martinez, et al, versus Malaquias Martinez et al, No. 446’ on the docket of that court. On the date named the following decree was entered: ‘This cause coming on to be heard upon the report of the commissioners heretofore named by the court to justly and equitably apportion the waters of the Rio Lucero among the respective claimants thereto, parties to this suit, such commissioners being Juan Santisteven and Alexander Gusdorf, who in such order were authorized to select a third person as umpire should they so desire, and said commissioners having selected William L. McClure as umpire with them and having made report to this court in accordance with such order, the complainants herein being represented by their solicitor Honorable N. B. Laughlin and the respondents by their solicitor Edward L. Bartlett, upon their motion to approve and confirm such report of said commissioners and umpire in the premises: It is now here by the Court, finally ordered, adjudged and decreed; That, the report of such commissioners and umpire in the premises do stand and is hereby in all things approved and confirmed, and in accordance therewith it is further ordered, adjudged and decreed that the people of the Arroyo Seco, Arriba, are entitled to and shall forever have thirty per cent of the total water in the Rio Lucero at all seasons of the year; That the people of the Pueblo de Taos, shall forever have thirty-five per cent of such total water; that the people of El Prado shall forever have and are entitled to thirty-five per cent of such total water of the Rio Lucero. And that in case there shall be any surplus of such waters after supplying the settlement of El Prado and the Pueblo de Taos, the same shall belong to the people of the Arroyo Seco, Abajo, who shall forever be entitled to the same. * * *’

On the 14th day of August 1940 this proceeding was instituted by filing in the same cause an affidavit subscribed and sworn to by Manuel de Pineda and Jose M. Quintana, the substance of which was as follows:

The affiants are a committee representing the community of Arroyo Seco, Arriba, who are the owners of lands with water rights supplied from the flow of the Rio Lucero in Taos County. The Pueblo de Taos is a community corporation existing under the laws of New Mexico and is the owner of community lands with like appurtenant water rights.

This suit (the original action) was instituted to determine the rights to the use of the waters of the Rio Lucero; and the parties, including the Pueblo de Taos, appeared in that cause by their respective attorneys and submitted themselves to the jurisdiction of the court. It was adjudged by the decree of 1893 that appellee, Pueblo de Taos, was entitled to the use of 35 percent of the flow of the Rio Lucero; that the people of El Prado were entitled to the use of 35 percent thereof, and that the people of Arroyo Seco, Arriba, were entitled to 30 percent of the use thereof.

The diversion point of the water is located upon the lands of the Pueblo de Taos, and subject to the control of the Indians comprising that pueblo. Since its entry and until the summer of 1939 the waters of the Rio Lucero were divided as provided by the decree of 1893. In the summer of 1939 the Indians of Pueblo de Taos violated the terms of the decree by diverting and using forty-six and seven-eighths percent of the total water of the Rio Lucero, thereby reducing the water appropriated by the people of Arroyo Seco, Arriba to 18 1/8 percent instead of 30 percent to which they are entitled.

‘That your affiants make this affidavit for the purpose of obtaining an order of this Court requiring the Pueblo de Taos to show cause, if any there be, why the said Pueblo de Taos and the Indians comprising the same, should not be required to comply with the decree of this Court made and entered as aforesaid, and to release to the people of the community of Arroyo Seco Arriba, 30% of the water of said Rio Lucero and to the people of the community of El Prado 35% thereof, retaining unto themselves 35% thereof and no more.’

This affidavit was no doubt intended as an application for an injunction to restrain the appellee from using more than 35% of the waters of the Rio Lucero, and we will so treat it.

On the 18th day of July 1941 the appellee filed its plea to the jurisdiction of the district court to act in the matter, as follows:

‘The Pueblo of Taos appears specially, solely and only for the purpose of suggesting to the Court that this Court has no jurisdiction of the Pueblo of Taos, the Indians comprising the same, or of the subject matter of this proceeding. As grounds showing absence of jurisdiction in the Court the Pueblo of Taos states:

‘1. The Pueblo of Taos is a community of Pueblo Indians in the State of New Mexico and said Pueblo of Taos and the Indians comprising same are in a state of tutelage and are under the guardianship and protection of the United States. All of the lands and the water appurtenant thereto of the Pueblo of Taos and of the Indians comprising said Pueblo are restricted Indian property which cannot be alienated in any wise and are under the guardianship and protection of the United States of America.

‘2. The United States of America has the exclusive jurisdiction and control over the lands and water rights of the Pueblo of Taos and of the Indians comprising said Pueblo, and this Court has no power to change, alter, affect, adjudicate or in any manner determine the rights of the Pueblo of Taos or of the Indians comprising said Pueblo unless by consent of the United States, and the United States has prohibited the alienation of said property in any manner.

‘3. The United States is not a party to this proceeding; it is not represented in this proceeding; it has not consented to the jurisdiction of this Court. The Pueblo of Taos cannot confer jurisdiction upon this Court of the subject matter of this proceeding nor of said Pueblo nor of the Indians comprising said Pueblo.

‘4. Cause No. 1785 in equity entitled the United States of America as guardian of the Indians of the Pueblo of Taos in the State of New Mexico, plaintiff, vs. Preciliano Garcia, et al, defendants, is pending in the District Court of the United States for the District of New Mexico. Said cause is between the parties in this proceeding or their predecessors, involves the same subject matter and a final decree was entered therein April 26, 1929, for the plaintiff. In said decree, among other things, said court adjudicated:

“And the Court, while handing down the foregoing as its Final Decree, retains jurisdiction of this cause for the purpose of making any orders or issuing any writs necessary to give full effect thereto.'

‘5. The Pueblo of Taos is a sovereign governmental body subject to the United States, is not subject to suit in this Court without its consent, and it has not consented to be sued.

‘Wherefore, Pueblo of Taos prays that this proceeding be abated.’

This plea was not answered, although facts were pleaded of which the district court could not take judicial notice. Ruling upon the plea, the district court entered the following order:

‘This matter came on to be heard upon the affidavit of Manuel D. Pineda and Jose M. Quintana, a committee representing the people of the community of Arroyo Seco Arriba of Taos County, New Mexico, the order to show cause heretofore issued by the Court, and the plea to the jurisdiction filed by the Pueblo of Taos. The affiants appeared by their attorney Floyd Beutler, The Pueblo of Taos appeared specially, solely, and only for the purpose of submitting said plea to the jurisdiction by the attorney for said Pueblo of Taos, William A. Brophy. Upon hearing the arguments of the attorneys, the Court finds that the plea to the Jurisdiction should be sustained.

‘It is Therefore, Ordered, Adjudged, and Decreed that the plea to the jurisdiction filed herein by the Pueblo of Taos be and the same is hereby sustained. The affiants except to the action of the court.’

The original pleadings have been lost and we can determine the issues only by reference to the decree of 1893, which was entered by consent. It purported to establish rights to the use of the water flowing in the Rio Lucero in the three parties to the suit, and the portion each was entitled to use. If valid the effect of the decree was to quiet title to the use of the water of that stream. Logan, Hyde Park & Smithfield Canal Co. v. Logan City, 72 Utah 221, 269 P. 776. It appears from the affidavit filed as the basis of this proceeding that the water of the Rio Lucero was apportioned...