La Mesa Cmty. Ditch v. Appelzoeller

• Decision Date: 28 April 1914
• Docket Number: No. 1622.,1622.
• Citation: 19 N.M. 75,140 P. 1051
• Parties: LA MESA COMMUNITY DITCHv.APPELZOELLER ET AL.
• Court: New Mexico Supreme Court

19 N.M. 75

140 P. 1051

LA MESA COMMUNITY DITCH

v.APPELZOELLER ET AL.

No. 1622.

Supreme Court of New Mexico.

April 28, 1914.

Syllabus by the Court.

No remedy is provided for the collection of assessments levied by acequia commissioners, under the provisions of paragraph 11 of the Compiled Laws of 1897, as amended by section 1, c. 44, S. L. 1903, except the deprivation of the delinquent party of the right to the use of water until payment is made, and the community officers are necessarily confined to the remedy given.

Where a party is in default in the payment of such an assessment, and has been notified not to take and use water until such assessment is paid, and such delinquent consumer, in violation of such order, takes and uses water, he is guilty of a misdemeanor. It is no defense, in a prosecution for such misdemeanor, to allege and prove that the assessment so levied and not paid by the water user is excessive.

In an action for injunction it is essential that the complaint disclose facts in order to enable the court to determine from the facts so alleged the necessity of awarding the extraordinary remedy of injunction. The naked allegation, that great and immediate irreparable damage will result to the plaintiff, unsupported by any facts, is not sufficient. The complaint must show how, in what way, and for what reason the threatened damages are irreparable.

The unlawful diversion of water from a community acequia or the naked trespass, unaccompanied with great or irreparable damage or mischief will not warrant equitable relief, as the statute affords an ample remedy.

Equity will not interfere to prevent the commission of a crime. It will, however, intervene to protect property and property rights from irreparable injury, even though the acts sought to be enjoined are criminal acts. But the court will not award equitable relief merely because the acts complained of constitute a violation of a criminal statute.

When the complaint fails to state a cause of action, and clearly shows that, upon the case as stated, the plaintiff cannot recover, and the demurrer of the defendant thereto is overruled, he may answer upon leave and go to trial, without losing the right to have the judgment upon the verdict reviewed for the error in overruling the demurrer. The error is not waived by answer, nor is it cured by verdict, where the defects in the complaint are not supplied by the evidence.

While the filing of a cross-bill, founded on matters of equitable cognizance, will cure any defects of jurisdiction under the original bill, and authorize the granting of relief to any party entitled thereto, still, if the cross-bill fails to state grounds for equitable relief, the defect is not cured.

Courts of equity will not sit in review of the proceedings of subordinate political or municipal tribunals, and where matters are left to the discretion of such bodies, the exercise of that discretion in good faith is conclusive, and will not, in the absence of fraud, be disturbed.

A counterclaim, under the Code, must be intended to answer the complaint, and must run counter to plaintiff's demand, in whole or in part.

Appeal from District Court, Dona Ana County; E. L. Medler, Judge.

Suit by the La Mesa Community Ditch, a corporation, to enjoin Nicholas Appelzoeller and others from using water contrary to orders of commissioners and mayordomo. From judgment for plaintiff, defendants appeal. Reversed, with directions.

Where a party is in default, in the payment of such an assessment, and has been notified not to take and use water until such assessment is paid, and such delinquent consumer, in violation of such order, takes and uses water, he is guilty of a misdemeanor. It is no defense, in a prosecution for such misdemeanor to allege and prove that the assessment so levied and not paid by the water user, is excessive.

Holt & Sutherland, of Las Cruces, for appellants.

Young & Young and J. H. Paxton, all of Las Cruces, for appellee.

ROBERTS, C. J.

This is a suit brought by the La Mesa Community Ditch against a large number of water right owners in the ditch to restrain them from using water contrary to the orders of the commissioners and mayordomo. Among other things, the complaint alleges that on December 2, 1912, the commissioners of the ditch made an assessment for each day's fatigue current for the following year, “to provide funds for the payment of the salary of the mayordomo and other legitimate expenses incident to the proper conduct and maintenance of the ditch for 1913,” and that such assessment was necessary for the purposes mentioned; that due notice of the assessment was given to, and demand for the payment of same made upon, all water right owners; that defendants failed and refused to pay the assessment; that, to wit, May 9, 1913, plaintiff ordered defendants not to take or use water from the ditch until the assessment was paid; that defendants continually thereafter took and used such water, and threatened to continue so doing contrary to such orders, “to plaintiff's great and irreparable damage”; and that plaintiff had no adequate remedy at law in the premises. The complaint was verified, and upon the ex parte showing thus made a preliminary injunction was issued, together with an order to show cause. To the complaint defendants interposed a demurrer, upon the ground that it did not state facts sufficient to constitute a cause of action, because, among other reasons specified, it appears from the allegations of the complaint that plaintiff was not without an adequate remedy at law, as the statute of New Mexico prescribed a specific remedy for the wrong complained of by plaintiff. The demurrer was overruled. Defendants thereafter filed an answer to the merits, and by way of cross-bill or counterclaim attempted to secure affirmative relief against the plaintiff: (1) To prevent plaintiff from closing down their various headgates and depriving them of the use of water, because of the alleged illegality of the assessment; and (2) to compel plaintiff to reconstruct the intake and a portion of the main ditch, theretofore alleged to have been washed out by floods. The ground set forth, as a predicate for the alleged illegality of the assessment, was as follows: “That as cross-complainants are informed and believe, and therefore aver, said cash assessment in the amount aforesaid was not necessary for the payment of the salary of the mayordomo of said community ditch and other legitimate expenses incident to the proper conduct and maintenance of said community ditch, but was, and is, largely in excess of the amount required for such purposes.” A demurrer was interposed to each of said cross-bills, which was sustained as to the second and overruled as to the first. Thereupon reply was filed by the plaintiff, and the cause proceeded to trial. The court held that the burden of proof was upon the defendants upon their cross-bill, and after defendants introduced their evidence, judgment was entered for the plaintiff, enjoining defendants from using water until their assessments had been paid. From the judgment so rendered this appeal is prosecuted.

Appellants have assigned and discussed in their brief many alleged errors relating to rulings of the court upon the pleadings and the trial of the cause. We shall confine our attention, however, to the pleadings, for our conclusions thereon will dispose of the controversy.

[1] In order to arrive at an understanding of the questions involved, it is perhaps advisable to set out the sections of the statute which gave rise to the controversy, as the proper solution of the questions presented depend, more or less, upon the proper construction of these statutes.

Paragraph 11 of the Compiled Laws of 1897, as amended by section 1, c. 44, S. L. 1903, in part, reads as follows: “The commissioners shall assess fatigue work or task of all parties owning water rights in said community ditches or acequias, and shall have power to contract and be contracted with and also to make all necessary assessments to provide funds for the payment of the salary of the mayordomo and other legitimate expenses incident to the proper conduct and maintenance of the acequias under their charge, and also to make contracts for obtaining water for irrigation purposes in connection with their ditches, such contracts to be ratified by a vote of a majority of the owners of water rights in said ditches; and shall have a general charge and control of all affairs pertaining to the same, together with the power to receive money in lieu of said fatigue or task work at a price to be fixed by them; and shall, immediately upon taking office, provide by-laws, rules and regulations not in conflict with the laws of the territory for the government of said ditch or acequia, and a printed copy thereof shall be furnished to each owner of a water right in said ditch.”

Section 13, C. L. 1897, as amended by section 2, c. 44, S. L. 1903, reads as follows: “Any person, not the owner or duly authorized representative of the owner, of a water right in said ditch, or any such owner or representative, who shall contrary to the orders of the mayordomo or commissioners, cut, break, stop up, or interfere with said acequia, or any contra or lateral acequia thereof, or take or use water from the same contrary to such orders, shall be guilty of a misdemeanor, and upon complaint made before the nearest justice of the peace, a warrant shall issue for his arrest, as in the case of any other offense against the territory, and upon conviction the defendant shall be fined in a sum of not less than ten dollars nor more than fifty dollars and in default of the payment of said fine shall be confined in the county jail for a period of not less than five nor more than thirty days. And it is hereby made the duty of the mayordomo of any such acequia, to prosecute in the name of the territory of New Mexico any violation of this section w...