Middle Rio Grande Conservancy Dist. v. Chavez

• Court: New Mexico Supreme Court
• Writing for the Court: MABRY, Justice.
• Citation: Middle Rio Grande Conservancy Dist. v. Chavez, 44 N.M. 240, 101 P.2d 190, 1940 NMSC 16 (N.M. 1940)
• Decision Date: 06 March 1940
• Docket Number: No. 4506.,4506.
• Parties: MIDDLE RIO GRANDE CONSERVANCY DIST.v.CHAVEZ et al.

44 N.M. 240

101 P.2d 190

MIDDLE RIO GRANDE CONSERVANCY DIST.

v.CHAVEZ et al.

No. 4506.

Supreme Court of New Mexico.

March 6, 1940.Rehearing Denied April 24, 1940.

Appeal from District Court, Bernalillo County; George W. Hay, Judge.

Suit for injunction and damages by the Middle Rio Grande Conservancy District, a corporation, against Emilio Chavez and others. From a judgment for the defendants, plaintiff appeals.

Reversed and remanded with directions.

Where commissioners and mayordomo of community ditch acquired by conservancy district refused to permit water user who paid all assessments due from him to the district to receive water unless he should first pay assessments which officers of community ditch had attempted to levy against him, conservancy district was “proper party” to enforce by injunction its right to control the flow of the water in the ditch and to deliver it to the person entitled thereto, notwithstanding that water user was suffering some denial of right because of his failure to get water. Comp.St.1929, §§ 30-308, 30-310, 30-311, 151-501 to 151-514.

Stanley W. P. Miller and George R. Craig, both of Albuquerque, for appellant.

Barnes & Corey and Jay Turley, all of Albuquerque, for appellees.

MABRY, Justice.

This cause arose over conduct of defendants herein, two of them purporting to act as commissioners and the other as mayordomo, of the Los Chavez acequia or ditch, a community acequia or ditch, within the exterior boundaries of the Middle Rio Grande Conservancy District, wherein it was attempted to deny plaintiff the right to supply from such ditch to one Santiago Salas, a water user under the ditch in question, water for use upon his immediately adjoining land unless he should first pay certain assessments which the defendant commissioners had attempted to levy against him.

The parties will hereinafter be referred to as plaintiff and defendants, the designations they bore in the court below, and the said Santiago Salas, as the “water user”. The Los Chavez acequia, or ditch, will be denominated “ditch”.

The broad question presented in this appeal is whether under Chap. 140, Laws of 1923, as amended by Chap. 45, Laws of 1927, Chap. 30, N.M. Comp.St. 1929, generally known and hereinafter to be referred to as the “Conservancy Act”, plaintiff corporation does not have exclusive jurisdiction over the matter of the management and control of the main ditches and acequias within the area covered by the official plan of the said Conservancy District, and to what extent may the ditch commissioners acting under authority of the familiar community ditch law, Secs. 501 to 514, Chap. 151, Comp.St. 1929, control or interfere with the delivery of water through and out of the main ditches or acequias intended for the water users of any community thereunder.

The water user here referred to, though he had paid all assessments due from him and upon his land to the plaintiff corporation, he had resisted the efforts of the defendants claiming to act for the community as ditch commissioners, and the mayordomo, acting under directions of the commissioners, to themselves collect from him certain assessments, the payment of which were by the defendants made a prerequisite to his receiving water through the said ditch. When the agents and employees of the plaintiff corporation undertook to open the “take out” gate, constructed in the sides of and which is a part of the ditch itself, to permit the water user to receive water, defendants met the agents and employees with force and denied it the right to do so. A suit in injunction and for damages against defendants resulted, and judgment below was for defendants. Plaintiff prosecutes this appeal.

No damages were attempted to be proven by plaintiff, and only the question of whether such interference with plaintiff's operation of the ditch should have been enjoined is before us.

It is conceded that the said water user had paid all assessments due the plaintiff district and was entitled to have the water furnished and delivered to the “take out” gate from which the water would flow immediately upon his land, unless, because of Chap. 151, Secs. 501 to 514, N.M. Comp.St. 1929, the old community ditch law, the plaintiff district does not have exclusive control of the said ditch and unless the said water user must, as a further prerequisite to obtaining water, also respond to assessments made against his land by those acting as commissioners under said last mentioned act.

It is not deemed necessary for the purposes of this case to do more than briefly refer to the history of irrigation and conservancy legislation in New Mexico. Our reports are replete with cases interpreting legislation adjudicating water rights under both the territorial and state governments. Albuquerque Land & Irrigation Co. v. Gutierrez, 10 N.M. 177, 61 P. 357; Leyba v. Armijo, 11 N.M. 437, 68 P. 939; Candelaria v. Vallejos, 13 N.M. 146, 81 P. 589; Hagerman Irrigation Co. v. McMurry, 16 N. M. 172, 179, 113 P. 823; Turley v. Furman, 16 N.M. 253, 262, 114 P. 278; Jaquez Ditch Co. v. Garcia, 17 N.M. 160, 124 P. 891; Pueblo of Isleta v. Tondre, 18 N.M. 388, 137 P. 86; State v. Tularosa Ditch, 19 N.M. 352, 143 P. 207; In re Dexter-Greenfield Drainage Dist., 21 N.M. 286, 154 P. 382; State v. Aztec Ditch Co., 25 N.M. 590, 185 P. 549; Farmers' Development Co. v. Rayado Land & Irrigation Co., 28 N.M. 357, 213 P. 202; State v. District Court, 31 N. M. 82, 239 P. 452; and numerous others, including the more recent cases arising under plaintiff Conservancy District legislation and hereinafter cited.

We find our early territorial legislature of 1851-52 laying down simple principles of irrigation law, establishing rights in ditches or acequias and defining what are public ditches or acequias, see Chap. 151, N.M. Comp.St. 1929, supra. These rights have remained substantially unchanged through the years.

The Middle Rio Grande Conservancy District was organized under authority of a legislative act of 1923 (Chap. 140, Laws 1923) for the general purpose of preventing floods, drainage of lands, and incidentally providing for a system of furnishing and carrying water to lands for irrigation. This act was thereafter supplanted by Chap. 45, Laws 1927, Chap. 30, N.M. Comp.St. 1929 but with changes unimportant to a consideration of this case.

Long prior to the organization of plaintiff district and for generations, the Los Chavez ditch had served the community of that locality and it was recognized as such and operated as a quasi-public corporation under the old and well established community ditch law. The land owners elect their commissioners at regular intervals and they in turn employ a “mayordomo”, or manager, to administer the ditch and direct all work in connection with obtaining water therefor, cleaning, repairing, or enlarging the same. Plaintiff District under the Conservancy Act, organized after 1923, may be said to be an endeavor, so far as the irrigation feature of the undertaking is concerned, to more profitably and economically serve the lands susceptible of irrigation and drainage within the district. There arises, then, under the circumstances here presented the question: Who owns or controls such main irrigation ditches? No question arises as to any individual landowner under the ditch losing any water right under the Conservancy Act, the organization effected thereunder or by decree of court.

Likewise, there is presented no question touching upon the right to manage or control any of the side or lateral ditches, not a part of the official plan of the district, the ownership and control of which is admittedly in the land owners.

It is conceded that since the organization of the Conservancy District and during the time in question, plaintiff district has had full and complete charge of the Los Chavez ditch, assessing all landowners thereunder using or having the right to use water therefrom, as under the official plan of the district provided; and such district has assumed the task and responsibility of furnishing water from the appropriation and supply to this and all other users thereunder through the said ditch and that plaintiff was ready and willing to furnish such water at the time in question. The practice generally observed since the District's organization seems to have been for plaintiff to employ the Los Chavez ditch commissioners, or the land owners thereunder, in the performance of much of the work required for the repair and upkeep of the ditch, though plaintiff has at all times maintained supervisory control and direction thereof. This may account for the considerable lapse of time before this challenge of the ownership or right of control is presented.

It is further conceded that the assessment undertaken to be levied by the defendants, the “commissioners”, was not for any work required to be done upon the Los Chavez ditch in question. All expense in connection with the maintenance and operation of this ditch, as with all other main ditches under the district's plan, is borne by the district and paid for by assessments levied upon lands benefited. The assessment sought to be charged, and collected, and for the non-payment of which said water user was denied the right to receive water from the said ditch, was for attorney's fees incurred in some matter of litigation in connection with some undertaking of the ditch commissioners, if indeed, that could present a different situation, which it probably could not. Attorney's fees, properly chargeable, are assessable by the ditch commissioners if they still have authority to make payment of assessment of any character, a condition precedent to a land owner's right to receive water from plaintiff district. State v. Casados, 27 N.M. 555, 202 P. 987.

It becomes necessary therefore to examine into the two acts in question, the Conservancy Act above mentioned, Chap. 30, N. M.Comp.St.1929, and the Community Ditch Law, §§...