Millheiser v. Long

• Decision Date: 03 May 1900
• Citation: 10 N.M. 99,61 P. 111
• Parties: MILLHEISER et al.v.LONG et al.
• Court: New Mexico Supreme Court

10 N.M. 99

61 P. 111

MILLHEISER et al.

v.LONG et al.

Supreme Court of the Territory of New Mexico.

May 3, 1900.

Syllabus by the Court.

1. Capacity of ditch alone does not constitute a valid appropriation of water, unaccompanied by application of the water to some beneficial use.

2. Where two ditches are receiving water from the same stream,-one constructed in 1885, and the second in 1888,-the owners of water rights in the first at the time the second is constructed have a prior appropriation of so much water as has been actually applied by them to some beneficial purpose: but sales of water rights by them, for the use of water to be conducted through the first ditch in excess of valid appropriation by the owner of water rights in the first ditch, after water has been diverted and beneficially applied through the second ditch, is void as to such excess, as against the rights of valid appropriators through the second ditch.

3. Where the controversy involves the prior appropriation of water between those claiming water rights in two ditches constructed at different times, proof which fails to show what tract or tracts of land water was conducted upon, how much of the land, for what years, and what portion each year, is not sufficiently specific to base a decree upon as to the prior appropriation of the water, where numerous tracts of land, and 10 years' time, are involved.

4. Where, in a cause tried by the court without a jury, the court fails to find material facts, which, being considered, demonstrate that the decree rendered in the court below was manifestly wrong, this court will consider such facts, to enable the court to arrive at a just conclusion.

5. The doctrine of prior appropriation governs the distribution of water in this case.

Appeal from district court, Chaves county; before Justice H. B. Hamilton.

Action by Philip Millheiser and others against Leslie M. Long and others. Judgment for defendants, and two of the complaints appeal. Reversed.

This cause was tried before Hon. H. B. Hamilton, at the time judge of the Fifth judicial district, who decided the issues in favor of the defendants below (appellees in this court), and dismissed the bill, with judgment for costs against complainants. Two of the complainants have brought the case to this court by appeal. This is a suit in equity, by which the complainants in the court below sought to establish rights claimed by them to the use of water from the Rio Hondo, in Chaves county, by virtue of an alleged appropriation for agricultural and horticultural purposes by the plaintiffs and their grantees through and by means of a ditch known as the “Perry-Fountain,” and various laterals, constructed in the spring of 1888. It is alleged that the complainants had improved and cultivated 320 acres of land owned by them, and had appropriated water to this land from the Hondo river. The defense is that in 1884 Leslie M. Long, Thomas Long, and Scott Truxton constructed a ditch from the Hondo river several miles above the mouth of the Perry-Fountain ditch; that the Long-Truxton ditch had a capacity sufficient to carry all of the water of the Hondo at its normal flow; that, by the construction of a dam in the river which diverted all of its waters into the Long-Truxton ditch, the Longs and Truxton thereby had a prior appropriation of all the waters of the river. The defendants Leslie M. and Thomas Long further allege that in the year 1884 they, together with Scott Truxton and Marguerite M. Long, made entry of about 3,000 acres of land under the homestead, pre-emption, timber-culture, and dessert-land laws of the United States; that they began to improve and cultivate this land from year to year, and that they had applied the waters of the river to about 200 acres of their land; that they had a prior right to all of the waters of said stream as against the complainants. Defendant Haynes asserts a prior right to water through the Long-Truxton ditch by virtue of a purchase of Truxton's timber-culture claim by him. The Pecos Irrigation & Improvement Company alleges that on the 19th day of December, A. D. 1887, the said Leslie M. Long, Thomas Long, and Scott Truxton, the owners of said Long-Truxton ditch, granted and conveyed unto Nathan Faffa and William S. Prager the right to use and convey by means of irrigation ditches all the water carried by the said Long-Truxton ditch, said water to be taken from said ditch at a point on the east line of the W. 1/2 of the N. E. 1/4 of section 3, in township 12 S., of range 23 E., N. M. P. M., and also at a point on the west line of the S. W. 1/4 of said section 3, which right was subsequently, and prior to the institution of this suit, acquired by this defendant, and which right is still owned by this defendant. The defendant the El Capitan Orchard Company joins in the answer of the Longs, and as to it the answer says: “These defendants, Leslie M. Long, Thomas Long, and the El Capitan Orchard Company, deny that Leslie M. Long, or any one else interested in the Long-Truxton appropriation of water from the Hondo, has transferred and delivered any part of their appropriation of water to the El Capitan Orchard Company. That water from the Hondo, in flood times (and there was abundance of water for all interested in the Hondo appropriation), has been used by the said El Capitan Orchard Company through the Long-Truxton Ditch, and with the consent of said Leslie M. Long and Thomas Long, and at several times, even when crops and growth at the Long ranch, on the Rio Hondo, were suffering for water, with the consent of the said defendants water was used by the El Capitan Orchard Company.” The bill further alleges that the Longs and Truxton abandoned any appropriation of water which they may have made, by their failure to cultivate their lands and apply the water thereto from year to year in good faith, and also by selling and conveying to divers other persons and corporations named in the bill all of their rights and interest in the water flowing through the Long-Truxton ditch, and the use thereof. The bill further alleges collusion between the Longs and the orchard company to deprive complainants of the use of water of said stream appropriated by them, and prays for an injunction against these acts, and that the right of plaintiffs to the use of the water be decreed to be superior to the rights claimed under the said Long-Truxton ditch, and that the right and title of plaintiffs be quieted as against all claims of the El Capitan Orchard Company, and all other person or persons, individual or corporations, claiming a right to the use of the waters of the Rio Hondo through the said Long-Truxton ditch, and for general relief. The bill was filed November 14, A. D. 1896, but the trial did not begin until the 25th day of March A. D. 1897. On the 29th day of March, A. D. 1898, the court filed its decree dismissing complainants' bill, each of the parties paying one-half of the costs. From this decree Philip and Moses Millheiser appeal to this court.

Where the controversy involves the prior appropriation of water between those claiming water rights in two ditches constructed at different times, proof which fails to show what tract or tracts of land water was conducted upon, how much of the land, for what years, and what portion each year, is not sufficiently specific to base a decree upon as to the prior appropriation of the water, where numerous tracts of land and ten years' time are involved.

Frank Springer, A. A. Jones, and A. J. Nesbit, for appellants.

G. A. Richardson, for appellees.

McFIE, J. (after stating the facts.)

As a basis for the decree rendered in the court below, the court made numerous findings of fact and conclusions of law, all of which were duly excepted to, of which the following are deemed essential to the present review: “(1) That the defendants herein, in conjunction with certain other persons, did in the year 1884 take out, build, and construct a ditch from the south bank of the Hondo river, and did by means of said ditch divert and appropriate water from said stream for agricultural and domestic purposes; that said ditch was constructed of sufficient capacity to carry all the water then flowing in said Hondo river at its normal flow, or during the irrigation season. (2) The court both further find that the said ditch, when so completed, in the year 1885, conveyed all of the water which flowed in said Hondo river during the irrigation season; that the said ditch has not, since its construction, been enlarged. *** (5) The court both further find that the said defendants have never, since the date of their said appropriation of said water and the location and improvement of said land, abandoned or given up the same, but continued to use and apply said water upon said land, and have continued to occupy, live upon, cultivate, and improve the said land. (6) The court both further find that the said defendants, from the time of the diversion and appropriation of said water, have continued, with diligence, from year to year thereafter, to cultivate, improve, and apply the water from said ditches to said land, and that during the irrigation season it required all of the water originally appropriated by said defendants for use in the cultivation of their said lands. (7) The court both further find that the grantors of the complainants herein also went upon the said stream in the year 1888, and located upon certain lands, and took out a ditch as mentioned and described in the bill of complaint herein; that the grantors of the complainants took up certain lands, and sought to apply the water so diverted from said ditch to the cultivation and improvement of said lands. (8) The court both further find that the appropriation and diversion of the water, so made by said complainants' grantors in the year 1888, was made subsequent to the time of the diversion, appropriation, and application of the water of...