Murphy v. Kerr

• Decision Date: 20 December 1923
• Docket Number: 942.
• Citation: 296 F. 536
• Parties: MURPHY v. KERR.
• Court: U.S. District Court — District of New Mexico

296 F. 536

MURPHY v. KERR.

No. 942.

United States District Court, D. New Mexico.

December 20, 1923

John F Simms, of Albuquerque, N.M., for plaintiff.

C. J Roberts, of Santa Fe, N.M., for defendant.

PHILLIPS District Judge.

This is a suit brought by the plaintiff against the defendant to quiet the title to a tract of land situated in Eddy county N.M., consisting of a hydroelectric power plant, with dam reservoir, power house, and real estate used in connection therewith, which is more particularly described in the bill herein.

Defendant filed an answer and cross-complaint, in which she alleges that she is the owner of an easement in the real estate described in plaintiff's bill, or right to have water carried from and through the irrigation works situated on the real estate described in plaintiff's bill, to a reservoir situated on her lands, under and by virtue of a deed from Mary E. Tansill, the predecessor in title of the Carlsbad Light & Power Company, to the defendant, which deed conveyed to her certain lands and water rights and contained certain covenants hereinafter fully set out.

Defendant also alleged she had acquired such easement by user.

The parties entered into and filed herein an agreed statement of facts, in which they set out, among others, the following facts:

That the plaintiff, William F. Murphy, is the duly appointed, qualified, and acting receiver of the Carlsbad Light & Power Company, appointed by the above-named United States District Court, in equity suit No. 892, and that this suit was brought by him as such receiver by direction and permission of said court, and as ancillary to said equity suit No. 892; that said receivership is under and by virtue of the laws of the state of New Mexico, and that the plaintiff, as such receiver, holds the title to all of the property, real, personal, or mixed, of said corporation; that prior to the year 1895, one Anna O. Hagerman was the owner of the real estate described in copies of deeds attached to the agreed statement of facts, marked Exhibits A and B, and that said real estate was contiguous, and that the Pecos river flowed through a portion of said lands; that during the time Anna O. Hagerman owned said land, and prior to the conveyance by her of any part thereof, she and her husband, J. J. Hagerman, had and maintained a home and residence upon that portion of the real estate described in the deed marked Exhibit A, and during said time constructed a dam across the Pecos river, upon the lands described in Exhibit 'B,' that said dam, when first constructed, was used for the purpose of providing power for the pumping of water to a reservoir located upon the northeast quarter of the southwest quarter of section 5, township 22 north, range 27 east, in which reservoir waters were stored for the purpose of irrigating said lands described in said Exhibit A; that after the construction of said dam Anna O. Hagerman pumped a portion of the waters impounded by said dam by means of the power generated by waters impounded therein, and used the same for irrigation purposes upon the lands described in said Exhibit A; that on July 16, 1901, Anna O. Hagerman and J. J. Hagerman conveyed to one Robert W. Tansill all the real estate described in said Exhibits A and B, together with the dam and power plant above referred to, and all water rights appurtenant thereto; that thereafter Robert W. Tansill died, leaving a last will and testament, which was duly probated, and which devised the lands described in said Exhibits A and B, together with the water rights appurtenant thereto, to Mary E. Tansill; that Mary E. Tansill continued to generate electricity for power purposes by means of the power afforded by said dam and supplied the same to citizens of Carlsbad, N.M., for light and power purposes, and also used the same to pump water to the reservoir located on the lands described in said Exhibit A; that on the 9th day of May, 1907, Mary E. Tansill executed and delivered to the defendant, whose name at that time was Cesarino A. Lewis, a warranty deed, a copy of which is attached to the agreed statement of facts, being Exhibit A, referred to above, and being the deed referred to in defendant's answer and cross-complaint; that said deed was duly recorded in Book 17 of the records of Eddy county, N.M., at page 390, on June 8, 1907; that Mary E. Tansill continued to own the real estate described in said Exhibit B until July 9, 1919, at which time she conveyed the same, together with the power plant and dam, and all the rights connected therewith, by deeds to the Carlsbad Light & Power Company, a corporation organized by her on November 27, 1917, copies of which are marked Exhibits B, D, and E, and attached to the agreed statement of facts herein, the latter two deeds being correction deeds; that the consideration for such transfer was stock in the corporation; that after the appointment of the receiver herein said receiver refused to supply water to the defendant under the terms, conditions, provisions, and stipulations contained in said deed marked Exhibit A, and still refuses so to do, unless said defendant is willing to pay a reasonable compensation therefor.

The deed from Mary E. Tansill to the defendant, Exhibit A, conveyed certain lands and water rights and contained the following covenants:

'The party of the first part hereby agrees and binds herself, her heirs, executors, administrators, and assigns to have water pumped from the Pecos river at what is known as the Tansill power dam to the reservoir located upon the property herein conveyed not to exceed 8 hours per each day of 24 hours, it being understood that the second party, her heirs, executors, administrators, and assigns, is entitled to have the water pumped as herein provided whenever she so demands of the persons in charge of said power dam and the plant in connection therewith and the party of the first part further agrees and binds herself, her heirs, executors, administrators, and assigns, to make provision for having said water pumped as herein provided by any purchaser, lessee, or lessees of said power plant located as aforesaid to whom she or her successors may sell, rent, or lease the same.

'This agreement to pump water as aforesaid shall be binding upon the first party, her heirs, executors, administrators, and assigns so long as said power dam or any substitute therefor may be maintained by her, her heirs, executors, administrators, and assigns. * * *

'However, the party of the second part, in accepting this deed agrees, obligates, and binds herself, her heirs, executors, administrators, and assigns, to never construct or cause or permit to be constructed across the Pecos river any dam or dams that will abut or join on to the property herein conveyed so long as the Tansill power dam is maintained and operated.'

Pursuant to the terms of said stipulation certain oral testimony was taken at the trial.

Mary E. Tansill and her successor in title, from the date of the deed to defendant to the date of the appointment of the receiver herein, pumped and carried the water from the dam in the Pecos river to defendant's reservoir, in full compliance with the provisions of said covenants.

There is no controversy as to the facts in this case. Two legal questions are presented: (1) Has the defendant any interest in the lands described in plaintiff's complaint? and (2) Do the covenants above set out in the deed from Mary E. Tansill to Cesarino A. Lewis, the defendant, run with the land on which the dam, pumping plant, pipe line, and other irrigation works are situated, so as to bind the plaintiff?

A determination of the main questions involves a consideration of the principles of the law of waters that have been developed in the arid and semiarid states of the West, and the property rights recognized in connection therewith.

Water running in a natural stream belongs to the public. By statutory enactment the states of Arizona, Colorado, California, Montana, Nevada, New Mexico, Oklahoma, Oregon, North Dakota, South Dakota, Texas, Utah, Wyoming, and Idaho have declared in substance that all waters within the state are the property of the public, or belong to the state. The modern expression is that such waters are owned by the state in trust for the people. Wiel, in his Work on Water Rights in the Western States (section 170, p. 193, vol. 1), says:

'Accompanying this view that the law of appropriation rests upon the inapplicability of any other rule are statutes or constitutional provisions expressly declaring that the ownership of all waters is in the state (or in the public). ' In this and other jurisdictions, where the common law in respect to the use of water and the right thereto is altogether ignored, there has been established, either by judicial decision or statute, or both, as an essential principle, that the water of all natural streams is the property of the public or of the state."

See, also, Albuquerque Land & Irrigation Co. v. Gutierrez, 10 N.M. 177, 237, 61 P. 357; Snow v. Abalos, 18 N.M. 681, 140 P. 1044.

A majority of the Western states, including New Mexico, have adopted what is known as the Colorado doctrine. This rule rejects the common-law doctrine of riparian rights in toto and recognizes the doctrine of prior appropriation and application to beneficial use. Wiel on Water Rights, vol. 1, Sec. 118, p. 141; Trambley v. Luterman, 6 N.M. 15, 27 P. 312; U.S. v. Rio Grande, etc., Co., 9 N.M. 292, 51 P. 674; Id., 174 U.S. 706, 19 Sup.Ct. 770, 43 L.Ed. 1136; Albuquerque Land & Irrigation Co. v. Gutierrez, 10 N.M. 177, 238, 61 P. 357; Gutierres v. Albuquerque Land & Irrig. Co., 188 U.S. 545, 23 Sup.Ct. 338, 47 L.Ed. 588; Hagerman Irrigation Co. v. McMurry, 16 N.M. 172, 113...