N.M. Products Co. v. N.M. Power Co.

• Decision Date: 13 August 1937
• Docket Number: No. 4201.,4201.
• Citation: 42 N.M. 311,77 P.2d 634
• Parties: NEW MEXICO PRODUCTS CO.v.NEW MEXICO POWER CO. et al.
• Court: New Mexico Supreme Court

42 N.M. 311

77 P.2d 634

NEW MEXICO PRODUCTS CO.

v.NEW MEXICO POWER CO. et al.

No. 4201.

Supreme Court of New Mexico.

Aug. 13, 1937.Rehearing Denied March 30, 1938.

Appeal from District Court, Santa Fe County; Otero, Judge.

Suit by the New Mexico Products Company against the New Mexico Power Company and the City of Santa Fe, a municipal corporation. From a judgment of dismissal, the plaintiff appeals.

Remanded, with directions.

The district court had jurisdiction of suit for obstruction of flow and appropriation of waters of creek, notwithstanding that rights to use of waters of creek had not been adjudicated under water code, where plaintiff's right to use water was more than twenty years old when code was enacted. Comp.St.1929, § 151-101 et seq.

Wheaton Augur and J. O. Seth, both of Santa Fe, for appellant.

Francis C. Wilson, John C. Watson, and Earl D. Kenney, all of Santa Fe, for appellees.

HUDSPETH, Chief Justice.

This is a suit for damages brought by New Mexico Products Company, appellant here, against the New Mexico Power Company and city of Santa Fe, appellees, because of the obstruction of the flow and appropriation of waters of Santa Fe creek which appellant and its predecessors in title had put to beneficial use since the year 1885 in the irrigation of 80 acres of land.

The facts alleged in the amended complaint or stipulated in so far as are necessary to be stated follow: That between the years 1603 and 1614 a Spanish settlement was established on the site now occupied by the city of Santa Fe through which ran, as through said city now runs, the Santa Fe creek, which said creek was for said Spanish settlement, as it now is for said city, the source of water supply for the inhabitants; that Santa Fe was from date of its establishment and throughout the Spanish and Mexican rule the seat of the several governments under which the territory of the present state of New Mexico was ruled; that the pueblo of Santa Fe and all the territory involved herein was ceded to the United States by the Treaty of Guadalupe Hidalgo, and since the American military occupation it has been the seat of government of the territory now embraced in the state of New Mexico; that the present inhabitants of the city of Santa Fe are descendants of the inhabitants of the pueblo at the time of the change from Mexican to American sovereignty, together with others who have joined and have been received into said settlement, now city; and that such inhabitants numbered more than 3,000 in the years 1889 and 1891.

The waters of Santa Fe creek have never been generally adjudicated pursuant to 1929 Comp.St., c. 151, art. 1, and appellant did not join as parties, nor endeavor so to join all whose claims to the use of such waters are of record.

“That during the period that said settlement was under the domain of the Spanish Crown, and during the subsequent period that it was under Mexican rule, said settlement was organized and governed according to the form prescribed and observed by said sovereignties respectively, as a Spanish, and later a Mexican, quasi municipal corporation, having a governing body, variously known and designated, and often referred to as, and possessing the functions of ‘Cabildo’ or ‘Ayuntamiento,’ and having a presiding or executive officer generally known and referred to as ‘Alcalde.”’

That the appellee New Mexico Power Company furnished for profit water to the citizens of Santa Fe and to the city of Santa Fe and has for its source of supply of water the Santa Fe creek; that the reservoir and the system of the New Mexico Power Company are located on or near said Santa Fe creek above the point at which the ditches from which the lands of appellant are irrigated join said stream; that the appellee New Mexico Power Company is operating under the terms of a certain franchise passed by the city council of the city of Santa Fe on the 22d of December, 1925; that in said ordinance the said appellee New Mexico Power Company is directed within a period of eighteen months to construct additional reservoir sufficient to satisfy the needs of the city based upon a population of 10,000 people and on an average consumption of 125 gallons per capita. As further provided, New Mexico Power Company shall insure “so far as feasible the normal flow in the channel of the Santa Fe River to the extent of valid existing prior private rights therein.” On the 9th day of November, 1925, application for a permit, the rights of which were subsequently acquired by the New Mexico Power Company, was made to the state engineer of the state of New Mexico, for the right to take and divert all surplus waters of the Santa Fe creek; that thereafter, on the 14th day of July, 1926, a permit was granted by the state engineer to the New Mexico Power Company to take and divert 3,500-acre feet of water upon the express condition that such diversion “is not to be exercised to the detriment of any others having valid prior and existing rights to the use of water of this stream system.” That said New Mexico Power Company, pursuant to said ordinance and said permit, constructed said additional dam and reservoir in the Santa Fe Canyon; that the population of the city of Santa Fe was 7,236 persons in the year 1920, 11,176 in 1930, and about 13,000 during the summer season in the year 1935 when this suit was commenced; that the supply of water in Santa Fe creek varies materially from year to year.

“(a) That the conditions set forth in Paragraph 15a of the amended complaint as to the nature of the water supply, as to its variable sufficiency and as to the conduct or practice of defendant New Mexico Power Company in intercepting the flow, have existed since the year 1927;

“(b) That the physical control of the water flow in question, by defendant New Mexico Power Company, as set forth in Section II, paragraph (1) of the original stipulation, has existed since the year 1927;

“(c) That in the year 1927 defendant New Mexico Power Company erected and completed its dam and reservoir, in compliance with the ordinance of December 22, 1925, and to the satisfaction of defendant City of Santa Fe; that by means thereof it was able to exercise and did exercise control of the water flow as alleged and stipulated; and that no additions were made thereto, nor enlargements of diverting or storing capacity made, until the year 1935, in which year the height of said dam was increased six feet, said enlargement having been completed on or about September first of that year.”

In some years the supply is sufficient to fill and to maintain filled the reservoir of the New Mexico Power Company and still leave a surplus available to the appellant for the irrigation of its lands. In other years the New Mexico Power Company through its dams and reservoirs intercepts the entire flow of the stream and diverts to its own use all of the waters so captured and stored; that the amount of water so captured and stored and so diverted and sold to customers of New Mexico Power Company has increased to a great degree; that during the years 1931, 1932, 1933, 1934, and 1935 such increased consumption has from time to time and from year to year materially and substantially decreased the flow in the Santa Fe creek below the reservoir of the New Mexico Power Company and that by reason of such decreased flow the water available for the irrigation of appellant's land has been likewise materially reduced; that during the years 1931 and 1932 there was only water available for two irrigations in the early spring of about 10 acres of appellant's land, and that there was no other available water except during periods of excess rainfall during the latter part of the summer; that during the year 1933 a small runoff in the spring was used by appellant in irrigating 10 acres and that thereafter no water was available for irrigation of appellant's land except during periods of excess rainfall; that during the year 1934 there was no flow in the stream below the reservoir of New Mexico Power Company and there was no water in Santa Fe creek available for irrigation of appellant's land; that during the year 1935 the runoff of water was substantial and that appellant was able to irrigate 16 acres of its land up to June, but that no perennial flow was available thereafter for the irrigation of said lands and the appellant had to depend upon wells; that the said New Mexico Power Company has damaged and impaired for the years 1931 to 1935, inclusive, appellant's water rights with respect to said lands. That said damage and impairment are continuous wrongs and injuries, impairing and damaging from year to year and from season to season, the use of said lands for irrigation purposes to which the said appellant has used said lands and intends to use them, and that the crops and produce of the said lands of the said appellant for the years set forth are damaged to the extent and in the manner set forth in paragraph 16 of amended complaint.

Demurrers were sustained on 4 grounds. Plaintiff having announced that it would stand on its amended complaint, judgment of dismissal was entered. This appeal followed.

[1] The first assignment of error challenges the correctness of the trial court's ruling that the “pueblo right” as defined in City of San Diego v. Cuyamaca Water Co. et al., 209 Cal. 105, 287 P. 475, Los Angeles Farming & Milling Co. v. Los Angeles, 217 U.S. 217, 30 S.Ct. 452, 454, 54 L.Ed. 736, and other California cases, obtains in this state-the court held in effect that the city of Santa Fe had the right-regardless of the prior appropriation and beneficial use by others-to take from the Santa Fe creek from time to time all the water that may be needed at such time for the use of the inhabitants of said city and for all municipal and public uses and purposes therein.

Appellant urges that the later California cases are without precedent in Spanish law; that the California cities succeeded by...