El Paso & R. I. Ry. Co. v. Dist. Court of Fifth Judicial Dist. Within

Citation36 N.M. 94,8 P.2d 1064
Decision Date30 November 1931
Docket NumberNo. 3662.,3662.
CourtSupreme Court of New Mexico
PartiesEL PASO & R. I. RY. CO. et al.v.DISTRICT COURT OF FIFTH JUDICIAL DISTRICT WITHIN AND FOR CHAVES COUNTY et al.

OPINION TEXT STARTS HERE

Syllabus by the Court.

Statutory suit to adjudicate water rights of stream system held to include claimed rights of appropriators from artesian basin within system (Comp. St. 1929, §§ 151-120, 151-122, 151-128).

District court's jurisdiction in pending suit to adjudicate water rights of stream system held exclusive of jurisdiction of another court to entertain suit of artesian basin appropriators attacking rights asserted (Comp. St. 1929, §§ 151-120, 151-122, 151-128).

In statutory suit to adjudicate water rights in stream system, unknown claimants may be impleaded (Comp. St. 1929, §§ 151-120, 151-122, 151-128).

In statutory suit to adjudicate water rights in stream system, plaintiff's failure to serve or implead claimants cannot defeat exclusive jurisdiction (Comp. St. 1929, §§ 151-120, 151-122, 151-128).

Where statutory suit is pending for adjudication of water rights in stream system, claimants, though not served or impleaded, cannot assert rights elsewhere (Comp. St. 1929, §§ 151-120, 151-122, 151-128).

1. A statutory suit to adjudicate water rights of stream system is all-embracing, and includes claimed rights of appropriators from artesian basin within such system.

2. The jurisdiction of the district court in which is pending a suit to adjudicate water rights of stream system is exclusive of jurisdiction of another district court to entertain suit of artesian basin appropriators attacking right of stream appropriator asserted in adjudication suit or claiming a priority over it.

3. Unknown claimants of water rights may be impleaded in statutory suit for adjudication of water rights in stream system whether suit be instituted by state or by private claimants. 1929 Comp. §§ 151-120, 151-122, construed.

4. In statutory suit for adjudication of water rights in stream system, failure of plaintiff to serve or to implead claimants cannot defeat exclusive jurisdiction of court, which attaches upon filing of complaint, and, while the adjudication suit is open for the assertion of rights, claimants, though not served or impleaded, cannot assert them elsewhere.

Original proceeding by the El Paso & Rock Island Railway Company and another for a writ of prohibition prayed to be directed to the District Court of the Fifth Judicial District within and for Chaves County, and the Honorable H. A. Kiker, sitting as Special Judge of said District Court. On demurrer to the petition.

Alternative writ previously issued made absolute.

Statutory suit to adjudicate water rights of stream system held to include claimed rights of appropriators from artesian basin within system. Comp.St.1929, §§ 151-120, 151-122, 151-128.

E. R. Wright, of Santa Fé, and H. H. McElroy, of San Francisco, Cal., for petitioners.

L. O. Fullen, of Roswell, and W. A. Dunn, of Walnut Park, Cal., for respondents.

WATSON, J.

This is an original proceeding in prohibition. Our alternative writ has stayed further proceedings in a certain cause pending in the district court of Chaves county. The matter is now before us upon demurrer to the petition.

The suit thus interrupted was commenced by Southeastern New Mexico Water Protective Association, alleged to be, for purposes of the suit, representative of all persons owning water rights by appropriation from the Roswell artesian basin, situated in Chaves and Eddy counties; the city of Roswell, a municipal corporation, deriving its water supply from said source; and James P. White, an individual appropriator of such artesian water. These plaintiffs sued for themselves and for others similarly situated, including other municipal corporations.

The defendants named were El Paso & Rock Island Railway Company, owner, and Southern Pacific Company, operator, of a line of railroad from El Paso, Tex., to Pastura, N. M.

The complaint sets up facts showing the existence of the Roswell artesian basin, its extent and sources of supply, the appropriation of water therefrom by the two plaintiffs last named, and others similarly situated, and by the constituent members of the protective association, and that, by reason of drafts already made upon said basin and the sources of its supply, the hydrostatic pressure had been weakened and the water level lowered to the damage of those enjoying rights therein. It proceeds then to allege that in the year 1907 the El Paso & Rock Island Company applied for, and obtained from the territorial engineer, permission to change the point of diversion of five cubic feet of water from the Bonito river, which water rights claimed by the railroad company had been acquired from former appropriators from said river who had used said water for irrigation; that such new use of the water granted by the state engineer involved carrying it out of the Bonito water shed, over a divide, for use as engine water in the operation of trains, as domestic water for the use of local employees of the road, and that it had since been used also as an article of merchandise furnished to individuals and municipalities; that, up to the time of this diversion, and while the waters were still being employed for irrigation in the Bonito watershed, they contributed largely to the recharge of the artesian basin, since all thereof not absorbed by plants or lost by evaporation percolated through the soil, some returning to the stream bed, and some percolating in a general southeasterly direction toward the artesian basin; that such water as returned to the stream bed was again used for irrigation lower down and the process repeated; and, as we understand, that these southeasterly percolations were gathered in the Rio Hondo and its tributary streams, and became an important source of recharge of the basin. A large part of the use to which the railway company has devoted the water since 1907 is attacked as unjustified by the permit and as subversive of the superior rights of the plaintiffs. It is alleged that in 1927 the railway company, on application to the state engineer, obtained a permit to discontinue its then direct diversion of the water and to divert the same thereafter by means of a reservoir to be constructed by a dam in the river. It sets up certain procedural defects, wherefore it is asserted that the state engineer lacked jurisdiction to grant the permit, alleges that the artesian reservoir is recharged principally and supplied with hydrostatic pressure by storm waters that reach the Rio Hondo originating in large part in the drainage area of the Rio Bonito, and that such dam, by stopping storm waters and snow run-off, would greatly damage the plaintiffs. The prayer is for an injunction against diversion by the defendants from the Bonito under their 1907 permit, or at all, that, if the court finds the defendants entitled to divert any waters from the stream, the exact amount thereof be declared and the diversion of all excessive amounts be enjoined, and that, pending the further order of the court, defendants be enjoined from proceeding with the construction of the dam and reservoir.

Defendants, petitioners here, pleaded in abatement the pendency of another suit. That suit had been previously commenced in the district court of Lincoln county by the present petitioners, setting up their water rights, alleging their validity, and praying for a general adjudication of all water rights in the Bonito stream system. It is alleged in the plea that petitioners had made diligent inquiry to ascertain the names of all persons claiming rights in said stream system, and that, so far as ascertained, they had been included as defendants, together with all unknown claimants, that a large number of defendants had been served, had appeared and pleaded, and that plaintiffs were proceeding to complete service on all defendants named and unknown, and that a hydrographic survey of the stream system had already been ordered by the court for the purposes of such adjudication.

The plea in abatement was answered, and, upon findings made by the court, overruled. Here the alternative writ interrupted the proceedings.

It will be convenient hereinafter to refer to the Lincoln county suit as the adjudication suit and to the Chaves county suit as the injunction suit.

On the petition and demurrer, the question is whether the district court of Lincoln county had obtained a jurisdiction which excludes that of the district court of Chaves county. Respondents deny it, both as to the subject-matter and as to the parties. The question of jurisdiction of the subject-matter is fundamental, and the decision of it will have a bearing on the question of jurisdiction of the parties. We therefore vary the order of discussion adopted by counsel for respondents.

As frequent reference will be necessary to the adjudication provisions of our Water Code (1929 Comp., §§ 151-101 to 151-179), we insert them here:

“151-112. Id.-Apportionment of Waters. The state engineer shall have the supervision of the apportionment of water in this state according to the licenses issued by him and his predecessors and the adjudications of the courts. (L. '07, Ch. 49, § 12; Code '15, § 5665.)

“151-118. Survey of Stream-Systems. The state engineer shall make hydrographic surveys and investigations of each stream system and source of water supply in the state, beginning with those most used for irrigation, and obtaining and recording all available data for the determination, development and adjudication, of water supply of the state; including the location and survey of suitable sites for dams and reservoirs and the determination of the approximate water supply, capacity and cost of each. He shall be authorized to cooperate with the agencies of the United States engaged in similar surveys and investigations, and in the construction, of works...

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