Reynolds v. Wiggins

• Decision Date: 14 December 1964
• Docket Number: No. 7515,7515
• Citation: 397 P.2d 469,1964 NMSC 252,74 N.M. 670
• Parties: S.E. REYNOLDS, State Engineer, Appellant, v. Max WIGGINS, Appellee.
• Court: New Mexico Supreme Court

Page 469

397 P.2d 469

74 N.M. 670

S.E. REYNOLDS, State Engineer, Appellant, v. Max WIGGINS, Appellee.

No. 7515.

Supreme Court of New Mexico.

Dec. 14, 1964.

Earl E. Hartley, Atty. Gen., Santa Fe, Charles D. Harris, Special Asst. Atty. Gen., Roswell, for appellant.

Hinkle, Bondurant & Christy, Paul W. Eaton, Jr., Roswell, for appellee.

NOBLE, Justice.

Max Wiggins appealed to the district court from an order of the state engineer denying his application to appropriate water from the shallow underground Roswell basin. On review, the district court vacated the administrative order and directed approval of the application. The state engineer has appealed from that judgment.

The Wiggins farm is located in the Roswell Artesian basin adjacent to the Pecos river. Wiggins, who owns all of the drain water flowing into a certain manhole on the D line of the Dexter-Greenfield Drainage District, has used this drainage water for irrigation and now seeks permission to inject it into the shallow water basin through a well and to withdraw an equivalent amount from the underground basin of the same well during the irrigation season. He proposes to install devices to measure both the amount of water contributed to and that withdrawn from the underground basin. For a full description of the Roswell underground basin and of the drainage waters, see Applications of Langenegger, 64 N.M. 218, 326 P.2d 1098.

The Wiggins proposal, however, is not one to deliver his private water into the underground basin to supply appropriations therefrom and to take in exchange an equivalent quantity of water from that basin as Sec. 75-5-24, N.M.S.A.1953 authorizes with surface water. Rather, the applicant recognizes that when privately-owned water reaches an established underground basin, it becomes public water as defined by Sec. 75-11-1, N.M.S.A.1953, and subject to appropriation for beneficial use, State ex rel. Reynolds v. King, 63 N.M. 425, 321 P.2d 200. Accordingly, he readily concedes that he has applied for a new appropriation from the underground basin.

In accordance with Kelley v. Carlsbad Irrigation District, 71 N.M. 464, 379 P.2d 763, the district court reviewed only the record of the administrative hearing and, based upon that record, concluded as a matter of law that the state engineer's action lacked substantial support in the evidence, and that denial of the application was arbitrary and without authority in law. This court, in reviewing the district court's judgment, must, in the first instance, make the same review of the state engineer's action as did the district court. Our review of the record before the state engineer leads us to agree with the conclusion reached by the district court, although perhaps partly upon different grounds.

The application for appropriation of the new right we denied, in part at least, upon the engineer's finding that the water from this source had theretofore been fully appropriated and that granting the Wiggins application 'would impair existing rights.' An examination of Sec. 75-11-3, N.M.S.A.1953, convinces us that it requires the state engineer to issue a permit to appropriate from an underground source if either, (1) there is unappropriated water, or (2) the proposed appropriation will not impair existing rights from such source. Wiggins does not challenge the finding that there remained no unappropriated water in the basin, but does assert that under the facts of his proposal the engineer's finding that granting his application would impair existing rights has no substantial support in the evidence. Even though the underground basin water may have been fully appropriated when Wiggins made his application, this appeal turns on whether, under the...