Snow v. Abalos

• Decision Date: 20 April 1914
• Docket Number: No. 1626.,1626.
• Citation: 140 P. 1044,18 N.M. 681
• Parties: SNOWv.ABALOS ET AL.
• Court: New Mexico Supreme Court

18 N.M. 681

140 P. 1044

SNOW

v.ABALOS ET AL.

No. 1626.

Supreme Court of New Mexico.

April 20, 1914.

Syllabus by the Court.

Chapter 1, S. L. 1895, “An act in regard to community ditches and acequias,” was purely administrative, and while section 1 of said act makes community acequias corporations, “for the purpose of this act,” the Legislature did not confer upon the organization thus created the power to acquire or hold title to water rights. Such corporations have no powers not expressly or impliedly granted them by the act creating them.

The history of community acequias considered.

In New Mexico, the “Colorado Doctrine,” as it is termed, of prior appropriation prevails. Such doctrine was established or founded by the custom of the people, and grew out of the conditions of the country and the necessities of the people. It was recognized by the courts of the territory and became the settled law.

An appropriator of water does not acquire a right to specific water flowing in the stream, but only the right to take therefrom a given quantity of water, for a specified purpose.

The intention to apply water to beneficial use, the diversion works, and the actual diversion of the water, all precede the actual application of the water to the use intended, but it is the application of the water, or the intent to apply, followed with due diligence toward application, and ultimate application, which gives to the appropriator the continued and continuous right to take the water.

Under a community ditch, each water user, by application of the water to a beneficial use, acquires a right to take water from the public stream or source of supply, which right is a several right, owned and possessed by the individual user, notwithstanding the fact that the ditch through which the water is carried to his land may have been constructed by the joint labor and money of the individual appropriator, in conjunction with others similarly situated, and the act of 1895, supra, did not change the status of the individual consumer.

While a ditch, through which water is carried for the irrigation of lands owned by the constructors in severalty is owned and possessed by the parties as tenants in common, the water rights acquired by the parties are not attached to the ditch, but are appurtenant to the lands irrigated, and are owned by the parties in severalty.

While section 1, c. 1, S. L. 1895, makes all community acequias corporations, for the purpose of that act, such law did not divest the individual water users of any rights of property which he theretofore owned or possessed.

The right to divert and utilize water acquired by the individual water user under a community acequia, being a several right, such individual consumer is a proper and necessary party in an action for the adjudication of water rights, utilized through such community acequia.

The fact that a water user may have entered into a contract, by which he agrees, at some future time, to convey his water right to another party, does not militate against his right to maintain an action for the adjudication of his right to the use of water.

Additional Syllabus by Editorial Staff.

The “appropriation of water” consists in the taking or diversion of it from some natural stream, or other source of water supply, pursuant to law, with intent to apply it to some beneficial use, which intent is consummated within a reasonable time by the actual application of all of the water to the use designed, or to some other useful purpose.

Appeal from District Court, Dona Ana County; before Justice Medler.

Action by Oscar Snow against Francisco Abalos and others. From judgment for defendants, plaintiff appeals. Reversed, with directions.

That a water user may have contracted to convey his water right to another at some future time, does not deprive him of his right to sue for an adjudication of his right to use the water.

This action was instituted by appellant in the district court of Dona Ana county, for the purpose of securing an adjudication of the rights of all water users, taking water from the Rio Grande river below the Elephant Butte Dam, in that portion of New Mexico embracing what is known as the “Rio Grande or Elephant Butte Irrigation Project.” The purpose of the action is to secure a judicial determination of the priorities of all the existing rights to the use of water within said district, in advance of the completion of said dam by the United States government. Some 7,000 claimants, or alleged claimants, are made parties defendant. The complaint, briefly summarized, was as follows:

Alleged residence of plaintiff in Dona Ana county, and his ownership in fee simple of 966.95 acres of land, which was specifically described.

Paragraph 2 alleged that such lands could not be successfully cultivated without the application of water from sources other than from natural rainfall.

Paragraph 3 alleged that the Rio Grande river is a natural stream, flowing in such manner that such waters might be diverted and made to flow to and upon the lands of plaintiff.

Paragraph 4 alleged that: “In the year 1850 the then owners and occupants of the lands of plaintiff hereinabove described, they being the predecessors in interest of plaintiff, diverted, and caused to be diverted from said Rio Grande river, sufficient of its unappropriated waters to irrigate the aforesaid lands by making a reasonable use of such waters, and which quantity was requisite and necessary for the proper irrigation of such lands, to wit, an aggregate of 690 inches, miner's measurement, as defined by chapter 49 of the Acts of the Thirty-Seventh Legislative Assembly of New Mexico, continuous flow, delivered on such lands. And thereupon and thereafter, by means of headgates, an irrigation ditch and other works constructed by such predecessors in interest of plaintiff and other owners of land in said county of Dona Ana similarly situated, who organized and composed and thereafter continuously maintained, operated, and utilized for the purposes aforesaid, what was then, ever since has been, and now is, known as the ‘Mesilla Community Ditch,’ plaintiff's said predecessor in interest caused the waters, so appropriated and diverted as aforesaid, to flow and otherwise to be conducted to and upon the aforesaid lands of plaintiff, whereby said lands were irrigated and rendered productive of valuable crops; that plaintiff's said predecessors in interest thereafter continued so to divert and cause to be diverted, and to conduct and cause to be conducted, said quantity of water from said Rio Grande river, requisite and necessary for the proper irrigation of the hereinabove described lands, and did continuously utilize said water in irrigating said lands, and thereby produce valuable crops thereon; that immediately therefrom and continuously thereafter, and claiming through said original owners, plaintiff and his mesne grantors from said original owners have, ever since said year 1850, continuously diverted, and caused to be diverted, from said Rio Grande river the aforesaid quantity of water, requisite and necessary for the proper irrigation of said lands, and have continuously conducted, and caused same to be conducted, to and upon said lands in the manner and by the means aforesaid, and there used the same for the irrigation and benefit of said lands ever since the said year 1850, by reason and by means whereof valuable crops have been and are being produced thereon.”

Paragraph 5 alleged adverse claims by defendants.

Paragraph 6 alleged, in substance, that the lands referred to are situated within the district, the irrigation of which is contemplated by means of the irrigation system commonly known and designated as the “Rio Grande Project,” contract covering the construction of which has heretofore been entered into between the United States and the Elephant Butte Water Users' Association.

In paragraph 7 plaintiff asked leave of the court to insert the names of, and to make additional parties defendant, any other persons, firms, or corporations subsequently discovered to be claimants of any right adverse to the aforesaid rights of plaintiff.

Plaintiff prayed that his right to divert the quantity of water mentioned might be established, and that the several defendants be barred and forever estopped from having or claiming any right or title in or to the use of such waters adverse to the plaintiff, and that the respective rights of the several parties defendant in and to the waters of said river might in like manner be ascertained, fixed, declared, and established. Plaintiff also asked for general relief.

Among the defendants are divers community ditches, one thereof being the Mesilla Community Ditch.

W. W. Cox, one of the individual defendants, interposed a demurrer upon the grounds: “(1) That there is a defect in the parties plaintiff, in that the complaint shows upon its face that plaintiff has not been, and is not now, nor have his predecessors in interest been, appropriating or diverting any waters from the Rio Grande river in any quantity whatever, but it appears on the face of the complaint that whatever right or interest in and to any diversion or appropriation of waters of the Rio Grande river the plaintiff may now have, or he or his predecessors in interest may have had, is by reason of and by virtue of certain appropriations and diversions of the waters of the said Rio Grande river made by the Mesilla Community Ditch. (2) That it appears on the face of the complaint that the Mesilla Community Ditch, being a corporation under and by virtue of the laws of the state of New Mexico, and being trustee for the plaintiff, is the real party in interest in any cause or action to determine and adjudicate any rights that plaintiff may have by reason of the beneficial use of any waters appropriated and diverted as alleged in the complaint. (3) That it appears on the face of the complaint that no cause or reason...