Spencer v. Bliss, 5911

• Decision Date: 29 July 1955
• Docket Number: No. 5911,5911
• Citation: 287 P.2d 221,1955 NMSC 66,60 N.M. 16
• Parties: G. R. SPENCER, Plaintiff-Appellee, v. John H. BLISS, State Engineer, Defendant-Appellant.
• Court: New Mexico Supreme Court

Page 221

287 P.2d 221

60 N.M. 16

G. R. SPENCER, Plaintiff-Appellee, v. John H. BLISS, State Engineer, Defendant-Appellant.

No. 5911.

Supreme Court of New Mexico.

July 29, 1955.

Richard H. Robinson, Atty. Gen., Charles D. Harris, Sp. Asst. Atty. Gen., for appellant.

Stagner & Sage, Carlsbad, for appellee.

SADLER, Justice.

The State Engineer appeals from a judgment of the district court of Eddy County granting an application of the plaintiff below (appellee here) to change the place or method of use of water from one location to another within the Carlsbad Underground Water Basin.

There were, in fact, two applications, described as Nos. C-223 and C-224. The applications were first filed with the State Engineer, both of which were denied, whereupon the plaintiff appealed from the decision to the district court of Eddy County. The two applications were separately docketed in the district court, but the applicant in both cases being the same and the lands in both the move-from area to the move-to area in each application being a part of the same farm, the appeals were by all parties and the court treated as consolidated for purposes of trial in such court. After hearing in the district court the decision containing the trial court's findings of fact and conclusions of law was duly made and filed. Judgment in conformity therewith having been entered this appeal followed. The findings and conclusions will be summarized.

Two wells in the Carlsbad Underground Water Basin are involved, the first of which was drilled in 1944 to a depth of 300 feet. The plaintiff caused the well to be equipped with pump and thereafter applied water from the well to beneficial use on lands adjacent to it. The capacity of the well was 400 gallons of water per minute, all of which was applied to beneficial use upon the land. This well is identified in the case as Declaration C-223.

In 1947, the plaintiff drilled another well at a location on a certain described 40 acres of land in section 25, township 22 south, range 26 east, N.M.P.M., being in the same section, township and range, as first well. It likewise was equipped with a pump and water applied therefrom to beneficial use on land adjacent thereto. Its capacity was the same as the first well, to wit, 400 gallons per minute, all of which was applied by plaintiff to beneficial use upon said lands.

Following the drilling of the two wells mentioned, the plaintiff filed with the State Engineer declarations of ownership of underground water rights with respect to each of the wells, the first of which was described as C-223 and the second as C-224.

Both wells were drilled prior to the establishment of Carlsbad Underground Water Basin, at a time when no permit was required from State Engineer for the drilling of same, or the appropriation of the waters derived therefrom, the lands of the plaintiff being then located outside any established or declared underground water basin.

At the time these wells were drilled they were used in conjunction with waters derived from the effluent from the sewage disposal plant at the Carlsbad Army Air Field with the waters produced from said air field to irrigate a total of 120 acres of land. In this use the wells were utilized to their full capacity of 400 gallons per minute. The effluent used by the plaintiff from the army air field sewage disposal plant was derived from wells drilled prior to the establishment of the Carlsbad Underground Water Basin. However, they are presently within the boundaries of said basin.

After wells Nos. C-223 and C-224 were drilled, waters from well No. C-223 were thereafter applied to beneficial use on lands belonging to a certain protestant, Allen S. Kaltenbach, which were described in the findings, amounting to 10 acres and were later sold by the plaintiff to said Kaltenbach. (There being no dispute concerning the Kaltenbach acreage, any further mention of it is only incidental to portrayal of the facts.)

After the flow of sewage effluent from the Carlsbad Army Air Field ceased, with the abandonment of the field as an active air base, plaintiff applied to the State Engineer to move the rights initiated by him under both wells mentioned to a certain 58 acres of land in the east half of southeast quarter of section 30, township 22 south, range 27 east, N.M.P.M., approximately a mile and one-half distant therefrom. The applications were both denied by the State Engineer without a hearing. In such applications, the plaintiff expressly exempted the lands and water right under well No. C-223 which had become appurtenant to the lands sold to Kaltenbach.

The moving of water from wells Nos. C-223 and C-224 will not materially affect or impair the rights of persons utilizing wells near the east half of southeast quarter of section 30, township 22 south, range 27 east (the move-to area), or the rights of others in the Carlsbad Underground Water Basin. Nevertheless, it should be stated that the moving of the use of water as requested in plaintiff's application will result in a move to an area in which there are more wells in operation than are operating in the area from which the use of water is now authorized. There is no substantial difference in the water table within the two areas.

On May 19, 1950, the State Engineer advised applicant by letter that his declared water rights would be recognized as valid only so long as, and at times when, sewage was available for diversion and provided always that the sewage water was used to the extent of its availability. The letter further provided that the underground water right was merely supplemental to the sewage source and would become void when and if such sewage source was eliminated. Having made findings of fact as hereinabove summarized, the court adopted its conclusions of law. In them it declared that the drilling of well No. C-223 and the completion of works thereon followed by the application of water to beneficial use therefrom, the plaintiff acquired the legal right to use of waters from said well out of the waters then within the Carlsbad Underground Water Basin to the extent of 400 gallons per minute and became the owner of such right, except for the portion thereof transferred to Kaltenbach.

The court went on to state in its conclusions that by the drilling of well No. C-224, the completion of works thereon and the application of water to beneficial use therefrom, the plaintiff acquired the right to use of waters in Carlsbad Underground Water Basin to the extent of 400 gallons per minute and became the owner of such right. That the amount of water right to which plaintiff was entitled out of wells C-223 and C-224 from the waters of said basin exceeds the amount of water sought to be transferred under the pending applications.

The court also concluded that the transfer of water rights of the plaintiff under such wells in accordance with the pending applications would not operate to impair existing rights but that such transfer, nevertheless, should be subject to prior rights of users of water within the area to which the transfer was sought. Accordingly, the court concluded that the transfers sought of water rights from wells Nos. C-223 and C-224, the move-from area for the irrigation of 58 acres of land described in the move-to area, should be allowed. The court closed its conclusions with the parting admonition that the declaration of the State Engineer in his letter of May 19, 1950, above mentioned, limiting recognition of water rights of the plaintiff was an improper limitation of his water rights under the laws of New Mexico having to do with the appropriation and use of public underground waters.

The attorney general and the special assistant attorney general, representing the State Engineer, have argued the errors assigned under three points. Point No. 1 presents the interesting proposition that on an appeal from a decision of the State Engineer in a matter of the kind before us, he is not to be overruled in his determination of the matter 'unless his acts are unlawful, unreasonable, arbitrary, capricious, or are not supported by evidence.'

Point No. 2 is dual in character. It is to the effect that on an application to change the place of method of use of water an applicant has the two-fold burden of proving (a) the nature and extent of his water rights and (b) that the change will not impair existing rights. Point No. 3 puts forward the proposition that on entertaining the application in the case at bar, the decision of the court was not based on a preponderance of the evidence in plaintiff's (appellee's) favor but actually is contrary to the evidence.

It is readily to be seen from a recitation of the points thus relied upon for reversal, they overlap each other to such an extent that it will simplify the matter for purposes of discussion if we treat them together, actually resolving only such of the questions involved as are deemed necessary to a decision.

It is our considered judgment that sub-section (a) of Point one (1) advanced by counsel for the State Engineer is well taken and must be sustained. It asserts the burden of proof in an application of the kind before us is on the applicant to show the change sought will not impair existing rights. Indeed, as a part of the same point the defendant claims the benefit of this burden as to a showing by plaintiff of the nature and extent of his water rights, arguing strenuously that he has failed in this particular as well.

In this connection defense counsel quote from plaintiff's declarations Nos. C-223 and C-224 of ownership of underground waters to the effect that the wells involved were to be used to supplement the effluent from sewage disposal at Carlsbad Army Air Base, thus not constituting primary water rights. Counsel for State Engineer rely, also, upon other statements in the declarations and as well testimony by plaintiff at the trial touching the extent of use of water from these...