State Et Rel. State Game Comm'n v. Red River Valley Co.

Citation182 P.2d 421,51 N.M. 207
Decision Date18 June 1947
Docket NumberNo. 4847,4847
PartiesSTATE et rel. STATE GAME COMMISSION v. RED RIVER VALLEY CO.
CourtSupreme Court of New Mexico

[182 P.2d 424, 51 N.M. 212]

C. C. McCulloh, Atty. Gen., and Harry L. Bigbee, Asst. Atty. Gen., for appellant.

Seth & Montgomery, of Santa Fe, for appellees.

Francis C. Wilson, of Santa Fe, Edwin C. Crampton, of Raton, Simms, Modrall & Seymour and Iden & Johnston, all of Albuquerque, Gilbert & Gilbert, of Santa Fe, and Robert J. Nordhaus, of Albuquerque, amici curiae.

MABRY, Chief Justice.

Appellant brought suit for a declaratory judgment against appellee, a corporation, to determine whether or not it could open to the public for fishing and general recreational use that portion of the Conchas Dam reservoir which has been and now is closed to the public use for such purposes.

The lower court held that various contracts which had been entered into by the State of New Mexico, the United States, and The Red River Valley Company precluded the State Game Commission from being able to legally allow the public to go upon the disputed portion of the lake and participate in fishing or any other recreational activities. The lower court further held that the waters involved were not navigable waters, but did hold that they were, in a limited sense, public waters, and therefore not private waters.

The State appealed from this decision on the primary basis that the waters involved are public waters and therefore the public would, when authorized by the State Game Commission, have the right to use such waters for fishing and general recreational purposes; and that they are also navigable waters (an additional method of determining them to be public waters) and that the various contracts involved and hereinafter to be noticed do not deprive the State Game Commission of its power to allow members of the public to make such recreational use. The State is the riparian owner of a portion of the lake area, and public fishing and recreational privileges are enjoyed as to this limited area, and in an additional area wherein the right to use for recreational purposes was specifically given by appellee; and said areas could afford access to all the water without touching appellee's lands; but it does not own any of the land area where the right to fish and boat is now in question.

The suit thus presents the question of the right of the public, when properly authorized by the State Game Commission, to participate in fishing and other recreational activities in the waters in question. The trial court held that the waters of the reservoir were 'public waters' only in the sense that they were available for appropriation for irrigation, or like beneficial uses, apparently, and that appellee company had never parted with the fishing and recreational rights on the area of the reservoir involved in this proceeding.

In the year of 1936 the United States, acting through the Army Engineers of the War Department, constructed the Conchas Dam across the South Canadian River, just below its confluence with the Conchas River; and, by means of said dam, created what is known as the Conchas Reservoir, flooding areas in the valleys of both the South Canadian and Conchas Rivers.

Prior to the construction of this dam, appellee was the owner of the Pablo Montoya Grant, confirmed to its predecessors in title by act of congress in the year 1869, embracing some six hundred and fifty-five thousand acres of land in eastern San Miguel County, including the land occupied by the aforesaid dam, and all of the area flooded by the aforesaid reservoir and involved in this suit, including the beds of the Conchas and Canadian Rivers, lying within the exterior boundaries of thegrant, except that small portion of the flooded area in the valley of the Canadian River and the Conchas tributary extending outside the boundaries of the grant. Appellee still is the owner of all the said lands within the Pablo Montoya Grant, except as it may have parted with its title by reason of the instruments hereinafter to be referred to. Prior to the construction of the dam, both the Canadian and its tributrary, the Conchas River, were perennial streams or rivers, and, according to the court's finding, non-navigable.

On November 13, 1935, in order to facilitate the construction of the dam, appellee entered into an agreement with the Governor of the State of New Mexico, and members of the Interstate Stream Commission of the state, as trustees for the state, whereby appellee agreed to convey to such trustees a certain area in fee simple as the actual site of the proposed Conchas Dam, thereafter constructed, and also an easement to flood and impound water above the dam on a large tract of land owned by appellee. It was made a condition of such contract that the appellee reserved the right 'to use the areas affected by this indenture for all purposes not inconsistent with the prior rights of the grantees.' This agreement expressly contemplated that all rights so acquired would be at once transferred to the United States, which was done.

On May 8, 1936, appellee executed a further conveyance to the members of the Interstate Stream Commission of the State of New Mexico, as trustees, conveying the right, privilege, power and easement to overflow on account of the construction, maintenance, and operation of the Conchas Dam on the South Canadian River, and to flood and impound water on, and to take and use construction materials from a large area of land, being the same lands as those described in the contract of November 13, 1935. This deed further provided that the easement granted by it is subject to the following reservations and conditions: 'Two. The grantor, its successors and assigns, at all times shall have the right to use the area affected by said easement for all purposes not inconsistent with the prior rights of the grantees.' The area of the Conchas Reservoir involvedin this appeal is included within the area on which the aforesaid easement is granted.

By conveyance, dated May 13, 1936, members of the Interstate Stream Commission, as trustees, conveyed to the United States all rights acquired by the aforesaid conveyance of appellee, dated May 8, 1936, and this conveyance of May 13th was identical with appellee's conveyance of May 8, 1936, so far as the conditions of said conveyance and the rights reserved to defendant are concerned, and appellee's conveyance dated May 8, 1936, and the trustee's conveyance to the United States, dated May 13, 1936, being delivered simultaneously. Pursuant to the aforesaid conveyances, the Conchas Dam was constructed by the Army Engineers of the United States.

About the first of January, 1940, the opening of a part of the Conchas Reservoir to fishing and other recreational uses, and the erection of recreational facilities on the banks of said reservoir, were the subject of conferences with the War Department and state officials. And, on January 25, 1940, appellee conveyed to the United States the fee simple title to 640 acres of land situate on the banks of the reservoir, and in the same conveyance conveyed to the United States 'the right to use for fishing, boating, bathing, and any other recreational purposes, a limited water area of the Conchas Reservoir within the exterior boundaries of the Pablo Montoya Grant, except that portion thereof lying in the valley of the South Canadian River north of a line' described in said conveyance; and this omitted portion is alone involved in this suit. This conveyance of January 25, 1940 was made subject to the reservations and conditions attached to the grant of flowage easement by the deeds for May 8 and May 13, 1936.

Subsequent to appellee's deed of January 25, 1940 and on May 1, 1940, Congress enacted Public Law No. 504, 76th Congress, 54 Stat. 176, authorizing the Secretary of War to grant to the State of New Mexico for public recreational purposes, an easement for the use and occupation of such lands and water areas so owned or controlled by the United States in connection with the Conchas Dam and Reservoir, as the Secretary of War might deem advisable, and under such terms and conditions as he deemed advisable. Apparently pursuant to said Act of Congress, there has been prepared an easement deed, authorizing the State of New Mexico to use for recreational purposes the area conveyed by appellee to the United States in fee simple by the deed dated January 25, 1940 and also the water area covered by said deed.

This so-called easement deed had not been executed by the Secretary of War at the time of the suit but appellant has entered into possession of the areas described in said deed under a verbal understanding with some subordinate official of the War Department; and the public, under rules and regulations imposed by the state authorities, is now enjoying the recreational and fishing privileges on theConchas portion of the lake as though the easement deed had been finally executed. The easement deed from the United States to the State of New Mexico is expressly made subject to the reservations and conditions contained in appellee's deed to trustees, of the date of May 8, 1936, and to the provisions, reservations, and conditions in appellee's deed of January 25, 1940, to the United States, but, by its terms only pertains to a restricted portion of the lake not involved in this action.

The contentions of appellee, supported by the findings and conclusions of the trial court, and as they are challenged by appellant in its assignments of error and argument, may be stated briefly under five points, as follows: (1) Prior to the erection of the Conchas Dam, appellee owned the beds and banks of the South Canadian and Conchas Rivers within the Pablo Montoya Grant and had the exclusive rights of fishing therein; (2) the erection of the dam and the impounding of the waters constituting the Conchas...

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