State ex rel. Erickson v. McLean

• Decision Date: 28 January 1957
• Docket Number: No. 6095,6095
• Citation: 308 P.2d 983,1957 NMSC 12,62 N.M. 264
• Parties: The STATE of New Mexico on the relation of John R. ERICKSON, State Engineer, Plaintiff-Appellant, v. Joe P. McLEAN, Defendant-Appellee.
• Court: New Mexico Supreme Court

Page 983

308 P.2d 983

62 N.M. 264

The STATE of New Mexico on the relation of John R. ERICKSON State Engineer, Plaintiff-Appellant, v. Joe P. McLEAN, Defendant-Appellee.

No. 6095.

Supreme Court of New Mexico.

Jan. 28, 1957.

Rehearing Denied April 3, 1957.

Richard H. Robinson, Atty. Gen., Charles D. Harris, Spec. Asst. Atty. Gen., Jack L. Love, Spec. Asst. Atty. Gen., for appellant.

G. T. Watts, Roswell, for appellee.

LUJAN, Chief Justice.

Plaintiff as appellant before this court instituted this action in the district court for Chaves County alleging therein that the defendant was illegally irrigating certain land situated in said county from an artesian well in the Roswell Artesian Basin, and praying for injunctive relief.

The defendant by his answer denied all the material allegations of the complaint and the issues so drawn were whether a valid right existed in the defendant to irrigate the land in question and whether he was applying the said water to a beneficial use.

The case was tried to the court without a jury and at the conclusion of all of the evidence the court resolved the issues in favor of the defendant and entered judgment accordingly. Plaintiff appeals therefrom.

The court among other things, found:

'4. That all of the lands described in Plaintiff's complaint were watered from waters of the artesian basin on and prior to 1931.

'5. That the underground waters of the artesian basin were beneficially applied to all of said lands on and prior to August 21, 1931.

'6. That the source of the water supply from which said lands were beneficially irrigated was derived from a certain artesian well located on approximately the common section line between Section 27 and Section 34, Township 9 South, Range 24 East, designated as RA-226 in the office of the State Engineer of the State of New Mexico.

'8. That there has not been a period of four successive years subsequent to 1931, that any of the lands described in plaintiff's complaint have not been beneficially irrigated from waters derived from the Roswell Artesian Underground Basin.

'10. That the Office of the State Engineer of the State of New Mexico had knowledge by and through its underground water supervisors of the use to which said waters were being applied, and no action was taken by the Office of the State Engineer with relation to its said use and application until just prior to the commencement of this action.'

The evidence in the record wholly fails to sustain findings Nos. 5, 6 and 8, insofar as they relate to the beneficial use of the water in question.

The issues of fact revolve around the nature and extent of artesian water used upon defendant's land. Said use prior to 1940 is shown as follows:

Oscar White, testifying for the defendant stated substantially as follows: That he had known the land for 55 or more years; that a man by the name of Brown was in possession of the land in question and that he ran the water away from the well down a ditch and it scattered out for his horses; that he was pretty sure that the old ditches were still visible twelve years ago; that he could not say how many acres were watered from the overflow of the well. When asked to give his best judgment, he said there must have been 250 to 300 acres. On cross-examination he stated:

'There has not been any land cultivated around the Brown well for a long time. In 1925 it showed very plainly some cultivation but began to have grass to grow around on the land.'

He further testified that the well was used to make fresh water for the horses and that Brown used the well to irrigate the grass for his horses in the dry years but that he did not know how much land was irrigated.

Buck Spurrier testified substantially as follows: That he had lived in Roswell since about 1925 and that he was familiar with the land in question; that the well flowed in the winter time but that he did not see any farming until Mr. Deering came back; that he could not state the number of acres over which the water was flowing; that he did observe some old ditches on the land and that the water flowed for ten to twelve years in the winter time after he came to this country in 1925; that he did not ever see the well flowing in the summertime, nor did he ever see a pump on it, nor did he ever see any of the land cultivated; that there were no valves on the well and that he never saw anyone directing the flow of the well, nor did he see any irrigators.

In discussing the beneficial use of applying water to salt grass, he stated that it would be best to graze salt grass in the spring when it was young and that salt grass does not grow in the wintertime; and that he did not consider irrigation of salt grass would be an efficient use of water.

On cross-examination he stated that if it did not cost anything to produce the water and it was flowing freely, it would be profitable to water the grass at that time. He also stated that there was sacaton or tubra grass growing in that area.

Miles Wiggins testified substantially as follows: That he had moved in 1919 to the farm adjacent to the land in controversy; that he was acquainted with the well; that as far as he knew, he did not remember anybody farming that place right at that time but it was a flowing well and that the water was flowing out; and that as far as he knew, it was just running out on the grass; and that he did not know how much of the area was covered with the water but knew that the water was running all over the place.

Joseph M. Day testified that he became acquainted with the well in 1925 and 1926 that in 1926 or 1928 he saw a hole in the casing and water was running out of the hole; that there was no way that the water could be cut off, although he seemed to recall that there was a gatehead on top of the casing.

A. C. Stowall testified substantially as follows: That he first became acquainted with the land in question in 1930, that he went on the land sometime in the fall and that he did not think the well was flowing at that time; that after 1930 it flowed every year as it flooded the country around it and people would have to go around it; that Mr. Deering put a pump on the well that controlled the flow to where it did not flow wild any more.

Mr. Harvey L. Deering testified that he leased the place in 1930 and bought the land in 1933; that the water would only flow in the fall and spring and that in 1933 he started to spread the water over the grass; that he had discussed the validity of the water right with an attorney who is now deceased; that said attorney stated that he would go into partnership with him if he would put in a shallow well and put in more land; that he decided not to go into partnership with the attorney; that the water started flowing in October and ran until about April and made a marsh on the land to such an extent that he and his wife would stick and have a time getting out; that water would stand over it for days at a time; that until 1940 there was no valve on the well and there was a big hole in the casing where it had rotted out.

The history of the land and well subsequent to 1940 was given by the defense witnesses Mr. Deering and Mr. Joe P. McLean and by evidence offered by the plaintiff. Mr. Deering testified that in 1940, he put a pump on the well and plowed up approximately 45 acres during that year and that he continued to let the water, run out on the grass.

Joe P. McLean testified that he did not know how many acres he had dried up and changed to other locations but that he had made some changes in the land on which water was applied; that he had purchased the land on November 18, 1948 and that since that time he had allowed the water to flow from the well over the grass east and south of the well; that he had completed or drilled two wells on the land in question in 1949, and had drilled them without a permit; that he understood it was all in the deal and that nobody had to have a permit.

E. G. Minton, Jr., the ground water supervisor testified that he had gone upon the lands in question first in 1940; that the entire tract was in native grass; that there was no land that showed any indication of having ever been farmed even though he made a thorough investigation of Sections 26, 27, 34 and 35, Township 9 South, Range 24 East; that on June 12, 1940 he wrote Mr. Deering telling him that a personal inspection of the land owned by him in the north half of Section 35 revealed that approximately 25 acres of grazing land had been plowed and was in cultivation; that on June 29, 1940, Mr. Deering purchased 10 acres of water right and made application to move them to the NW 1/4 of Section 35, Township 9 South, Range 24 East, to be irrigated from well M-19 and that said application was approved by the State Engineer; that at the time the application was approved well M-19 was designated RA-226; and that the conditions of the approval for the permit to change place of use read in part as follows:

'* * * and further provided: All rules and regulations of the State Engineer pertaining to the drilling of wells be complied with, and 'That no increase of use of artesian water be made other than the 30 acre feet per annum, fixed as the duty of water, on the 10 acres above described."

Mr. Minton further testified that on April 26, 1941, he wrote Mr. Deering and advised him that he was irrigating approximately 45.5 acres of land and that his application was approved for only 10 acres and that he had exceeded the permitted use by 35.5 acres.

Under points one, two and three, the plaintiff argues (1) that artesian water rights are forfeited by failure to apply same to beneficial use for four consecutive years; (2) that the water from the artesian well in question was allowed to waste and to discharge unnecessarily upon the surface of the ground by means of a leaky casing, lack of effective valve to control the flow, and lack of a constructed irrigation system without the constant supervision...