State ex rel. Reynolds v. Lewis, 9201

• Citation: 1973 NMSC 35, 508 P.2d 577, 84 N.M. 768
• Case Date: April 05, 1973
• Court: Supreme Court of New Mexico

Page 577

508 P.2d 577 84 N.M. 768 STATE of New Mexico, et rel. S. E. REYNOLDS, State Engineer,
Plaintiff-Appellee and Cross-Appellant,
Pecos Valley Artesian Conservancy District, Plaintiff-Appellee,
v.
L. T. LEWIS et al., James Thigpen et al.,
Defendants-Appellants and Cross- Appellees.
STATE of New Mexico, et rel. S. E. REYNOLDS, State Engineer,
et al., Plaintiffs,
v.
HAGERMAN CANAL CO. et al., Defendants. No. 9201. Supreme Court of New Mexico. April 5, 1973.

[84 N.M. 769]

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McAtee, Marchiondo & Berry, E. Douglas Latimer, Albuquerque, for appellants and cross-appellees.

David L. Norvell, Atty. Gen., Paul L. Bloom, Peter Thomas White, Special Asst. Attys. Gen., Santa Fe, for State Engineer.

John F. Russell, Roswell, William M. Siegenthaler, Artesia, for Pecos Valley Artesian Conservancy District.

OPINION

MONTOYA, Justice.

On April 9, 1956, the State Engineer and Pecos Valley Artesian Conservancy District (Pecos Valley) filed a petition initiating the L. T. Lewis case in Chaves County, New Mexico. Plaintiffs requested that the court require defendants to describe what rights, if any, they had to the use of the waters of the Roswell Underground Water [84 N.M. 770]

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Basin, and that the court quiet title to defendants' appropriation and use of such water. On October 21, 1958, plaintiffs filed a petition initiating the Hagerman Canal Company case in Chaves County, and requesting the court to enter a declaratory judgment determining the water rights of defendant canal company and its contractual purchasers. In both cases, plaintiffs requested the court to enjoin all illegal uses of underground water. In 1965, the two causes were consolidated. During the period from 1956 to 1965, over 2000 defendants were joined and, through a special master appointed by the court, 1900 sub-file orders were entered adjudicating established individual water rights.

In February, 1965, plaintiffs filed a motion requesting the court to set a date for final hearing to approve and confirm the orders adjudicating the water rights of defendants in the Lewis and Hagerman Canal Company cases. In May 1965, certain defendants filed a motion to modify and amend the special master's report and to stay final determination of water rights. In June 1965, plaintiff Pecos Valley filed its response to a previous motion for setting a date for final hearing, said response asking that the confirmation of the special master's adjudication be held in abeyance. Pecos Valley's response also requested that the defendants be allowed to present evidence on the duty of water. The motion to modify and amend was denied on October 28, 1965.

In October 1965, plaintiff State of New Mexico submitted a proposed partial final judgment and decree. Plaintiff Pecos Valley filed objections to the proposed decree. Defendants, Aaron, et al., also filed objections to the proposed final decree and requested that the court find the sub-file orders invalid insofar as they purported to determine the maximum duty of water. Defendants further asked that the court reserve jurisdiction to hear evidence on the duty of water. At the final hearing, the court denied the objections and motions of defendants and Pecos Valley, and entered a partial final judgment and decree confirming and approving the sub-file orders. The partial final judgment and decree confirmed and approved the sub-file orders adjudicating the water rights of the defendants; it required the defendants to install measuring devices to measure diversion from wells; required appointment of a water master by the state engineer; retained jurisdiction to determine water rights of the United States and other defendants who may be made parties, and to enter such supplementary orders as might be necessary for enforcement and modification of the court's decree. Various defendants appealed from that partial final judgment, and some of those appeals have been determined. See State v. Allman, 78 N.M. 1, 427 P.2d 886 (1967); and State v. Crider, 78 N.M. 312, 431 P.2d 45 (1967).

Pursuant to the partial final judgment, in March 1966, the court appointed a watermaster to inspect and approve the installation of water meters, supervise water use, and enforce the adjudicated sub-file orders through contempt proceedings. In 1968, due to the untimely death of the originally designated trial judge, by order of this court another judge was designated to preside over the consolidated cases.

In December 1969, Pecos Valley filed an amended motion requesting the court to modify the partial final judgment and decree in order to establish the duty of water at three-acre feet per annum, measured at the point of beneficial use on the land, rather than at the well, and to be granted carriage loss for transportation of water between the well and the point of delivery upon the land. Plaintiff State of New Mexico filed a response to the amended motion opposing the Pecos Valley motion. Certain defendants filed petitions requesting an increase in the duty of water above the three-acre feet per annum, and requesting a hearing at which evidence could be presented.

In January 1970, the trial court heard legal arguments on Pecos Valley's amended motion and determined that said motion [84 N.M. 771]

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could not be disposed of on the basis of legal argument, and ordered that the motion be set for trial and that evidence could be submitted on all appropriate issues, including that of the proper duty of water.

In May 1970, the court entered its amended decision. The court concluded that it had jurisdiction for the purpose of establishing the proper duty of water. It found that the sub-file orders entered by the special master were not completely consistent as to the establishment of the duty of water, and that the language of the partial final judgment and decree was somewhat ambiguous. The court further found that the evidence was generally consistent with the sub-file orders and also with a duty of water of three-acre feet per annum, and that there should be added a six-inch carriage loss as compensation for loss from the well to the place of delivery upon the land, and further provided that the duty of water and the carriage loss allowance should be measured at the well.

Following the decision, plaintiff State of New Mexico moved to alter or amend the judgment, which motion was denied in July 1970.

It is from the trial court's amended decision that this appeal and cross-appeal arise.

Appellants in this case, Thigpen, Lewis, et al., were defendants in the original proceeding wherein water rights were adjudicated by the sub-file orders, partial final decree and the amended decision. Their principal contention in this appeal is that the establishment of the duty of water at three-acre feet per annum with a six-inch carriage loss is reversible error, because the ruling limiting the duty of water to three-acre feet per annum is a denial of due process by unconstitutionally taking their property without just compensation and due process of law.

Cross-appellant State of New Mexico advances several contentions in seeking reversal of the amended final decision. First, cross-appellant claims the trial court erred by assuming jurisdiction to grant a new appropriation of public water in violation of the constitutional doctrine of separation of powers. Second, it is contended that the partial final judgment and decree was a valid and final judgment adjudicating the duty of water at three-acre feet per annum at the well, and the trial court erred by readjudicating the duty of water. Third, it is argued that the trial court erred in assuming jurisdiction to amend permits and licenses of the State Engineer, duly and lawfully issued subsequent to the entry of the adjudication sub-file orders. Fourth, the contention is made that Pecos Valley did not have standing to pursue the relief sought by its amended motion. Finally, the assertion is made that there was no substantial evidence to support the finding that there should be allotted a six-inch per annum carriage loss from the well to delivery upon the land.

We will first address ourselves to the contentions advanced by cross-appellant State of New Mexico, that the trial court was in error by readjudicating the duty of water, and that the partial final decree entered in March 1966 was a final judgment which could not be modified at a later hearing.

In disposing of those issues we refer to the partial final decree signed by Judge E. T. Hensley which, among other things, concluded that the sub-file orders entered in the cause adjudicating the water rights of the defendants by the special master should be expressly confirmed and approved. The same partial final decree required the installation of measuring devices to measure water from wells in the Roswell Underground Water Basin. Said partial final decree, insofar as pertinent to this appeal, found that:

'The amount of water applied to beneficial use is the basis and measure of the water rights adjudicated in the individual sub-files in these actions.'

In a separate conclusion of law, designated as No. 6, the trial court stated:

'The Court should retain jurisdiction of these causes for the purpose of entering[84 N.M. 772]

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such further orders...