State ex rel. Reynolds v. Sharp, 6566

Docket NºNo. 6566
Citation66 N.M. 192, 344 P.2d 943, 1959 NMSC 80
Case DateOctober 02, 1959
CourtSupreme Court of New Mexico

Page 943

344 P.2d 943
66 N.M. 192
STATE of New Mexico ex rel. S. E. REYNOLDS, State Engineer,
and Pecos Valley Artesian Conservancy District,
Mack SHARP and Beatrice Sharp, Defendants-Appellants.
No. 6566.
Supreme Court of New Mexico.
Oct. 2, 1959.

[66 NM 194] Frazier & Cusack, Roswell, for appellants.

Hilton A. Dickson, Jr., Atty. Gen., Charles D. Harris, J. Lee Cathey, Sp. Asst. Attys. Gen., John F. Russell, Roswell, for appellees.

MOISE, Justice.

This is another in a series of appeals resulting from orders entered adjudging water rights in the Roswell Artesian Basin, and results from adjudication to the appellants of a right to irrigate 120 acres in the

Page 944

NE 1/4 of Sec. 26, Twp. 13 South, Rge. 25 East, N.M.P.M., instead of 134 acres, or at least 129.4 acres as claimed by them.

This is an action brought under the provisions of Secs. 75-4-4 and 75-4-6, N.M.S.A.1953, to adjudicate the rights to waters in the Roswell Artesian Basin. The appellees filed the action against certain defendants who owned land in one township, and allege in their complaint that 'a hydrographic survey is being conducted and prepared by the plaintiffs and when portions of said survey are completed, they will be filed in this court' and then they ask the Court to add additional parties 'as their identity becomes known.' The appellants here were added as parties by the 13th order joining additional parties defendant, were served with process and thereafter answered in the cause.

At the outset, counsel for appellants suggest the absence of jurisdiction in the lower court, and although not raised in the court below, raise it here under our Supreme Court Rule 20 which permits consideration of jurisdictional questions raised for the first time in the Supreme Court.

Appellants' position may be stated briefly as follows: Since Secs. 75-4-4 and 75-4-6, N.M.S.A.1953, were a part of the 1907 water code they applied only to stream systems and not to artesian or shallow water pools, and to hold otherwise is judicial legislation. It is sufficient answer to this argument to point out that in the case of El Paso & R. I. Ry. Co. v. District Court of Fifth Judicial District, 36 N.M. 94, 8 P.2d 1064, 1065, decided in 1931, this Court held that the procedure set up in the 1907 statute was 'all-embracing, and includes claimed rights of appropriators from artesian basin' within a stream system.

It is next argued that stream systems as a whole are to be surveyed, all rights in the stream system adjudicated and all claimants made parties, and that to proceed piecemeal, township by township, as hydrographic surveys are completed, and adding parties as their identity becomes known is such a departure from the statutory procedure as to be jurisdictional, and further that this is a part of the Pecos River stream system which was adjudicated in the case United States v. Hope Community Ditch et al., being cause No. 712 Equity, on the [66 NM 195] docket of the United States District Court for the District of New Mexico, and accordingly cannot be again adjudicated in these proceedings.

Section 75-4-4, N.M.S.A.1953, provides in part that 'upon the completion of the hydrographic survey of any stream system, the state engineer shall deliver a copy or so much thereof as may be necessary for the determination of all rights to the use of the water of such system * * * to the attorney general of the state who shall * * * enter suit * * * for the determination of all rights to the use of such water * * *,' and Sec. 75-4-6, N.M.S.A.1953, provides in part that 'in any suit for the determination of a right to use the waters of any stream system, all those whose claim to the use of such waters are of record and all other claimants, so far as they can be ascertained, with reasonable diligence, shall be made parties. When any such suit has been filed the court shall, * * * direct the state engineer to make or furnish a complete hydrographic survey of such stream system * * * in order to obtain all data necessary to the determination of the rights involved. * * *'

In El Paso & R. I. Ry. Co. v. District Court of Fifth Judicial District, supra, this Court clearly held that all...

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22 cases
  • United States v. Bluewater-Toltec Irr. Dist., Civ. No. 82-1466BB
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • 27 Febrero 1984 section 72-4-19, N.M.Stat.Ann. (1978), can be entered, known claimants must be impleaded. New Mexico ex rel. Reynolds v. Sharp, 66 N.M. 192, 196, 344 P.2d 943, 945 (1959). That is not to say, however, that all potential claimants must be made parties at the time the complaint is filed. I......
  • State ex rel. Martinez v. City of Las Vegas, No. 22,283.
    • United States
    • New Mexico Supreme Court of New Mexico
    • 7 Abril 2004
    ...115 N.M. at 238, 849 P.2d at 381. {59} Although Section 72-4-17 has been described as "`all-embracing,'" State ex rel. Reynolds v. Sharp, 66 N.M. 192, 194, 344 P.2d 943, 944 (1959) (quoting El Paso & Rock Island Ry., 36 N.M. at 95, 8 P.2d at 1065), it does not preclude trespass actions betw......
  • Office of State Engineer v. Lewis, No. 25,522.
    • United States
    • New Mexico Court of Appeals of New Mexico
    • 16 Noviembre 2006 setting out the "scheme" of the adjudication process approved by the New Mexico Supreme Court in State ex rel. Reynolds v. Sharp, 66 N.M. 192, 193-97, 344 P.2d 943, 944-46 (1959). Part of this scheme, Appellants continue, involves the requirement that court decrees of final adjudication ......
  • Atlantic Refining Co. v. Beach, Nos. 8049
    • United States
    • New Mexico Supreme Court of New Mexico
    • 8 Enero 1968
    ...accordingly, not bound by the trial court's findings. Newbold v. Florance, 56 N.M. 284, 243 P.2d 597; State ex rel. Reynolds v. Sharp, 66 N.M. 192, 344 P.2d 943; Garry v. Atchison T. & S.F. Ry., 71 N.M. 370, 378 P.2d 609. As in Jones v. Int'l Union of Operating Eng'rs, 72 N.M. 322, 383 P.2d......
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