State ex rel. Reynolds v. Sharp

• Decision Date: 02 October 1959
• Docket Number: No. 6566,6566
• Parties: STATE of New Mexico ex rel. S. E. REYNOLDS, State Engineer, and Pecos Valley Artesian Conservancy District, Plaintiffs-Appellees, v. Mack SHARP and Beatrice Sharp, Defendants-Appellants.
• Court: New Mexico Supreme Court

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 Plaintiffs-Appellees, v. Mack SHARP and Beatrice Sharp, Defendants-Appellants.

No. 6566.

Supreme Court of New Mexico.

Oct. 2, 1959.

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 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 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 rights in the system, both underground and surface, were within the contemplation of the statute, and from this holding we are not prepared to depart.

In that case it appears that a writ of prohibition was sought in the Supreme Court to prevent the Fifth Judicial District Court from hearing a case brought in that court to enjoin the defendants therein named from diverting any waters to which they had rights from the Rio Bonito watershed as planned by the defendants, because this water allegedly was part of the water which re-charged the Roswell Artesian Basin, in which plaintiffs and those represented by them had valuable water rights which would be damaged if the diversion took place. The defendants had pleaded in abatement the pendency of another suit brought in the District Court of Lincoln County by them seeking a general adjudication of the water rights on the Rio Bonito. Upon the plea in abatement being overruled, the writ of prohibition was sought. The fact that the priorities and rights between users in the Roswell Artesian Basin and in the Rio Bonito stream system were the subject of adjudication in the Lincoln County case, without inclusion of all other surface claimants in the Pecos River stream system or even claimants of underground rights in the Roswell Artesian Basin was not considered to affect the Lincoln County court's jurisdiction, although there is discussion of the effect of including 'unknown owners' and 'unknown claimants of interests,' the court concluding as follows:

'Under our statute, artesian appropriators, even if not impleaded, cannot ignore the exclusive jurisdiction of the Lincoln county court. So long at least as that court is open to the assertion of their claims, they must resort there. The provisions of the statute and the reasons behind them forbid entertaining the idea that the exclusive nature of the jurisdiction is to be defeated by failure to serve, or even to implead, all parties. This is not to suggest that one not impleaded or served will be bound by the decree; merely that he cannot, at least durng the pendency of the adjudication suit, establish rights or obtain relief assertable or obtainable therein.'

That the term 'stream system' as used in the statute does not necessarily require the inclusion of every possible right both underground and surface must also have been recognized in that case as the Rio Bonito is a small stream tributory to the larger stream system of the Pecos River. It was never considered or asserted that all claimants in the entire Pecos River system had to be made parties. The court did consider the practical problems incident to the broad interpretation there given to the statute as including underground...