State ex rel. Reynolds v. Fulton

• Citation: 1964 NMSC 88,74 N.M. 406,394 P.2d 258
• Decision Date: 27 April 1964
• Docket Number: No. 7395,7395
• Parties: STATE of New Mexico ex rel. S. E. REYNOLDS, State Engineer, and Pecos Valley Artesian Conservancy District, Plaintiffs-Appellees, v. J. T. FULTON, Defendant-Appellant.
• Court: Supreme Court of New Mexico

Page 258

394 P.2d 258

74 N.M. 406

STATE of New Mexico ex rel. S. E. REYNOLDS, State Engineer, and Pecos Valley Artesian Conservancy District, Plaintiffs-Appellees, v. J. T. FULTON, Defendant-Appellant.

No. 7395.

Supreme Court of New Mexico.

April 27, 1964.

Rehearing Denied Aug. 18, 1964.

William M. Siegenthaler, Artesia, for appellant.

Earl E. Hartley, Atty. Gen., Santa Fe, Charles D. Harris, Sp. Asst. Atty. Gen., Roswell, for appellees.

COMPTON, Chief Justice.

In an omnibus suit, cause number 20294, Chaves County, commenced by the State Engineer and joined by the Pecos Valley Artesian Conservancy District as a nominal party plaintiff against L. T. Lewis and others for the purpose of determining the boundaries of the Roswell Artesian Basin, which had been closed to further appropriation in 1931, to adjudicate the water rights of the various owners therein, to quiet title thereto in the respective owners, and to enjoin any illegal use of the waters of the basin, the appellant, being the fee owner of a part of the W 1/2 NW 1/4, Section 35, Township 16 S., Range 26 E., was made a party defendant in the proceeding and also was charged with the illegal appropriation and use of the public waters of the basin.

The defendant affirmatively pleaded that he was the owner of valid artesian underground water rights in the basin to irrigate 61.1 acres of said subdivision; however, he did not state when these rights were initiated. A hearing was conducted before a special master theretofore appointed by the court. The master reported his findings and conclusions to the court with recommendations, all of which were approved. The court found and concluded that the defendant owned only 23.1 acres of underground water rights appurtenant to said subdivision, the same having a priority date of November 15, 1911. The court further concluded that appellant should be enjoined from the illegal use of any additional waters of the basin. Judgment was entered accordingly and this appeal followed.

While the appeal is presented under three points they all challenge the sufficiency of the evidence to support the court's findings which are identical to those made by the special master. Hence, our review is limited to a determination whether the findings have substantial support in the evidence. Witt v. Skelly Oil Company, 71 N.M. 411, 379 P.2d 61; Purdy v. Tucker, 54 N.M. 86, 214 P.2d 766.

The State Engineer offered in evidence what is referred to as the 'Dallas Survey,' a hydrographic survey of the Roswell Artesian Basin conducted by the engineer's office in 1936. This survey is comprehensive. It reflects the lands which were under cultivation at the time and the source of water used thereon; it classifies the land then under cultivation and under irrigation; it classifies the land which had been under irrigation within a period of 4 years prior thereto; it classifies lands which had remained unirrigated and fallow for a period of...