State ex rel. Reynolds v. W. S. Ranch Co.

• Decision Date: 10 May 1961
• Docket Number: No. 6726,6726
• Citation: 69 N.M. 169,1961 NMSC 61,364 P.2d 1036
• Parties: STATE of New Mexico ex rel. S. E. REYNOLDS, State Engineer, Plaintiff-Appellant, v. W. S. RANCH COMPANY, a corporation, Defendant-Appellee.
• Court: New Mexico Supreme Court

Page 1036

364 P.2d 1036

69 N.M. 169

STATE of New Mexico ex rel. S. E. REYNOLDS, State Engineer Plaintiff-Appellant, v. W. S. RANCH COMPANY, a corporation, Defendant-Appellee.

No. 6726.

Supreme Court of New Mexico.

May 10, 1961.

Rehearing Denied Oct. 11, 1961.

Hilton A. Dickson, Jr., Atty. Gen., Thomas O. Olson, First Asst. Atty. Gen., Claud S. Mann, Dudley Cornell, Special Asst. Attys. Gen., for appellant.

Robertson & Skinner, Raton, Seth, Montgomery, Federici & Andrews, Santa Fe, for appellee.

NOBLE, Justice.

The trial court dismissed an action by the state engineer seeking to enjoin appellee from the diversion or use of water of the Costilla Creek in Taos County, for irrigation and filling ponds and lakes above Costilla Reservoir, because of lack of indispensable parties and appellant appealed from the order of dismissal.

Appellant, the state engineer, alleged that appellee has been using water from Costilla Creek above Costilla Reservoir to fill certain fish ponds and for the irrigation of some 1300 acres of meadow or pasture land above the reservoir; that neither appellee nor its predecessors have ever obtained a license to appropriate the water nor has it ever been adjudicated such water right by a court of competent jurisdiction; that such use by appellee deprives owners of adjudicated water rights of the use of water to which they are entitled, and makes it difficult, if not impossible, for appellant to properly supervise and apportion the water of the stream system.

The answer, among other defenses, alleged the water right vested in appellee (1) by virtue of the Costilla Creek Water Compact between New Mexico and Colorado, and (2) that appellee had acquired the right by prescription. Appellee alleged that the lower water users on the stream were the real parties in interest and indispensable parties, and that since a construction of the interstate compact is drawn into the controversy the State of Colorado is an indispensable party.

The facts were largely stipulated. The trial court made certain findings of fact and conclusions of law but specifically said that no findings or conclusions were made as to the merits of any of appellee's claims to such water rights nor as to the merits of any of the claims of any other water users of the stream system. The trial court did hold that the other users of water from the stream system are both necessary and indispensable to a determination as to whether appellee is the owner of a valid water right and dismissed the action on the ground that the court was without jurisdiction because of a lack of indispensable parties. This appeal is from the judgment. The appeal, then, presents the questions as to whether the other water users on the stream system and the state of Colorado are indispensable parties.

The chronology of events as gathered from the stipulation is substantially the following:

All water rights, as of that date, of the Costilla Creek stream system were adjudicated in Cause No. 841 on the docket of the district court of Taos County in December, 1911, but neither appellee nor its predecessors in title were parties to that adjudication. Appellee owns all of the land on Costilla Creek above the Costilla Reservoir. Appellee's predecessor on October 22, 1941, filed in the office of the state engineer a 'Declaration of Old Right' accompanied by a map or plat showing the lands and rights claimed by appellee and the use of water thereon, which bears the notation by the state engineer that it was accepted and approved for filing. It was stipulated that appellee's predecessor in title was in fact using the water as shown on the plat prior to the filing of the declaration and the court found that appellee makes a bona fide claim to the right to use such water.

The Costilla Creek Water Compact (Sec. 75-34-3, N.M.S.A.1953 Comp.) between New Mexico and Colorado, of which we take judicial notice, was duly entered into and ratified by the two states (Laws N.M.1945, c. 51, Laws Colo.1945, c. 104) and approved by the Congress of the United States on June 11, 1946, 60 Stat. 246, and Art. IV(a) recites:

'The apportionment and allocation of the use of Costilla Creek water shall be as follows:

'(a) There is allocated for diversion from the natural flow of Costilla Creek and its tributaries sufficient water for beneficial use on meadow and pasture lands above Costilla Reservoir in New Mexico to the extent and in the manner now prevailing in that area.'

It is conceded that appellee and its predecessors have used water from Costilla Creek for beneficial use on meadow and pasture land above Costilla Reservoir, substantially as shown on the map filed with the declaration of old water right for a period of more than ten years prior to the Costilla Creek Compact.

Appellant relies upon the provisions of Sec. 75-2-9, N.M.S.A.1953 Comp., which reads:

'The state engineer shall have the supervision of the apportionment of water in this state according to the licenses issued by him and his predecessors and the adjudications of the courts.'

and claims that this action was instituted solely for the purpose of enjoining appellee from interfering with the state engineer's statutory duty to supervise the apportionment of the waters of the stream system in accordance with the 1911 adjudication and that the other water users are not required to be before the court for a complete determination of the issues; that the state engineer has the power and duty to enforce the state's police power to protect and apportion the adjudicated rights of water users of the stream system. Appellant then reasons that it follows that the state engineer represents all other water users and all other citizens of the state to prevent appellant from exercising the rights it claims. With this contention we cannot agree.

Appellant asserts that his supervisory power over the apportionment of water grants him the authority to maintain this action to determine whether appellee has the right it is admittedly exercising and that the action is only between appellant and appellee. It was said in El Paso & R. I. Ry. Co. v. District Court, 36 N.M. 94, at page 101, 8 P.2d 1064, at page 1068:

'This court has always recognized that the jurisdiction of the state engineer to control and administer appropriation and use is no broader than as expressed in or necessarily to be inferred from the statute.'

That the jurisdiction of the state engineer over underground water is limited see Yeo v. Tweedy, 34 N.M. 611, 286 P. 970. We have held that the state, in its exercise of the police power, may prevent the waste of water and may enjoin its taking when not applied to a beneficial use, State ex rel. Erickson v. McLean, 62 N.M. 264, 308 P.2d 983, and that the state may maintain an action to enjoin the taking of water from an underground basin in excess of or without a license where such water is subject to appropriation and the defendant makes no bona fide claim otherwise to such water. State ex rel. Bliss v. Dority, 55 N.M. 12, 225 P.2d 1007; State ex rel. Reynolds v. King, 63 N.M. 425, 321 P.2d 200.

We reaffirm the principles announced in those decisions but we do not construe the statute to authorize the state engineer either in the exercise of the state's police power, or as representative of other water users, to seek an adjudication of the water rights of one making a bona fide claim thereto which would affect the rights of others, without the joinder of those persons whose rights may be affected. The rule respecting parties is stated thus in Miller v. Klasner, 19 N.M. 21, at page 25, 140 P. 1107, at page 1108:

'It is a familiar and fundamental rule that a court can make no decree affecting the rights of a person over whom it has not obtained jurisdiction, or between the parties before it, which so far involves or depends upon the rights of an absent person that complete and final justice cannot be done between the parties to the suit without affecting those rights.'

The trial court found:

'8. The exercise by the defendant of its claimed rights to the use of water above Costilla Reservoir conflicts with and interferes with the water rights claimed by New Mexico users below Costilla Reservoir; and if the rights claimed and asserted by the New Mexico users below Costilla Reservoir are valid, then those rights are constantly being infringed and have been infringed by the defendant's use of water above Costilla Reservoir. The court makes no finding as to whether such infringement is proper or lawful.'

Whatever position the state engineer takes in this action, it cannot be divorced from an adjudication of appellee's claimed water right. Insofar as appellee claims a prescriptive right against the claimants below the reservoir 'the use necessary to acquire title by prescription must be open, uninterrupted, peaceable, notorious, adverse, under a claim of right, and continue for a period of ten years with the knowledge or imputed knowledge of the owner' Hester v. Sawyers, 41 N.M. 497, 71 P.2d 646, 651, 112 A.L.R. 536; Martinez v. Mundy, 61 N.M. 87, 295 P.2d 209, and that claim can only be established against the owner of the right or title sought to be established by prescription. The trial court found that the rights interfered with by appellee are those claimed and asserted by the water users below Costilla Reservoir. If appellant alone can maintain this action under his claimed supervisory...