Trambley v. Luterman
| Decision Date | 24 July 1891 |
| Citation | 27 P. 312,6 N.M. 15,1891 -NMSC- 016 |
| Parties | TRAMBLEY et al. v. LUTERMAN. |
| Court | New Mexico Supreme Court |
Syllabus by the Court.
Where an artificial ditch or acequia, fed from the waters of a non-navigable stream, and constructed through the adjoining lands of different owners, principally for irrigating and domestic purposes, has been continuously and adversely used by one of such owners during more than 21 years for the additional purpose of supplying power to propel a grist-mill, operated by and situate upon land belonging to one of such owners. held, that a party subsequently buying a piece of the land through which the ditch runs situate near and above the place where such mill is erected and more than 20 years after the waters of the acequia had been partially devoted to the running of the mill, buys the same subject to the rights of the mill-owner to appropriate enough of the water there from for such especial or additional use. Held, further that, while such subsequent purchaser may draw water therefrom for the ordinary purpose of irrigation, he may not appropriate the same for some especial purpose,--for instance, to operate a wool-cleansing establishment,--whereby the prior proprietor is deprived of enough water with which to operate his mill.
Appeal from district court, San Miguel county; E. V. LONG, Judge.
J. D O'Bryan, for appellant.
Lee & Fort, for appellees.
This suit was brought by Peter and Ernestine Trambley for the purpose of restraining appellant, the defendant in the court below, from diverting the waters out of the artificial race or ditch of appellees situate on the Gallinas river, near Las Vegas, in San Miguel county, to a wool and pelt cleaning establishment of the defendant, thereby depriving complainants of enough of water with which to operate their mill. It appears from the record that in 1849, Rafael Garcia erected a grist-mill on the Gallinas river at the town of Las Vegas, San Miguel county. The machinery of the mill was propelled by water taken from an artificial ditch or acequia supplied from the river. In 1859, Miguel Desmarais, becoming the owner of this property, erected a new mill thereon, and continued to own and operate the same till October, 1864, when he sold it to Juan Francisco Pinard, who used it until May, 1867, when he conveyed it to complainants who thereupon went into possession, and used the same without interference until the summer of 1886, when defendant, Luterman, erected a wool and pelt cleaning establishment just above complainants' mill, and by means of dams, boards, and obstructions placed in the ditch of complainants, penned back, and by means of an outlet diverted and took, a the water from the ditch for the purpose of carrying the same to his wool and pelt washing establishment; that plaintiffs, on account of such diversion of the water from the ditch, are deprived of a supply sufficient to operate their mill; and commenced this suit for relief, praying in their bill that the defendant be restrained from diverting, taking out, or interfering with the water in the ditch or acequia. Defendant's answer to the bill sets up various grounds of defense. The principal ones relied upon, deemed necessary to be considered in determining the case, are: (1) That complainants have shown no exclusive right to the use of the water from the acequia, either by grant or prescription; (2) if such right ever existed, it was lost by failure of complainants, and of those through whom they claim, to comply with the conditions expressly imposed, or by repeated changes made by complainants as to the manner of appropriating the water; (3) that complainants have no right thereto by use or adverse possession; and (4) that complainants are estopped by their "words, acts, and silence" from denying the defendant's right to appropriate enough of the water from the acequia to operate his wool-cleansing establishment. The action was tried before a master, who filed substantially the following findings of fact: "(1) That, prior to the year 1846, the owners of the land on the east side of the Gallinas river, opposite the town of Las Vegas, had constructed an irrigating ditch, the head of the ditch being north of the town, and the supply of water taken from the river; that, after the construction of the ditch, one Rafael Garcia, who owned the land under the ditch, applied to his co-owners of the land along the ditch for the privilege of using the water not necessary for irrigation flowing in the ditch, to drive a flour-mill which he was about to erect, and that, in accordance with such application, a number of the owners of land along the ditch, and claiming to represent all the owners of the land, gave to Garcia an instrument in writing, of which the following is a translation: (2) That Garcia some time between the years 1846 and 1848 built a small Mexican mill on the ditch or acequia, and used the waters therefrom for the purpose of running his mill, subject, however, to the right of the adjoining occupants to appropriate water therefrom for domestic and irrigating purposes. That Garcia died in the year 1855, leaving as his only heir Agapito Garcia, who shortly afterwards, about the year 1856, sold the mill and the land whereon it stood to Merritt and Kihlberg, from whom, through several mesne conveyances, the property came into the hands of complainants on the 10th day of May, 1867. That the original mill built by Rafael Garcia was run continuously by the water from the ditch up to the year 1860, when it was rebuilt to its present size by Miguel Desmarais, the owner at that time. That the mill, as rebuilt, has been continuously run by water taken from the ditch to the present time, except for a short period, when steam power was introduced to help out the water-power. (3) That complainants have been the owners of the mill and land whereon situated for the past 20 years, and have operated the mill during that time, repairing the dam in connection with the other owners of the land along the ditch, keeping the ditch in repair, and having the use of all the surplus water of the ditch during that period, not used for irrigation or domestic purposes by the other owners of the land. That complainants derived their paper title to the land and appurtenances through six successive and regular deeds of conveyance, all duly recorded, beginning with one dated May 13, 1856, from Garcia and wife to Merritt and Kihlberg, and ending with one bearing date May 10, 1867, from Juan Francisco Pinard to complainants, Peter Trambley and Ernestine, his wife. (4) That when the mill is running, the water appropriated from the acequia to operate the same, after passing over the mill-wheel, returns by a sluice-way to the river below the mill. (5) That on the ___ day of ___, 1886, the defendant, George Luterman, bought a piece of land situate between the ditch which supplies complainants' mill and the Gallinas river, and five or six hundred yards above the mill, for the purpose of erecting a ' wool pulling and cleaning establishment;' that defendant had inquired of complainants before buying as to where he could find a convenient location for such an establishment, and that complainants had directed him to the place now occupied by defendant, and they had also inquired of them how much water he would use, and he informed complainants that he would use six inches square of water, to which information plaintiffs made no response. (6) That defendant erected a building, involving considerable expense and outlay, by the end of June, 1886, at which time he constructed a flume from the ditch which supplies the mill, but on his own...
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