United States v. Ballard

• Decision Date: 14 June 1960
• Docket Number: Civ. No. 4194.
• Citation: 184 F. Supp. 1
• Parties: UNITED STATES of America, Plaintiff, v. H. F. BALLARD, M. M. Bradley, George C. Brumble, Leroy Caffall, Arthur J. Mayes, John Mayes, A. M. Leeman, George Smart, Vera Lamb, Vola Ryan and Gene Hood, Defendants. State Game Commission of the State of New Mexico, Intervenor.
• Court: U.S. District Court — District of New Mexico

184 F. Supp. 1

UNITED STATES of America, Plaintiff, v. H. F. BALLARD, M. M. Bradley, George C. Brumble, Leroy Caffall, Arthur J. Mayes, John Mayes, A. M. Leeman, George Smart, Vera Lamb, Vola Ryan and Gene Hood, Defendants State Game Commission of the State of New Mexico, Intervenor.

Civ. No. 4194.

United States District Court D. New Mexico.

June 14, 1960.

James A. Borland, U. S. Atty., by Ruth C. Streeter, Asst. U. S. Atty., Albuquerque, N. M., Perry W. Morton, Asst. Atty. Gen., Alfred H. O. Boudreau, Jr., David R. Warner, Dept. of Justice, Washington, D. C., by Warren R. Wise, Washington, D. C., for plaintiff.

Neal, Neumann & Neal, by Caswell S. Neal, Carlsbad, N. M., for defendants.

Hilton A. Dickason, Jr., Atty. Gen., Thomas O. Olson, Lyle E. Teutsch, Jr., Asst. Atty. Gen., by Lyle E. Teutsch, Jr., Santa Fe, N. M., for Intervenor.

ROGERS, District Judge.

This is a Water Law case, involving lands in Southeastern New Mexico, in Eddy County, wherein the United States of America brings this Action in behalf of Carlsbad Caverns National Park against some nine individual private owners of land in that section of the country. The State Game Commission of the State of New Mexico has intervened herein, to establish a water right to use .44 cubic feet per second of the flow of Rattlesnake Spring, claiming that the water right was acquired by appropriation in 1880, together with further right to use .29 cubic feet per second of the flow from said Springs by license granted by the State Engineer of the State of New Mexico in 1935. The date of the appropriation which was eventually purchased by the United States of America, likewise bears date of 1880.

The United States of America demands injunctive relief in this cause against each of the private land owners, defendants herein, by way of Injunction enjoining the defendants from so using the latter's wells as to deprive the United States of the use of the flow of Rattlesnake Spring, to which it is entitled. It asks additional relief by demanding that the Court appoint a Special Water Master to police defendants' use of water in accordance with the Judgment of the Court, and such other and further relief as may be proper.

Each of the defendants have filed practically identical Answers which deny the allegations of the Government's Complaint, and raise the defense of Non-User under the Four Year Statute of New Mexico (Sec. 75-5-26, N.M.S.A. 1953), raising the defense of waste, as against the Government, the equitable doctrine of Unclean Hands, and the affirmative defense that the Government, by drilling shallow wells, will thereby secure sufficient flow of water from Rattlesnake Spring to enable the Park Service to have full use of its 105 acre foot per year water right. There is interwoven among these defenses, those of hardship and balancing of equities.

In order to understand the complex issues of this cause, it is necessary to recite, at length, the factual situation. The Court trusts that this will not be inordinately long, but in any event, it feels that such recitation is necessary.

The facts, as ultimately found by the Court in this case, are as follows:

Plaintiff United States of America operates Carlsbad Caverns National Park, through the National Park Service of the Department of Interior. The Park was established by Congressional Action. It now contains approximately forty-five thousand acres of land, and its chief attraction is Carlsbad Caverns, one of the largest and most spectacular caverns in the world. Annual attendance records, except during the War years and the attendance growth of the Park is disclosed by plaintiff's exhibit "B", and now is almost one-half million persons per year. Water is, of course, necessary for the use of visitors, Park personnel, food concessions, and others.

The present water supply at the Park is furnished from Rattlesnake Spring, and is pumped from the Spring through a pipeline about five and one-half miles to storage, for use at the Park.

Defendants and each of them are farmers, and irrigate their farms by means of underground water wells, all of which were drilled prior to the inclusion of their farms in an extension of Carlsbad Underground Water Basin by the State Engineer of New Mexico, which extension was made October 21, 1952. Since that date, permits to drill additional underground water wells must be obtained from the State Engineer under applicable underground water laws and regulations. No new wells have been drilled in the Basin, and the Carlsbad Basin has been closed for future development, except for permits issued to drill underground wells to supplement surface water rights.

Intervenor State Game Commission of New Mexico, an agency of the State created by the Legislature, owns and operates a game farm adjacent to Rattlesnake Spring. Black River flows through the lands of the Game Commission. The Commission claims the right to appropriate waters of both Black River and Rattlesnake Spring. Lands in the vicinity of Rattlesnake Spring and the State Game Farm have been irrigated from time to time, by the waters of Rattlesnake Spring and Black River for many years. However, no persons claiming any rights to the flow of Rattlesnake Spring or Black River, other than the State Game Commission of New Mexico, and the United States, are before the Court.

The geology of the area and a general description of the underground Basin and waters in the vicinity of Rattlesnake Spring are fully and completely contained in Defendants' exhibit "3" which was written by W. E. Hale of the United States Geological Survey, in cooperation with the New Mexico State Engineer. The report is published as Technical Report No. 3 by the State Engineer, and was prepared in cooperation with the Geological Survey and National Park Service. The investigation began in 1952. The report was published in 1955, and investigation of the area is still in progress. The report principally discusses the relation of ground water to Rattlesnake Spring, and the effect of pumping from wells in the area on the flow of Rattlesnake Spring (Exhibit 3, page 4, Report).

On June 22, 1921, Henry Harrison filed with the State Engineer, a declaration of water right (Plaintiff's exhibit "C") claiming the right to appropriate 5.35 second feet of water from Rattlesnake Spring for the purpose of irrigating 65.71 acres of land with a priority of 1880. The lawful duty of water at all times material hereto, was one cubic foot of water to 70 acres of land (N.M.S.A. 1953, Sec. 75-5-17). The Harrison right, No. 0432 was limited to the extent it had been placed to beneficial use, namely 65.71 acres. In 1934 (Plaintiff's Exhibit "D"), the United States acquired a Deed from the heirs of Henry Harrison to 79.87 acres of land, with 35 acres of water rights from Rattlesnake Spring. The Government owns under this conveyance, 105 acre feet of water per annum, such claim being based upon a duty of 3 acre feet per annum on the 35 acres purchased, with a priority of 1880, together with the right to one-half second feet of water from what is known as Rattlesnake Spring. Transfer of the right to one-half second feet of water from what is known as Rattlesnake Spring from Ida May Harrison, widow of Henry Harrison, to the United States was filed in the Office of the New Mexico State Engineer on October 16, 1936. All the parties to this proceeding agree that at all times prior to the conveyance to the United States of the right to use one-half c. f. s. of the flow of Rattlesnake Spring, Henry Harrison, and his wife Ida May, had a right to use .5 c. f. s. of the flow of Rattlesnake Spring, with a priority of 1880.

The remainder of the Henry Harrison irrigated lands not purchased by the United States, was later acquired by purchase by the State Game Commission (30.71 acres) which also acquired by purchase the Ida May Harrison right, No. 2096, to irrigate 20.4 acres of land from Rattlesnake Spring. The Game Commission claims the right to irrigate from the Springs, 30.71 acres of land from the Henry Harrison right, and 20.4 acres from the Ida May Harrison right, No. 2096, a total of 51.11 acres.

After the purchase of the 35 acres of land from the Harrison right, No. 0432, the United States applied to the State Engineer for a permit to change the place and method of use of 14 acres of right to Carlsbad Caverns for domestic and industrial use. The Court finds this 14 acres of water right transferred to the Caverns was the equivalent of 2/10 second foot to be used to the extent of 42 acre feet at the Caverns. The remaining 3/10ths second foot was declared applicable to the remaining 21 acres of land (63 acre feet) to be irrigated by the Park Service. This application was approved by the State Engineer March 1, 1937 (Plaintiff's Exhibit "E") and a license issued. In the rider attached to Proof of Works under application of water to beneficial use, it was represented to the State Engineer that 94 acre feet had been used at the Caverns in 1936; that a total of 144 acre feet would be needed for the Caverns in the near future; that the remaining 21 acres of irrigated land at 3 acre feet per annum had actually been applied to the irrigated land. Measurements kept by the Park Service between February 1958, and December 1959, show an actual use of the 22.771 acre feet at the Caverns in 1959, and approximately 21 acre feet in 1928 (Defendants' Exhibit "2"). It has not been shown by any evidence in the case that the Park Service applied 3 acre feet to the irrigation of 21 acres of land.

A similar permit to that issued by the Engineer on March 1, 1937, was issued to the Park Service on December 27, 1937.

Under date of December 20, 1942, the Park Service again applied to the State Engineer for a permit to change the place and purpose of use of the 21 acres of water right owned by it after the transfer of 14 acres to the Caverns, to 0.02 c. f. s. for the use of a CCC Camp, and the remaining...