United States v. Lee

• Decision Date: 02 August 1910
• Citation: 15 N.M. 382,110 P. 607
• Parties: UNITED STATESv.LEE et al.
• Court: New Mexico Supreme Court

15 N.M. 382

110 P. 607

UNITED STATES

v.LEE et al.

Supreme Court of the Territory of New Mexico.

Aug. 2, 1910.

Error to Sixth Judicial District Court; before Justice Edward A. Mann.

Suit by the United States against Oliver M. Lee and others. Decree for defendants, and plaintiff brings writ of error. Affirmed.

Irrigation systems may be constructed and rights of way acquired upon unsurveyed land, without first seeking the consent of the Secretary of the Interior. This consent, however, would be necessary in case of parks and reservations where permanent rights cannot be acquired.

Plaintiff in error, hereafter referred to as plaintiff, filed its amended complaint on the 4th day of June, 1907, to which complaint a demurrer was filed by one of the defendants in error, Oliver M. Lee, challenging the sufficiency of the amended complaint. The complaint alleged substantially that in the county of Otero, territory of New Mexico, and upon unsurveyed lands of the United States of America, the defendants, or some of them, have been, and are now, unlawfully maintaining certain ditches, canals, and pipe lines on the said public lands of the United States of America, which ditches, canals, and pipe lines are being maintained in violation of the laws of the United States and the rules and regulations promulgated by the Department of the Interior; that the defendants, together with their agents, servants, and workmen, have heretofore constructed, and are now unlawfully maintaining, irrigating ditches, canals, and pipe lines upon the public lands of the United States in the vicinity above described in the complaint for the purpose of conducting waters from Dog Cañon and San Andres Cañon to certain lands now in the possession of the defendants; that in constructing and building said ditches, canals, and pipe lines the said defendants are unlawfully appropriating public lands of the United States without authority from the said United States or the Secretary of the Interior to build and construct any such canals, pipe lines, or ditches through or over the said public lands; that the plaintiff is informed that defendants gave out and threaten to continue the building and constructing of said canals and ditches without authority of law and to maintain the same and appropriate the waters from the said Dog Cañon and said San Andres Cañon and conduct the said water through said pipe lines and ditches over the public lands of the United States; that upon parts of the lands through which said canals, ditches, and pipe lines have been so constructed bona fide settlers have settled upon certain lands with the bona fide intention of entering the same at the proper land office when said lands shall have been surveyed and thrown open to entry, and the plaintiff further alleges that the defendants, their agents and servants, have no authority in law to go upon the public lands of the United States and construct any ditches, canals, and pipe lines for the purpose of conducting water, or for any other purpose without express authority of the Secretary of the Interior as provided by law for the giving of such authority, and the unlawful acts of the said defendants in so constructing such ditches and canals without authority will cause great loss and damage to the plaintiff, and that plaintiff has no adequate remedy except by injunction, which is prayed for, and a temporary writ of injunction was allowed.

In order that the acts of Congress vital to a decision of this case may be before the court, at the outset sections 18, 19, 20, and 21 of the act of Congress of March 3, 1891 (Act March 3, 1891, c. 561, 26 Stat. 1101, 1102 [U.S. Comp. St. 1901, pp. 1570, 1571]; 6 Fed. St. Ann. pp. 508, 509 and 510), are set out in full.

“Sec. 18. (Right of way through public lands and reservations to canal or ditch companies for irrigation.) That the right of way through the public lands and reservations of the United States is hereby granted to any canal or ditch company formed for the purpose of irrigation and duly organized under the laws of any state or territory, which shall have filed, or may hereafter file, with the Secretary of the Interior a copy of its articles of incorporation, and due proofs of its organization under the same, to the extent of the ground occupied by the water of the reservoir and of the canal and its laterals, and fifty feet on each side of the marginal limits thereof, also the right to take from the public lands adjacent to the line of the canal or ditch, material, earth and stone necessary for the construction of such canal or ditch. Provided, that no such right of way shall be located as to interfere with the proper occupation by the government of any such reservation and all maps of location shall be subject to the approval of the department of the government having jurisdiction of such reservation, and the privilege herein granted shall not be construed to interfere with the control of water for irrigation and other purposes under authority of the respective state or territories. (26 Stat. L. 1101.)

“Sec. 19. (Maps to be filed-grants subject to right of way-damages to settlers.) That any canal or ditch company desiring to secure the benefits of this act shall, within twelve months after the location of ten miles of its canal, if the same be upon surveyed land, and if upon unsurveyed land, within twelve months after the survey thereof by the United States, file with the register of the land office for the district where such land is located, a map of its canal or ditch and reservoir, and upon approval thereof by the Secretary of the Interior the same shall be noted upon the plats in said office, and thereafter all such lands over which such rights of way shall pass shall be disposed of subject to such right of way. Whenever any person or corporation, in the construction of any canal, ditch or reservoir, injures or damages the possession of any settler on the public domain, the party committing such injury or damage shall be liable to the party injured for such injury or damage. (26 Stat. L. 1102.)

“Sec. 20. (Applicable to existing and future canals, etc.-forfeiture of noncompletion.) That the provisions of this act shall apply to all ditches, canals or reservoirs heretofore or hereafter constructed whether constructed by corporations, individuals or association of individuals, on the filing of the certificates and maps herein provided for. If such ditch, canal or reservoir has been or shall be constructed by an individual or association of individuals, it shall be sufficient for such individual or association of individuals to file with the Secretary of the Interior, and with the register of the land office where said land is located, a map of the line of such canal, ditch or reservoir, as in case of a corporation, with the name of the individual owner or owners thereof, together with the articles of association if there be any. Plats heretofore filed shall have the benefit of this act from the date of their filing, as though filed under it. Provided: That if any section of said canal or ditch shall not be completed within five years after the location of said section, the rights herein granted shall be forfeited as to any incompleted section of said canal, ditch or reservoir, to the extent that the same is not completed at the date of the forfeiture. (26 Stat. L. 1102.)

“Sec. 21. (Rights granted only for canal use.) That nothing in this act shall authorize such canal or ditch company to occupy such right of way except for the purpose of said canal or ditch, and then only so far as may be necessary for the construction, maintenance and care of said canal or ditch. (26 Stat. L. 1102.)

“Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, that the Secretary of the Interior be and hereby is authorized and empowered under general regulations to be fixed by him, to permit the use of rights of way through the public lands, forest and other reservations of the United States, and the Yosemite, Sequoia and General Grant National Parks, California, for electrical plants, poles and lines for the generation and distribution of electrical power, and for telephone and telegraph purposes, and for canals, ditches, pipes and pipe lines, flumes, tunnels, or other water conduits, and for water plants, dams and reservoirs used to promote irrigation or mining or quarrying, or the manufacturing or cutting of timber or lumber, or the supplying of water for domestic, public, or any other beneficial uses to the extent of the ground occupied by such canals, ditches, flumes, tunnels, reservoirs, or other water conduits, or water plants, or electrical or other works permitted hereunder, and not to exceed fifty feet on each side of the marginal limits thereof, or not to exceed fifty feet on each side of the center line of such pipes and pipe lines, electrical, telegraph, and telephone lines and poles, by any citizen, association or corporation of the United States, where it is intended by such to exercise the use permitted hereunder or any one or more of the purposes herein named: Provided, that such permits shall be allowed within or through any of said parts or any forest, military, Indian or other reservations only upon the approval of the chief officer of the department under whose supervision such park or reservation falls and upon the finding by him that the same is not incompatible with the public interests; Provided further, that all permits given hereunder for telegraph and telephone purposes shall be subject to the provision of title 65 of the Revised Statutes of the United States, and amendments thereto, regulating rights of way for the telegraph companies over the public domain; and provided further, that any permission given by the Secretary of the Interior under the provisions of this act may be revoked by him or his successor in his discretion, and shall...