Yeo v. Pearson

• Decision Date: 12 April 1929
• Docket Number: Nos. 3408, 3420.,s. 3408, 3420.
• Parties: YEO, State Engineer,v.TWEEDY.SAMEv.PEARSON et al.
• Court: New Mexico Supreme Court

34 N.M. 611

286 P. 970

YEO, State Engineer,

v.TWEEDY.SAME

v.PEARSON et al.

Nos. 3408, 3420.

Supreme Court of New Mexico.

April 12, 1929.Rehearing Denied April 16, 1930.

Syllabus by the Court.

Section 1, c. 182, Laws of 1927, declaring the waters of underground streams, channels, artesian basins, reservoirs, and lakes, the boundaries of which may be reasonably ascertained by scientific investigations or surface indications, to belong to the public, and to be subject to appropriation for beneficial use, is not subversive of vested rights of owners of lands overlying such waters, since it is declaratory of existing law.

Section 5, c. 182, Laws of 1927, does not delegate legislative power to petitioners.

Chapter 182, Laws of 1927, declared void as in contravention of Constitution, art. 4, § 18, providing that “no law shall be revised or amended, or the provisions thereof extended by reference to its title only; but each section thereof as revised, amended or extended shall be set out in full.”

In No. 3408:

Appeal from District Court, Chaves County; Richardson, Judge.

In No. 3420:

Appeal from District Court, Chaves County; Hatch, Judge.

Separate suits by Herbert W. Yeo against John Tweedy and against Oscar Pearson and another. Decree for plaintiff in first case and for defendant in second case, and defendant in the first case and plaintiff separately appeal.

Reversed and remanded, with directions in the first case and in the last case affirmed, and cause remanded.

PARKER, J., dissenting.

Section 1, c. 182, Laws of 1927, declaring the waters of underground streams, channels, artesian basins, reservoirs, and lakes, the boundaries of which may be reasonably ascertained by scientific investigations or surface indications, to belong to the public, and to be subject to appropiation for beneficial use, is not subversive of vested rights of owners of lands overlying such waters, since it is declaratory of existing law.

In No. 3408:

Tomlinson Fort, of Roswell, for appellant.

Hurd & Crile, of Roswell, and M. A. Otero, Jr., Atty. Gen., for appellee.

In No. 3420:

Hurd & Crile, of Roswell, and M. A. Otero, Jr., Atty. Gen., for appellant.

Roberts & Brice, of Santa Fé, and Reese & Reese, of Roswell, for appellees.

WATSON, J.

John Tweedy appeals from a decree enjoining him (at the suit of the state engineer) from sinking a well upon land owned by him for the purpose of tapping underlying artesian waters without having first obtained a license from the state engineer. The state engineer appeals from a decree denying an injunction against Oscar Pearson and another to enjoin them from doing the same act. The two appeals have been heard, and will be decided together. Involving the interpretation and validity of chapter 182, Laws of 1927, far-reaching results attend their decision. As befits their importance, they have been exhaustively argued and briefed by able counsel.

The Pearson case has taken a wider range, both in the district court and here. Consequently our reference will be to that case, unless the other is specifically mentioned.

The findings of the trial court may be condensed into the following statement: In Southeastern New Mexico, in Chaves and Eddy counties, are two artesian basins; the one extending from above Roswell to about 8 or 10 miles below that city, the other southward therefrom. Between and separating the two is an impervious dike some 4 or 5 miles in width. These basins are supplied by the percolations of a watershed something like 80 miles in length, north and south, by 20 miles in width. The areas of the basins have been recently ascertained by scientific investigation. Since their discovery, the sinking of flowing wells, and the large use of water therefrom for irrigation, have considerably diminished the eastern and western limits of artesian pressure. The original supply has been drawn upon in this manner to an extent that further draughts, in excess of the replacement from natural sources, will tend to the lowering and final depletion of the artesian pressure and of the water supply itself.

Chapter 182 of the Laws of 1927 above referred to, omitting the title and the enacting and emergency clauses, is as follows:

“Section 1. All waters in this state found in underground streams, channels, artesian basins, reservoirs, or lakes, the boundaries of which may be reasonably ascertained by scientific investigations or surface indications, are hereby declared to be public waters and to belong to the public, and subject to appropriation for beneficial uses under the existing laws of this state relating to appropriation and beneficial use of waters from surface streams.

Sec. 2. The state engineer shall have the supervision and control of all such underground waters and of the method and manner of appropriation and use thereof, under the laws of this state.

Sec. 3. All waters of such underground streams, channels, artesian basins, reservoirs, or lakes, now being used for beneficial purposes, are hereby recognized as valid appropriations of such waters and hereby confirmed, and such use shall be subject to the rules and regulations of the state engineer under the laws of this state.

Sec. 4. This act is not intended to apply to the construction of wells by persons, corporations, or municipalities to obtain waters for domestic or stock watering purposes.

Sec. 5. Upon the passage and approval of this act, the state engineer of the state of New Mexico shall proceed to the administration of the same as to any particular underground stream, channel, artesian basin, reservoir, or lake as defined in Section 1 hereof, upon a petition being presented to him requesting him so to do, signed by not less than ten per cent. of all the users of waters of such defined underground streams, channels, artesian basins, reservoirs, or lakes.”

After the taking effect of the foregoing act, a petition filed with the state engineer asked him to proceed to the administration of “the Roswell artesian basin.” This petition treated as one the two artesian basins lying in the area above described, and was signed by 10 per cent. of the water users thereof. The proposed well of appellees lies in the southerly of the two.

[1] The most important constitutional objection urged against chapter 182, and that which strikes at the fundamental principle of the legislation, is that it ignores and overrides vested property rights of those who, antedating the enactment, were private owners of lands overlying the basin. If as appellees contend, they had, as incident to their ownership of land, a vested property right in the corpus or the usufruct of the underlying waters, various provisions of the state and Federal Constitutions obviously challenge the power of the Legislature to take or impair such rights in favor of others whose situation is similar except in the matter of earlier appropriation to beneficial use.

The claim of vested right is based upon the theory that, prior to the enactment of chapter 182, it was the law of New Mexico either that the owner of the land had absolute ownership and dominion over such portion of the underlying waters as he could capture or that he had the right to reasonable use of such waters correlative with similar rights of other owners. Appellant, denying this vested right, contends that prior appropriation to beneficial use has always been, in this jurisdiction, the basis and measure of the right to the use of artesian water, and that chapter 182 is merely declaratory of the prior existing law upon the subject.

Upon what does the claimed vested right rest? It is not declared by Constitution or statute. The irrigation code declares public “all natural waters flowing in streams and water courses,” and subjects them to appropriation for beneficial use. Code 1915, § 5654. The constitutional provision is substantially the same. Article 16, § 2. Appellees argue that the statutory and constitutional inclusion of this class of waters, as subject to appropriation, amounts to an exclusion of all others. It will be admitted, however, that both the statute and the Constitution in these affirmative provisions are merely declaratory of existing law. Under a well-known canon of construction, the rule invoked does not apply. State v. Trujillo (N. M.) 266 P. 922.

The right claimed has never been declared in this jurisdiction by judicial decision. Hence it will be found, if at all in the undeclared law. Ordinarily in such a case we say that we are controlled by the “common law as recognized in the United States of America.” Code 1915, § 1354. But under that section we recognize as controlling only so much of the English common law as is applicable to our condition and circumstances. Browning v. Estate of Browning, 3 Johns. (N. M.) 371, 9 P. 677; Beals v. Ares, 25 N. M. 459, 185 P. 780. Moreover, as said by Mr. Justice Shaw, it is the spirit and the principle of the common law which is adopted by such wholesale statutes as ours rather than the letter or the particularly applied rule. Katz v. Walkinshaw, 141 Cal. 116, 70 P. 663, 74 P. 766, 64 L. R. A. 236, 99 Am. St. Rep. 35. That is why it is often said that our common law is adaptable; that, while its principles operate continuously, changed conditions modify its rules; that, when the reason for the rule ceases, so should the rule cease; that what we adopted was a general system of principles rather than a hard and fast code. Boquillas Land & Cattle Co. v. Curtis, 213 U. S. 339, 29 S. Ct. 493, 53 L. Ed. 822.

So it is not necessarily true that the rules governing the use of percolating waters in England have been, up to 1927, the rules for the use of artesian waters in New Mexico, any more than it is true that the taking of water from the Rio Grande is subject to the limitations upon taking from the Thames. Nor is it necessarily true that the rules which Massachuestts has drawn from the principles of the common law are the rules which those same principles...