Pueblo of Isleta v. Tondre

OPINION OF THE COURT. PARKER, J. — Both of the above cases involve the same-questions, and will be considered together, as was done by counsel for the respective parties in their briefs. The first of the above cases involves the validity of a proceeding for the condemnation of a right-of-way for an irrigation ditch through the lands of the plaintiff in error. The condemnation proceedings were instituted by the defendants in error for the' purpose of securing a right-of-way and aheadgate, taking the water from the Eio Grande Eiver at a point of diversion different from that which had formerly been employed for that-purpose. The proceedings-resulted in the condemnation of the land and the payment into court of the amount awarded in that proceeding. The-second of the above cases was an equity proceeding for an injunction to restrain alleged trespass by reason of the-operation of the new ditch constructed over the right-of-way awarded in the condemnation proceedings above referred to. The claims of the plaintiff in error in the first action, and the appellant in the second action, are based in each instance upon a single proposition, which may be-stated as follows: That by reason of the provisions of chap. 49, of the laws of 1907', it became necessary to apply for, and obtain, a permit from the then Territorial, now State Engineer, to' change the point of diversion of water from any natural stream in the State into any irrigating ditch, and the defendants in error, and appellees, having obtained no such permit, were not authorized to maintain condemnation proceedings, or change the point of diversion of water from the Eio Grande, and were consequently trespassers in all of their acts. It appears that both the plaintiff in error and appellant, and the defendants in error and appellees are, and have been, for many years past, appropriators of water for the purpose of irrigation from the Eio Grande Eiver. The head-gate of the ditch of defendants 'in error had been washed away by a change in the banks of the Eio Grande, and it became necessary for them to seek a new head-gate, together with a considerable length of ditch from the new point of diversion, in order to be able to use the water for the purposes required. 1 It is contended by counsel for plaintiff in error that the legislature had not only the power to regulate the right to the use of the waters of the State by persons who had acquired water rights long prior to the passage of the act above mentioned, but that it did in said act, in terms, provide for such regulation. " It is argued by counsel for appellee that a fair construction of the terms of the act shows that it speaks ■ prospectively from the date of its passage, and was never intended to, and does not apply to, water rights acquired prior to the passage of the act, or to the means of enjoying the same. It becomes necessary, therefore, to examine the act as a whole and to determine the legislative intent therefrom, there being some little obscurity in the same. The title of the act is as follows: “An Act to Conserve and Seguíate the Ese and Distribution of the Waters of New Mexico; to Create the Office of Territorial Engineer; to Create a Board of Water Commissioners, and for other purposes.” Sec. 12 of the act provides that the Territorial Engineer shall have the supervision of the apportionment of water in this Territory according to the licenses issued by him and his predecessors, and the adjudications of the courts. This section would seem to limit the jurisdiction of the Territorial Engineer to such water rights as had been acquired under licenses issued by him or his prede-, cessors. Sec. 13, provides for the division of the State into water districts and Sec. 14, provides that after such division, after the application of a majority of the water-users of any district, the State Engineer may appoint a water master for such district, who shall have charge of apportionment of waters in his district. These two sections would seem in no way to refer to old established water rights or community acequias, but to speak to the future and to provide for a condition of affairs to be brought about by the districting of the State under the supervision of the Territorial Engineer. Until the same had been-done it would seem to confer no power and require no duty of the State Engineer in regard to the use of any water right. Sec. 19 provides for a hydrographic survey of each stream system in the State, and sec. 20 provides for the filing with the Attorney General of the data so accumulated and, at the request of the State Engineer, to require the Attorney General to bring' a suit on behalf of the State for the determination of all rights to the use of water in such system. These two sections also speak to the future, and have no application to water rights acquired prior to the passage of the act and the means of enjoying the same. See. 24 of the act .requires every applicant intending to acquire the right to the beneficial use of any of the public waters of the State to make application to the State Engineer for a permit to appropriate the same, and the works to be employed for such purpose are to be subject to the approval of the State Engineer. This section requires the applicant or proposed appropriator of water to furnish the State Engineer with plans and specifications of the proposed works. Sec. 25 further deals with the detail of the data required to be furnished to the State Engineer by the proposed ap■propriator, and provides that the plans of construction may be amended with the approval of the State Engineer, •and contains the following ■ proviso: “Provided further that a change.in the proposed point •of diversion of water from a stream shall be subject to the approval of the Territorial Engineer under the provisions •of sec. 45, hereof, and shall not be allowed to the detriment of the rights of others having valid claims to the "use of water from said stream.” Counsel for plaintiffs in error rely much on this proviso and argue that it was intended to apply to all ditches ■regardless of when the same were constructed, or the right to appropriate the water was acquired. We do not so understand the provisions of sections 24 and 25. -''"They ■speak entirely of water rights to be acquired by means of filing a petition with the State Engineer, and do not in •terms, nor do we think in intent, attempt to deal with any •ditches or water rights acquired before the passage of the act. Sec. 45, referred to in the proviso, does not purport to modify the terms of sec. 25 of the act.. The only direct application of the chapter to prior existing rights occurs in sec. 59, which is as follows: “Nothing contained in this act shall be construed to impair existing, vested rights or the rights and priorities of any person, firm, corporation or association, who may have eommenced the construction of reservoirs, canals, pipe lines or other works, or who have filed affidavits, applications or notices thereof for the purpose of appropriating for benéficial use, any waters as defined in section 1 of this act, in accordance with the laws of the Territory of New Mexico, prior to the passage of this act; Provided, however, That all such reservoirs, canals, pipe lines or ■other works and the rights of the owners thereof shall be subject to regulation, adjudication and forfeiture for ■abandonment, as provided in this act.” At first glance it might seem that this section expressly subjects all prior rights to regulation in accordance with the terms of the chapter, but'a more careful examination of the section leads, we think, to the opposite conclusion. It is seen that two classes of rights are mentioned in the-section, viz: '‘existing, vested rights/ or “the rights and priorities of any person, firm, corporation or association,, who may have commenced the construction of reservoirs, canals, pipe lines or other works, or who have filed affidavits, applications or notices thereof. Then follows the proviso which applies the feature of regulation to these-“reservoirs, canals, pipe lines, or other works and the rights-of the owners thereof/ only, and omits to mention the-first class of rights above pointed out. In determining the-meaning of this section, and the scope of the application-of the regulation feature, resort should be had to the then existing legislation. We had at the date of the passage of the act in question, chap. 102, laws of 1905. Sec. 19 of that act required notice or application to be made to the-Territorial Engineer, which office was first created by that act, by “all persons, associations, or corporations who shall desire to construct any dam or d3ke for the , purpose of storing, appropriating or diverting any public waters/ and required them to submit plans and specifications of the proposed works. The section contains two provisos^ The first is to the effect that if the proposed works are, in the opinion of the Territorial Engineer, not of sufficient importance to have the provisions of the section applied to it, he might suspend the operation of the section, and in case of works of great importance, where life or propert3 would be in danger by the failure of such works, the Territorial Engineer might require certain precautions therein- mentioned to be taken by the jrersons proposing to construct the works. The second proviso excludes from the operation of the section all works requiring the expenditure of less than Two Thousand Dollars. It thus appears that tire class or kind of works referred to in sec. 59, of chap. 49, under discussion, must refer to the class of works, concerning which, under the act of 1905, application was not required to be made to the Territorial Engineer, and ,not to small community ditches or acequias, which involve no danger to life or property, and which are of comparatively insignificant cost. 2 Counsel for appellants argue that sections 3 and 61 of the act provide the only means whereby an acequia already constructed can be enlarged by condemnation proceedings, as was done in these cases, and that therefore the defendants in error and the appellees must necessarily have been acting under the said chap. 49 in the proceedings which were taken; that therefore their rights are controlled by the terms of that chapter. We think the conclusion is faulty in the foregoing argument. Assuming that no other provision of law exists authorizing the condemnation proceedings taken in these cases, than sections 3 and 61 of chap. 49, still it does not follow that the proceeding cannot be maintained. The question is whether old, prior existing rights of the kind presented by plaintiff, are subject to regulations by the State Engineer. If they are not, as we conclude, it does not follow that the owner of such a right cannot pursue condemnation proceedings under sections 3 and 61 of the chapter. /The terms of the sections -are broad, and include every person having a water right, and there is nothing in the terms of either section restricting the class of persons entitled to enjoy the right of condemnation, to those persons who are seeking either to initiate a right, or whose rights are regulated by the terms of the act. It therefore follows that the proceedings in condemnation were regular and properly maintained.j Further contention is made by counsel for plaintiff in error and appellant, to the effect that there was a defect of parties, but this error, if error it was, was cured by the bringing in of the absent party, who adopted the pleadings of the plaintiff in each case and the judgment was in each case rendered in its favor. In this connection it may be stated, that the question involved in these cases is no longer of any importance except to the immediate parties, insofar as it relates co public community acequias, established aijjl in operation prior to March 19, 1907, for by chap. 26 of the Session Laws of 1912, it is provided that no application to or permit from the State Engineer is necessary to change the point of diversion of such an acequia. For the reasons stated, the judgment of the lower Court in each of the cases will be affirmed, and it is so ordered. We Concur: David J. Leahy, District Judge. I Dissent: Clarence J. Roberts, C. J.