Gutierres v. Albuquerque Land & Irrigation Company
This litigation was begun by the appellee, in the district court for the second judicial district of the territory of New Mexico, within and for the county of Bernalillo. In the bill of complaint, equitable relief was sought against the now appellants. It was alleged, in substance, that plaintiff, on December 31, 1897, became a body corporate, pursuant to the provisions of an act of the general assembly of the territory of New Mexico, approved February 24, 1887, for the purpose of constructing a canal, ditch, and pipe line between named points in the county of Bernalillo, in the territory of New Mexico; that, as preliminary to the construction of such canal, ditch, and pipe line, a survey of lands along the proposed route thereof was necessary, and such survey was authorized by law; and that the defendants, asserting ownership of lands along such proposed route, had forcibly prevented the employees of the plaintiff from entering on said lands to make survey thereof. It was prayed that temporarily, pending the suit, and perpetually by the final decree, the defendants might be enjoined from further interference with the making of the survey, and there was also a prayer for general relief. In Their answer the defendants admitted their interferences with the proposed survey, as complained of in the bill, but asserted their right to do so. Reiterating the allegations of the answer, by cross complaint, a perpetual injunction was asked restraining entry by the plaintiff upon the lands. An order was issued temporarily restraining the defendants, as prayed, and thereafter a demurrer to the answer and cross complaint of the defendant was filed and overruled. After replication by the respective parties the cause was transferred to the district court of the first judicial district and for the county of Santa F e. In that and for the county of Santa Fe. In that court trial was had and judgment was entered in favor of the plaintiff, perpetuating the preliminary injunction and dismissing the cross complaint of the defendants. The following findings of fact and conclusions of law were embodied in the judgment:

'Findings of Fact.

'I. That the plaintiff is a corporation and has complied with the provisions of the laws of the territory of New Mexico. It is organized for the purpose of constructing a canal from a point on the Rio Grande about 28 miles above the city of Albuquerque to the railroad bridge across said Rio Grande, at Isleta, the initial and terminal points of said canal being within the county of Bernalillo.

'II. That the headgate of plaintiff's proposed canal is to be at a point on the Rio Grande three eighths (3/8) of a mile below or south of the Indian village of San Felipe, about 28 miles above the city of Albuquerque; that the ultimate terminus or point of discharge into the river is at the railroad bridge near Isleta, the entire length of the canal to be about thirty-five (35) miles. The present proposed terminus is at the city of Albuquerque.

'III. That the engineer of the company was proceeding with a survey of the line between Albuquerque and the headgate when defendants interfered with and obstructed the said engineer in the making of said survey.

'IV. That the capacity of the said proposed canal is two hundred and ten (210) cubic feet of water per second.

'V. That there are at present thirteen ditches taking water from the river between the proposed headgate of plaintiff's canal and Albuquerque, and seven between Albuquerque and the Indian town of Isleta.

'VI. That the aggregate capacity of all the said old ditches is four hundred and ninety-eight (498) cubic feet per second, and the court finds that there has been a valid prior appropriation by the owners of said old ditches of the said four hundred and ninety-eight (498) feet per second of water.

'VII. That during a few months or parts of the summer months of the years 1894, 1895, 1896, and 1897 there was no surplus water flowing in the river at the proposed headgate, but during a large majority of the months of each of these years there was a large amount of surplus water flowing past that point, and that those years were the only years within ten or twenty years in which the river was dry at or above Albuquerque.

'VIII. That in a majority of the last ten years there has been surplus water flowing in the said river at the proposed headgate at all times.

'IX. That the river became dry at Albuquerque about the last of June, 1894, and remained so for twenty-two days, and also in June, 1896, for a number of days, the court being unable to find the exact number or length of time from the evidence.

'X. That the months of June, July, August, and September are the 'dry season.'

'XI. That the planting and growing season in the Rio Grande valley begins in February and ends with October.

'XII. That very few farmers served by the present ditches sow wheat, oats, barley, or rye in the fall of the year, but do so in the spring, beginning during February or March, and that very little, if any, of the water now appropriated is used for these crops after June 15th, but the water is used for chili, corn, alfalfa, and melons after that time, and for alfalfa as late as October.

'XIII. That for all the months in most years, and for most of the months in every year, there is a surplus of water flowing in the Rio Grande over and above the amount appropriated by said old ditches.

'XIV. The court finds that there is no evidence that plaintiff relies on any source of water supply than the Rio Grande, or that the proposed canal of plaintiff is expected or intended to receive and distribute stored waters.

'XV. That the plaintiff is not the owner of any lands along the line of its proposed canal or elsewhere.

'XVI. That there is no evidence that plaintiff has any contract with or employment by any person who is the owner of lands irrigable from said proposed canal for the conduct of water upon any such lands, or that any owner of lands not now irrigated from existing acequias, desires or intends to irrigate such lands from plaintiff's canal when completed.

'XVII. That the proposed canal of the plaintiff will cross and recross the existing acequias of Bernalillo nine times within a distance of 1 mile of its length.

'XVIII. That some of the defendants and some of their associates are the owners of lands through which the plaintiff proposes to construct its canal.

'Conclusions of Law.

'I. That the plaintiff corporation is entitled to exercise the power of eminent domain.

'II. That the plaintiff, by the filing of its articles of incorporation with the secretary of the territory of New Mexico, and complying with the provisions of the act under which it is incorporated, has acquired a right to construct its canals and reservoirs to divert through its proposed canal surplus and unappropriated waters flowing in the Rio Grande, and that such a right of eminent domain does not depend upon the ownership of lands by plaintiff or the employment of plaintiff prior to the construction of its canal by owners of lands to carry waters for such owners.

'III. That the defendants, at the time of the filing of the complaint herein, unlawfully obstructed the plaintiff in the exercise of powers lawfully conferred upon it by the act under which it is incorporated.

'IV. That the defendants do not and cannot in this action lawfully represent the rights of such persons claiming a right to the use of the waters of the Rio Grande, by prior appropriation, when the appropriation of such persons was effected at a point below the mouth of the proposed canal of plaintiff.

'V. That the defendants cannot lawfully set up in this action any rights secured to them and their associates or their predecessors in title by the treaty of Guadalupe Hidalgo, and that the allegations of paragraph ten of the answer of defendants with reference to the treaty of defendants are immaterial.

'VI. That the plaintiff is entitled to the relief demanded in the complaint, including a perpetual injunction, as prayed for.

'VII. That defendants are not entitled to any part of the relief demanded in their cross complaint, but the same should be dismissed.'

A motion to set aside the findings and judgment and for a new trial having been overruled, the cause was taken to the supreme court of the territory. That court affirmed the judgment of the trial court and adopted as its own the findings of fact made by the judge of the district court. Thereupon this appeal was allowed.

Mr. Neill B. Field for appellants.

Mr. William B. Childers for appellee.

Mr. Justice White, after making the foregoing statement, delivered the opinion of the court: 

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