Cartwright v. Public Service Company of New Mexico

343 P.2d 654, 66 N.M. 64

• Court: New Mexico Supreme Court
• Decided: June 1, 1959
• Docket: 6172
• Status: Published

Opinions

SADLER, Justice.

On the 6th day of May, 1955, the plaintiff, Cartwright, joined by a large number of other water users from the Gallinas River filed a first amended complaint in the district court of San Miguel County against Public Service Company as defendant, consisting of several causes of action wherein they set up their rights to the use of waters of said stream, which it was said the defendant was trespassing upon by appropriating such waters to its own use in derogation of their rights. Relief by way of injunction arid damages was sought, as well as the appointment of a water master to administer the waters under the direction of the State Engineer, pendente lite.

During progress of the trial the plaintiffs were permitted to file a trial amendment to conform their amended complaint to the proof. In addition, the Town of Las Vegas prayed and was granted leave to intervene, which it did by filing its Answer along with that of the defendant, Public Service Company. The issues having been made up the cause came on for trial, following which and in due course, the court filed a decision containing its findings of fact and conclusions of law and entered its judgment, conformably thereto, dismissing the complaint from which this appeal is prosecuted. We know of no better way to place before the reader the facts upon which the trial court based its judgment than to set forth its decision containing them and the conclusions of law deduced therefrom. This we now do. They follow:

“Decision of the Court.

“The Court makes the following

“Findings of Fact.

“I.

“That the Intervener, The Town of Las Vegas, New Mexico, is a municipal corporation, organized and existing under and by virtue of the laws of the State of New Mexico and is located in the County of San Miguel, State of New Mexico.

“II.

“That Public Service Company of New Mexico is a corporation, organized and existing under and by virtue of the laws of the State of New Mexico.

“III.

“That in 1835, the territory within which the Intervener, The Town of Las Vegas, New Mexico, is situated, was a part of and under the sovereign jurisdiction of the Republic of Mexico

“IV.

“That on April 6, 1835, the Government of the Republic of Mexico, then having jurisdiction of the Territory in which The Town of Las Vegas, New Mexico, and City of Las Vegas, New Mexico, are now located, established a Mexican. pueblo, known as Nuestra Señora de Las Dolores de Las Vegas, at the site and comprising the territory-now occupied by the said Town and City of Las Vegas, New Mexico.

“V.

“That the Government of the Republic of Mexico, on April 6, 1835, made and approved a community colonization grant known as the Las’ Vegas Grant to the pueblo known as Nuestra Señora de Las Dolores de Las Vegas, and placed the grantees, the inhabitants of said pueblo, in juridical possession thereof.

“VI.

“That the Gallinas River ran through, along or beside said pueblo and was the sole source of water supply for said Mexican pueblo, and its inhabitants.

“VII.

“That the Gallinas River is now and has been, ever since the establishment of said Mexican Pueblo, predecessor of the Town of Las Vegas and the City of Las Vegas, the sole source of water supply of said Mexican Pueblo and its successors, the 'said City and Town and their inhabitants.

“VIII.

“That the said Mexican Pueblo and its successors, the Town of Las Vegas and the City of Las Vegas, New Mexico, and their inhabitants, either through themselves or through the defendant, or its predecessors, under franchises, for the better utilization of such water rights, had and have for their source of water supply the Gallinas River and have used so much of the waters of said Gallinas River as has been necessary for their use.

“IX.

“That the territory within which said Mexican pueblo was located became a part of and under sovereignty of the United States of America by the Treaty of Guadalupe Hidalgo executed in 1848.

“X.

“That the Town of Las Vegas, New Mexico, and the City of Las Vegas, New Mexico, are the successors, under sovereignty of the United States of America, to the Mexican pueblo, Nuestra Señora de Las Dolores de Las Vegas.

“XI.

“That after acquisition of said territory by the government of the United States of America, the Congress of the United States confirmed said grant made by the Republic of Mexico to said Mexican pueblo, and caused to be issued to the Town of Las Vegas, New Mexico, a patent to the said Las Vegas Grant, including the land upon which said Town and City, formerly said Mexican pueblo, was and is situated.

“XII.

“That the said pueblo so established continuously existed and maintained its legal standing and was continuously recognized by the sovereign power of the Republic of Mexico up to the time of the acquisition of legal sovereignty of the territory by the United States of America and that during all of said time it was a Mexican pueblo.

“XIII.

“That the present Town of Las Vegas, New Mexico, and the City of Las Vegas, New Mexico, are the result of the natural growth and expansion of the original Mexican pueblo known and established as Nuestra Señora de Las Dolores de Las Vegas, and are the successors of said pueblo.

"XIV.

“That the laws of the Republic of Mexico in force at the time the pueblo of Nuestra Señora de Las Dolores de Las Vegas was established, and continuing in force to the time of the Treaty of Guadalupe Hidalgo, provided that Mexican colonization pueblos should have a prior and paramount right to the use of so much of the water of streams or rivers flowing through or along or beside such pueblos as should be necessary for the use of such pueblos and their inhabitants, and for the continued use of such pueblos, and their inhabitants by reason of increased growth and size and use.

“XV.

“That at the time of the Treaty of Guadalupe Hidalgo and the acquisition of said territory by the United States of America, said Mexican pueblo was functioning under the laws of the Republic of Mexico and had all of the rights, powers and privileges of a Mexican colonization pueblo, including the right of the pueblo and its inhabitants to the use of the waters of the Gallinas River, prior and paramount to any and all other individual rights whatsoever to the use of said waters. -'

“XVI.

“That the Pueblo, Nuestra Señora de Las Dolores de Las Vegas, and its inhabitants, by the laws of the Republic of Mexico, in force at the time of the Treaty of Guadalupe Hidalgo, had a vested prior and paramount right to the use of so much of the water of the Gallinas River as should be necessary for the pueblo and its inhabitánts, including the future growth and expansion of said pueblo.

“XVII.

“That the Agua Pura Company, a corporation, was formed in 1880 and constructed its reservoirs and water distribution system and distributed water to the communities, now the Town of Las Vegas and the City of Las Vegas, under authority of a fifty year franchise granted by the Board of County Commissioners of San Miguel County, New Mexico.

“XVIII.

“That the defendant, Public Service Company of New Mexico, is the successor of said Agua Pura Company, a corporation, and New Mexico Power Company, a corporation.

“XIX.

“That at the time said franchise to distribute water to said communities was so granted by the Board of County Commissioners of San Miguel County, New Mexico, neither of said communities was incorporated and they were under the control and jurisdiction of the said Board of County Commissioners.

“XX.

“That the City of Las Vegas, New Mexico, was not a party to United States of America v. Hope Community Ditch, No. 712 Equity, in the United States District Court for the District of New Mexico, and that the decree in said cause did not adjudicate or determine any water rights of or claimed by said City of Las Vegas, New Mexico.

“XXI.

“That no answer was filed by the Intervener, The Town of Las Vegas, New Mexico, in United States of America v. Hope Community Ditch, et al., No. 712 Equity, in the United States District Court for the District of New Mexico; and that the decree in said cause did not adjudicate or determine any water rights of, or claimed by, the Intervener, The Town of Las Vegas, New Mexico.

“XXII.

“That the judgment and decree of the Court in United States of America v. Hope Community Ditch, et al., No. 712 Equity, in the District Court of the United States for the District of New Mexico, specifically did not affect any water rights or right to the use of water from the Gallinas River so specifically determined and established by said decree.

“XXIII.

“That at the time the issues were framed and stipulations made affecting the water rights of those parties specifically set out and whose water rights were determined by the specific portions of the judgments and decree in United States of America v. Hope Community Ditch, et al., No. 712 Equity, in the United States District Court for the District of New Mexico, the Agua Pura Company, a corporation, and New Mexico Power Company, a corporation, predecessors of the defendant, Public Service Company of New Mexico, a corporation, were operating under a franchise from San Miguel County, New Mexico.

“XXIV.

“That at all times material hereto, the defendant, Public Service Company Of New Mexico, a corporation, has 'acted in diverting, storing and distributing water under and by virtue of franchises from said City and said Town of Las Vegas, New Mexico.

“XXV.

' “That neither the rights of the Intervener, The Town of Las Vegas, New Mexico, nor of the City of Las Vegas, New Mexico, to the waters of the Gallinas River were litigated or determined by the judgment and decree in United States of America v. Hope Community Ditch, et al., No. 712 Equity, in the United States District Court for the District of New Mexico.

“The Court adopts the following “Conclusions of Law.

“I.

“That the Court has jurisdiction of the parties and of the subject matter of this action.

“II.

“That the Town of Las Vegas, New Mexico, and the City of Las Vegas, New Mexico, as successors of the Mexican pueblo, Nuestra Señora de Las Dolores de Las Vegas, have a right to divert and use so much of the waters of the Gallinas River as is necessary for their use, and that of their inhabitants, with a priority date of 1835, and prior and paramount to any rights of Plaintiffs.

“HI.

“That the defendant, Public Service Company of New Mexico, is now diverting, and at all times material hereto has diverted and distributed, water to the Town of Las Vegas, New Mexico, and the City of Las Vegas, New Mexico, and their inhabitants, under and by virtue of the Pueblo Rights of the said Town and City, as successor to the Mexican pueblo, Nuestra Señora de Las Dolores de Las Vegas, with a priority date of 1835, as the agent and instrumentality of said City and Town, acting under franchises from said City and Town.

“IV.

“That the right of the Defendant, Public Service Company of New Mexico, a corporation, acting under and by virtue of its said franchises, to take and. distribute to the Town of Las Vegas, New Mexico, and the City of Las Vegas, New Mexico, and their inhabitants, so much of the water of the Gallinas River as is necessary for use by said City and Town and their inhabitants is prior and paramount to the right of Plaintiffs, or any of them, to divert and use the water of the said Gallinas River.

“V.

“That the judgment and decree in United States of America v. Hope Community Ditch, et al., No. 712 Equity, in the United States District Court for the District of New Mexico, is not res judicata as to the issue of the pueblo rights of the Town of Las Vegas, New Mexico, or the City of Las Vegas, New Mexico, nor of the right of the defendant, Public Service Company of New Mexico, to divert and utilize the water of the Gallinas River, under its franchises, to which said City and Town, and their inhabitants, have a prior right.

“VI.

“That the right of the defendant, Public Service Company of New Mexico, a corporation, acting under and by virtue of its said franchises, to take so much of the water of the Gallinas River as is necessary for the use of the City of Las Vegas, New Mexico, and the Town of Las Vegas, New Mexico, and their inhabitants, and distribute the same under its franchises is a complete defense to this action.

“Done at Hobbs, New Mexico, on this the 23rd day of April, A. D., 1956. .

“(s) John R. Brand “District Judge”

As readily may be seen from a reading of the lengthy findings and conclusions constituting the trial court’s decision in above mentioned case, and as is often the case when findings so numerous form support for the judgment rendered, certain' basic findings or questions usually emerge,' the whole of which determine the result. So we have found to be the situation here. We may list those basic questions, as fob' lows:

1. Is the so called Hope decree entered in cause No. 712 heretofore pending in the United States District Court for the District of New Mexico res adjudicata as to Public Service Company and the intervenor, Town of Las Vegas, so as to make the defense of Pueblo Rights collateral attack upon the Hope decree and thus to deny to said defendant and intervenors' the right to interpose said defense ?

2. Did the trial court erroneously find or hold the title of the heirs and claimants of interest under Luis Cabeza de Baca to-the Las Vegas Grant to be inferior to the. claims of defendant and intervenor ?•. , .

3. Are we entitled to apply the doctrine' of Pueblo Rights, as known and recog-' nized in California in the State of New Mexico ?

The first two of the major questions emerging on the record before us, being somewhat preliminary to the last and overall question listed above, will be taken up and determined before we undertake a discussion whether the doctrine of Pueblo Rights should be recognized and applied in New Mexico.

Specific findings of the trial court dealing with the question whether the defendant and intervenor are barred by the Hope decree will be found in paragraphs XX to XXV of the findings and conclusion of law No. V of the decision announces the conclusion deemed properly deducible from the findings so made. In substance, said findings recite, speaking in narrative form, that the Pueblo, Nuestra Señora de Las Dolores de Las Vegas, and its inhabitants, under the laws of the Republic of Mexico in force at the time of the Treaty of Guadalupe Hidalgo, had a vested prior and paramount right to the use of so much of the water of the Gallinas River as was necessary for .the Pueblo and its inhabitants, including the future growth cmd expansion of said Pueblo. Further, that the Agua Pura Company, a corporation, had been formed in 1880 and constructed its reservoir and water distribution system and distributed waters to the communities, now the Town of Las Vegas and the City of Las Vegas under authority of a fifty year franchise that had been granted it by the Board of County Commissioners of San Miguel County, New Mexico.

The findings went on to say that the defendant, Public Service Company of New Mexico is the successor of Agua Pura Company, a corporation, and New Mexico Power Company, a corporation; that at the time said franchise to distribute waters to said communities was so granted by the Board of County Commissioners of San Miguel County, New Mexico, neither of said communities was incorporated and both were under the control and jurisdiction of said Board of County Commissioners.

Further and touching the Hope case, the court found that the City of Las Vegas was not a party to that cause entitled United States of America v. Hope Community Ditch, et al., No. 712 Equity in the United States District Court for the District of New Mexico and that the decree in that cause neither adjudicated nor determined any water rights of or claim by said City of Las Vegas, New Mexico; that no answer was filed in said cause by the intervenor, the Town of Las Vegas, New Mexico, in the Plope case pending in the United States District Court, Equity cause No. 712; and that the decree therein neither adjudicated nor determined any water rights of, or claims by, the intervenor, Town of Las Vegas, New Mexico.

The court further found that the judgment and decree of the court in the Hope case specifically did not affect any water rights or right to the use of water from the Gallinas River, so specifically determined and established by said decree. Furthermore, touching said decree, the court found that at the time the issues were framed and stipulations made affecting the water rights of those parties specifically set out and whose water rights were determined by the specific portions of the judgment and decree in the Hope case the Agua Pura Company, a corporation, and New Mexico Power Company, a corporation, predecessors of the defendant, Public Service Company of New Mexico, a corporation, were operating under a franchise from San Miguel County, New Mexico.

There follows the court’s finding that at all times material to this cause, the defendant, Public Service Company of New Mexico, a corporation, has acted in diverting, storing and distributing water under and by virtue of franchises of said City and Town of Las Vegas, New Mexico; that neither the rights of the intervenor, the Town of Las Vegas, New Mexico, nor the City of Las Vegas, New Mexico, to the waters of the Gallinas River were litigated or determined by the judgment and decree in the Hope case, pending in the United States District Court for the District of New Mexico.

It was from these findings the trial court drew its decisive conclusion touching the claim of plaintiffs that an application of the doctrine of res judicata precluded and barred defendant and the intervenor from the defense of Pueblo Rights. Conclusion No. V set out above declares, on the contrary, that the Hope decree was not res judicata as to the issue of Pueblo Rights of the Town of Las Vegas or the City of Las Vegas nor of the right of the defendant, Public Service Company of New Mexico, to divert and utilize water of the Gallinas River, under its franchises, to which said City and Town and their inhabitants, have a prior right.

Touching the issue the defendant and intervenor (appellees) first challenge the right of plaintiffs to place so much reliance on the effect of the Hope decree since the transcript in this case, as claimed by defendants, is entirely silent as to any proceedings had in the federal court. Furthermore, as pointed out by counsel for defendants, intervenor being embraced in the term, neither the decree nor any part of the record in the Hope case is formally before this Court. Notwithstanding this challenge, however, in the discussion of this question counsel for defendants in endeavoring to ar.gue the point in proper relation to the argument of plaintiffs’ counsel found it so awkward as to be quite impossible to avoid making some mention of a transcript of some of the proceedings in the Hope case, not a part of the decree, attached as an appendix to plaintiffs’ brief in chief. They (defendants) further assert:

“If appellants are to claim the federal decree as res judicata of the rights between the parties here, they must, of course, show that both appellants or their privies and appellees were parties to that action and that appellants were decreed rights superior to those of appellees. There is nothing whatever here to indicate that appellants were parties to the federal action or that they were decreed any rights whatsoever.”

Immediately thereafter, counsel for defendant cite the case of Bounds v. Carner, 53 N.M. 234, 205 P.2d 216, much relied upon by plaintiffs in support of their claim that res judicata under the Hope decree bars any claim of Pueblo Rights on defendants’ part. In the Bounds case, this Court discussed at some length the effect of the Hope decree. There, however, the decree of the federal court was introduced in evidence. Here, it was not. Insisting all the way we have no right, nor should permit the duty to be imposed on us of taking judicial notice of the vast proceedings in the Hope case in the federal court, since the proceedings were not introduced in evidence, counsel sensing, nevertheless, the possibility this Court might notice such proceedings judicially, call our attention to what we might be expected to find.

Such proceedings would show, say counsel, that the municipal corporation, the Town of Las Vegas, filed no answer or other pleading in the case and that no judgment of any kind was taken against the Town of Las Vegas, a municipal corporation. They deny that the Town of Las Vegas ever appeared generally in the Hope case by its attorney, John D. W. Veeder, or ever intended to do so, as is pointed out.

There are two legal entities known as the Town of Las Vegas: one, the Town of Las Vegas, a municipal corporation; the other, the Board of Trustees of the Town of Las Vegas, administering the Las Vegas Land Grant. The municipal corporation is, of course, likewise governed by a Board of Trustees. The Board of Trustees of the Town of Las Vegas, administering the Las Vegas Land Grant, did answer in the Hope case and the action was formally dismissed as to it.

Mention is made by plaintiffs’ counsel of the fact that Town of Las Vegas was not adjudicated a water right. They do not assert or claim, however, that any adjudication was made that the Town of Las Vegas had no water right. The fact is there was no adjudication in the Hope case affecting any right of the Town of Las Vegas.

In an effort to show service on the Town of Las Vegas, a municipal corporation, plaintiffs’ counsel point out in the appendix attached to their brief in chief certain proceedings from the Hope case a document headed “Subpoena in Equity” and excerpts from a complaint, which merely contains the name of the Town without any allegations regarding it. The sufficiency of the attempted service was open -to serious question by reason whereof, no doubt, the plaintiffs place so much reliance on a purported voluntary appearance in the Hope case on behalf of the Town before Special Master George E. Remley at a hearing before him. On that occasion attorney John D. W. Veeder said:

“I also appear for the Town of Las Vegas, and consumers of water of the Town of Las Vegas, in the event it becomes necessary to appear for said parties by reason of any adjudication of the title to the water between them and the Agua Pura Company as to the water rights of the consumers of the Town of Las Vegas.” (Emphasis ours.)

This is, indeed, a weak showing for an appearance by or on behalf of the Town. Counsel for defendants assert and the record lends support to their claim that the rights of the Town should not be affected. The United States and every defendant knew the Town had filed no pleading in the case and none intended the Town should. They likewise' knew it was the intention the rights of the Town' should not be affected. All parties knew the City was not even a party. Likewise, all parties knew and intended that no default judgment was taken against either the Town or City and knew as noted the City was not even a party. Indeed, the decree itself provided that it should not affect either the City or Town as parties not named or otherwise mentioned in the specific portion of the decree. Furthermore, it was expressly stipulated that the adjudication to New Mexico Power Company should not affect the Town or City or their inhabitants.

General finding No. 3 of the Decree in the Hope case, which we take the liberty of quoting since latter part of it appears in our opinion in the Bounds case, reads:

“That for the purpose of determining and adjudicating water rights in this decree, the respective tracts of land, the respective ditches, canals, reservoirs, pipe lines, pumping plants and other diversions and ■ distribution works with the rights-of-way therefor and the sites thereof, together with the water rights appurtenant thereto or exercised thereon or therethrough are owned by the respective party or parties plaintiff or defendant as hereinr after named and set out in the specific portions of this decree, but this decree shall not be construed as having adjudicateddetermined or affected the title to any lands or rights in any property whatsoever other than the rights to the diversion and use of water as herein determined and established.” (Emphasis ours.)

It is quite clear Mr. Veeder did not appear in the case for the Town. He merely said he would appear if it became necessary to appear by reason of any adjudication which would affect the Town. It did not become necessary because it was stipulated that nothing should affect the Town’s rights.

The federal court, in the Hope decree, by the findings we have quoted, construed its own decree, argue counsel, and specifically provided that the decree should not be construed as in any way affecting any property or right of any one, whether a party or not, unless such person or corporation was specifically named and adjudicated in the specific portion of the decree. Neither the Town nor City is named or mentioned in the decree. No default was taken against any one. And, as correctly stated by counsel “the construction placed on the decree, by the court rendering the decree, must be given effect.”

Counsel for defendant and intervenor virtually sum up their position on this question, in two succinct paragraphs, as follows :

“The whole record of the proceedings in the Hope ditch case show throughout that the City and Town did not want to be bound by the decree, and that it was the intention of all parties and of the Court, that they not be bound by it.

“Certainly, it will not be denied that a water right is property or a property right. Under the construction of the Court itself, placed on its own decree, it cannot be res judicata as to the Town or City.”

Without more, we must give it as our considered judgment that the appellees (defendant and intervenor) are not bound by res judicata under the Hope decree from pleading as a defense the doctrine of Pueblo Rights. See, 50 C.J.S. Judgments § 733, p. 224; American Brake Shoe & Foundry Co. v. Pittsburgh Rys. Co., 3 Cir., 270 F. 812; In re McMillan’s Estate, 38 N.M. 347, 33 P.2d 369; Flint v. Kimbrough, 45 N.M. 342, 115 P.2d 84.

Coming next to the second major question for determination on the record, viz., was the title of plaintiffs claiming , under Luis Cabeza de Baca valid and superior in point of time to that of the Pueblo, known as Nuestra Señora de Las Dolores de Las Vegas under which the defendant and intervenor claim? We could spend much of the time and space in our opinion in tracing .step by step the manner in. which Juan de Dios Maes, Miguel Archuleta, Manuel Duran and Jose Antonio Casado for themselves and twenty-five others initiated the proceedings, dated March 20, 1835, before the Governor of the province in which Las Vegas Grant lay for land in which to found a colony. Such steps and proceedings were had as to result in the making of a community colonization grant to the Grant applied for, named above, on April 6, 1835, all as specifically found by the trial court in its decision filed in this cause. It will suffice for the purpose of resolving the question to say that the record furnishes ample substantial evidence sustaining the trial court’s findings and we shall not burden this opinion by attempting to set out herein the various steps on which the pertinent findings rest. The record fully supports the fact that Nuestra Señora de Las Dolores de Las Vegas was in all respects established as a colonization pueblo in accordance with the laws of Mexico and juridical possession furnished the grantees.

Turning then to the second major question arising on the record before us, namely, a claim of priority over the grant to the rights and title of the predecessor in interest and title of the defendant and intervenor by virtue of a grant to the Heirs of Cabeza de Baca originating in a grant said to have been initiated in 1821 and subsequently, but prior to the initiation of defendants’ (appellees’) title. This becomes known as the claim of the Baca heirs under whom some, if not all, of the plaintiffs claim. Plaintiffs’ sub-point B, under Point I, is apparently that the Heirs of Luis Cabeza de Baca filed a conflicting claim to the Las Vegas Grant. They say the Baca heirs waived their claim to confirmation of the grant from the Mexican government. The record abundantly establishes that the Congress of the United States confirmed the Las Vegas Grant as a valid Mexican grant to the Town of Las Vegas. The claim of the Town of Las Vegas was numbered 20.

Section 3 of the Act of Congress, June 21, 1860, 12 Stat. 71, provides:

“And be it further enacted, That the private land claims in the Territory of New Mexico, as recommended for confirmation by the surveyor-general in his reports and abstract marked exhibit A, as communicated to Congress by the Secretary of the Interior in his letter dated the third of February eighteen hundred and sixty, and numbered from twenty to thirty-eight, both inclusive, be, and the same are hereby, confirmed.”

The section of the Act of 1860 confirming the Las Vegas Grant is in the same language, except for the claim made, as that confirming the other Mexican grants by the same Act.

One has only to refer to the trial court’s findings III, IV and V, which we shall not here quote again, to see specific findings of the trial court expressly reciting establishment by the Republic of Mexico of the Las Vegas Pueblo at the site now occupied by the Town and City of Las Vegas and the placing of the grantees in juridical possession on April 6, 1835.

We dealt with a somewhat similar question in State ex rel. State Game Commission v. Red River Valley Co., 51 N.M. 207, 182 P.2d 421, 457. It concerned validity of the Montoya Grant in the extreme southwestern portion of San Miguel County. The contention was made that Mexico had no authority to make a grant at time the Pablo Montoya grant was made. The trial court found that the Pablo Montoya grant was made by the Republic of Mexico prior to the American occupation and was confirmed by Congress and patent issued to the grantee. In the present case, the trial court by its findings 3, 4 and 5 made the same identical findings, rendering pertinent language of the court in Red River Valley case, in opinion on motion for rehearing, viz.:

“The foregoing finding judicially determined that the grant in question was made by the Republic of Mexico, not by some, unauthorized person in its name. If so made, the grant will be assumed to be perfect, needing no confirmation.”

Counsel for appellees aptly assert the same force should be given by us to like findings in this case having judicially determined thereby that Las Vegas Grant was made by the Republic of Mexico, not by some unauthorized person in its name, and being so made, will be assumed to be perfect, needing no confirmation.

Notwithstanding the statement in Red River Valley Company case that a grant made by the Republic of Mexico under conditions shown needs no confirmation, the Congress did confirm the Las Vegas Grant to the Town of Las Vegas, thus affording both a judicial determination by the court as well as confirmation of the Mexican title by Congress.

On the effect of such confirmation, the Supreme Court of United States in Tameling v. U. S. Freehold & Emigration Co., 93 U.S. 644, 23 L.Ed. 998, dealing with a Mexican land grant, said:

“This was a matter for the consideration of Congress and we deem ourselves concluded by the action of that body. The phraseology of the confirmatory act is, in our opinion, explicit and unequivocal.”

See, also, Maese v. Herman, 183 U.S. 572, 22 S.Ct. 91, 95, 46 L.Ed. 335, where it would seem all question of the validity of the Mexican title to the Town of Las Vegas was settled. The court said:

“The decree of the governor directed the selection .of a ‘site for a town to be built by the inhabitants,’ and the constitutional justice, in executing the decree, informed those to whom he made ‘the distribution’ of the land ‘that the water and pasture were free to all, and that the joint labor should be done by themselves without any dispute, and that the wall surrounding the town marked out should be made by them all, which being done, that they notify the justice, in order that he may mark out to each one equally the portion he is entitled to.’ A town was started, and grew and attained substantial proportions at the time the confirmatory act was passed.”

It is worthy of note and quite significant that in the case of Maese v. Herman, supra, the court discussed and commented on the adverse claim of the Baca heirs as shown by the report of the surveyor-general and said:

“Congress accommodated the dispute by a magnificent donation of lands to the heirs of Baca, and confirmed the original land to the town.”

We think the trial court was fully justified in declining to give priority to these claims under the Baca heirs over the grant under which Town of Las Vegas claims. It is not to be overlooked, either, that not only did the court in Maese v. Herman, supra, hold that the Las Vegas Grant was a grant to the Town but that its validity as a grant by the Mexican government could not be questioned after confirmation by Congress and found as well all facts showing the Town of Las Vegas was established as a colonization pueblo by the officials of the Mexican government. Other cases attesting the correctness of the trial court’s ruling on effect of confirmation, are Board of Trustees of Anton Chico Land Grant v. Brown, 33 N.M. 398, 269 P. 51; H. N. D. Land Co. v. Suazo, 44 N.M. 547, 105 P.2d 744.

This leaves for final determination of the three basic questions listed near the beginning of this opinion, viz., the question of whether the doctrine of Pueblo Rights was properly recognized and applied by the trial court in disposing of this case. It should be enough at this point in our opinion, without setting out all the facts pertinent to the question, to say the learned judge did recognize the doctrine and apply it to the facts found, thereby upholding the doctrine in its relation to the rights of the Town of Las Vegas, the City of Las Vegas and the defendant, respectively, in and to the waters of the Gallinas River under said doctrine. With some apology for repetition and to avoid redundancy, we shall do no more at this point than to refer to findings of fact Nos. 6, 7 and 8, supra, as the basic findings upon which rest the trial court’s conclusions that the Pueblo Rights doctrine is applicable.

It is not surprising that a doctrine such as the Pueblo Rights arose when we consider the fact that these colonization pueblos to which the right attached were largely, if indeed, not always, established before there was any settlement of the surrounding area. Thus it resulted that there had never had been any prior appropriations or use of water of the river or stream, nor any allotment of lands, by the Mexican government prior to the establishment of the Pueblo.

It is the claim of plaintiffs (appellants) that constitutional and statutory provisions touching the use of water is contrary to the Pueblo Rights doctrine and that it can find no place in our jurisprudence. They fail, however, to point out in what respect this is true. This Court has long recognized that we have followed the Mexican law of water rights rather than the common law. In Martinez v. Cook, 56 N.M. 343, 244 P.2d 134, 138, we said:

“Particularly, we have never followed it in connection with our waters, 'but, on the contrary, have followed the Mexican or civil law, and what is called the Colorado doctrine of prior appropriation and beneficial use.”

We see nothing in the theory of Pueblo Rights inconsistent with the doctrine of prior appropriation and beneficial use. The Town of Las Vegas was granted a water right by the Mexican government in 1835.

It is an admitted fact that the doctrine of Pueblo Rights as we understand and all the parties argue it is well recognized in the State of California. The parties agree that the question has not been determined in the State of New Mexico, although both parties seek to gain some comfort from two New Mexico cases which mention the doctrine. They are the cases of State ex rel. Community Ditches v. Tularosa Community Ditch, 19 N.M. 352, 143 P. 207, and the case of New Mexico Products v. New Mexico Power Co., 42 N.M. 311, 77 P.2d 634. In neither case was any position taken by the Court on the doctrine. In the Tularosa Ditch case the Court merely referred to it and said the right could not be sustained under the facts of that case because Tularosa was founded long after the territory was acquired by the United States and had never been a Mexican pueblo. In the New Mexico Products Co. case, supra, we referred to the decision of the Supreme Court of the United States in United States v. City of Santa Fe, 165 U.S. 675, 17 S.Ct. 472, 41 L.Ed. 874, where it was held that Santa Fe was never established by the Spanish or Mexican government as a pueblo and therefore could not claim pueblo rights. We did not in either of the cases mentioned hold that the doctrine of Pueblo Rights was not applicable in New Mexico, but only that, under the facts before us, neither Town had such rights.

It is not to be overlooked, too, that in State v. Tularosa Community Ditch, supra, we quoted at length, seemingly with some approval, from Kinney on Irrigation and Water Rights (2nd Ed.), pp. 995, 996, § 581, touching the origin of the Pueblo Rights doctrine, in which Kinney asserted the “Plan of Pictic” by which the doctrine was known should be observed in the foundation of any new pueblos in the territory of which New Mexico, along with California and Arizona, constituted a part. We said [19 N.M. 352, 143 P. 215]:

“At first the plan for the establishment of these pueblos was for the King of Spain, in each case by special ordinance, to provide for the foundation of the pueblo, and to set apart for the use of the pueblo and its inhabitants a certain area of land, and to prescribe in the ordinance the rights of the pueblo and its inhabitants to the use of the waters flowing to those lands. * * * And, further, it was also at this time provided by the King, by general ordinance, that thereafterward the provisions and rights granted and the general plan followed in the foundation of the pueblo of Pictic should be followed in the foundation of any new pueblos in the jurisdiction of the commanding general of the internal Provinces of the West, of which California, Arizona, New Mexico, and Texas constituted a part. * * * And this pueblo right to the use of water, or the right of all the inhabitants in common within the jurisdiction of the pueblo, was superior to the individual rights of appropriated, and also superior to the right of the riparian proprietors, through whose fields the stream ran.”

As already stated, however, neither this case nor that of New Mexico Products Co. v. New Mexico Power Co. may be cited with any justification by any party to this suit as sustaining a position taken by this Court on the Pueblo Rights doctrine.

Perhaps one of the best discussions of the rationale and philosophy of the doctrine of Pueblo Rights anywhere may be found in Kinney on Irrigation and Water Rights, pp. 2591-93. We think we may be excused to quote at length from Mr. Kinney, as follows:

“Many of the cities and towns in the southwestern portion of the United States, notably in California, Arizona, New Mexico, and Texas, were originally founded as Spanish-Mexican pueblos, and, therefore, acquired certain rights to the lands set apart either by special or general ordinance promulgated, either by the King of Spain, under Spanish rule, or by the Government of Mexico, as the successor thereof. Upon the acquisition of this territory by the United States under the Treaty of Guadalupe Hidalgo, and the Gadsden Purchase, it was provided by the Acts of Congress in effect that within a certain period of time individuals and cities and towns claiming under the old Spanish-Mexican land grants, or pueblo grants, might prove up their claims before the commissioners appointed under the provisions of the Acts, and upon due proof thereof an award defining the same would be made by the commissioners and there-afterward a patent would be issued from the United States to the city or town or to the individual, as the case might be. A municipality, therefore, founded upon one of these old Spanish-Mexican pueblo grants, having proven its claim, succeeded to all the rights both in the land and waters that were formerly owned by the old pueblo. And as it was held under the Spanish-Mexican law that a community right in and to waters was paramount and superior to the rights of individuals, where the same came in conflict, therefore a pueblo, as a quasi-public corporation and representing a community, acquired rights in and to the waters flowing to and through the boundaries of the pueblo, which rights were paramount and superior to the claims of individuals in and to the same waters. And hence it follows that the city or town o'f the United States which is the successor of one of these old pueblos, is also the successor to all the rights in and to the waters flowing to or through the pueblo lands, which rights are paramount and superior to rights of individuals. And when the right of the pueblo was prior, this is also recognized as an element giving a superior right. It therefore follows that a city succeeding to the right of a pueblo has a preference or prior right to consume the waters of a natural stream and its tributaries, even as against an upper riparian proprietor to the full extent as may be necessary for its inhabitants and for general municipal purposes.

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“As to the extent of the right to which the municipal corporation succeeded, the California cases seem to hold that as long as the city uses the water for municipal purposes and for supplying its inhabitants, for which the right was dedicated, that such an amount of water may be used from the stream as the necessities of the case demand, even to the use of all the water of the stream. And, further, it is held that if the needs of the pueblo increased in the future, the right will expand to include them, and this, too, although the population of the city is not confined to its original limits. * *

“It therefore seems to us that title to water rights based upon the old Spanish-Mexican pueblo right, under the authorities cited and quoted in our notes, is one of the strongest of titles that a municipality may have. It is not only a right absolute in itself to the extent of the water used for municipal purposes and for supplying its inhabitants with the necessary water, but under the case of Los Angeles v. Pomeroy, as the city increases in size and population, it -is an expanding right, which is paramount and superior to the claims of others until the city eventually lays claim to all the water which the stream supplies.” (Emphasis ours.)

Also, in 67 C.J. 1130 the subject is discussed. We quote:

“A Spanish or Mexican pueblo organized in California under the laws, institutions, and regulations of Spain or Mexico acquired a prior and paramouht right to the use of the waters of rivers or streams passing through and over or under the surface of their allotted lands so far as was necessary for the pueblo or its inhabitants, and had the right to distribute to the common lands and to the inhabitants of the pueblo the waters of a nonnavigable river on which the pueblo was situated.

A municipal corporation which is the successor to such a pueblo succeeds to such rights and holds the water rights of its predecessor in trust for its inhabitants.” See also 94 C.J.S. Waters § 231.

Weil on Water Rights (3rd Ed.) 68, gives a good statement of the doctrine, as follows:

“Under the Mexican law, agricultural settlements or ‘pueblos’ located on public land had ipso facto a concession of the waters on the surrounding public lands, so far as necessary for the general supply of the settlement. This right in the pueblo was superior to that of any riparian proprietors; because any riparian proprietors, perforce, acquired private title to public riparian land subsequent to the establishment of the pueblo, since the pueblos colonized uninhabited regions. The pueblo right prevailed because it was acquired on public land before there were any riparian proprietors. The city of Los Angeles has, after much litigation, been held to succeed to the rights of the pueblo, from which it grew, to a public water supply from the Los Angeles River which runs through it. The extent of the city’s right of use under this claim is now settled to include the entire flow of the river, which may be used in parts of the city either within or outside the original pueblo limits.”

In 56 Am.Jur. 953, the author of the text recognizes the doctrine. He states:

“Under Mexican law, a pueblo was entitled to so much of the waters of a stream flowing through it as was necessary for municipal purposes and for the supply of its inhabitants. This right was superior to those of riparian proprietors. The present cities which are the successors of the Mexican pueblos have the same rights as the pueblos.”

And in California the priority of right in a colonization pueblo to take all the waters of a non-navigable stream for the use of its inhabitants on an expanding scale necessary for the benefit of its inhabitants was early recognized and enforced. Hart v. Burnett, 15 Cal. 530; Lux v. Haggin, 69 Cal. 255, 4 P. 919, 10 P. 674; Vernon Irrigation Co. v. City of Los Angeles, 106 Cal. 237, 39 P. 762; City of Los Angeles v. Los Angeles Farming & Drilling Co., 152 Cal. 645, 93 P. 869, 1135; City of San Diego v. Cuyamaca Water Co., 209 Cal. 105, 287 P. 475; City of Los Angeles v. Pomeroy, 124 Cal. 597, 57 P. 585; Hooker v. City of Los Angeles, 188 U.S. 314, 23 S.Ct. 395, 47 L.Ed. 487; Treaty of Guadalupe Hidalgo.

In Volume 1 of Weil on Water Rights in the Western States, page 68, it is said:

“Under the Mexican law, agricultural settlements or ‘pueblos’ located on public land had, ipso facto, a concession of the waters on the surrounding public lands, so far as necessary for the general supply of the settlement.”

It was as early as 1789 that the King of Spain established the Town of Pictic in New Spain and gave the settlement preferred rights to all available water from which evolved the doctrine of Pueblo Rights. 1 Kinney on Irrigation and Water Rights 996. And as shown by the quotation from Kinney in State v. Tularosa Community Ditch, supra, the King decreed that thereafter the general plan followed in the foundation of the Pueblo of Pictic should be followed in the foundation of any new pueblos in California, Arizona, New Mexico and Texas.

Of course, the courts are entitled to take judicial notice of the laws of another state or foreign country from which the state of the forum was formed. In 20 Am. Jur. 74, § 49, Title, Evidence, the text states :

“The rule that courts do not take judicial notice of the laws of another state or a foreign country does not apply to the laws of a state or country from which the state of the forum was formed. In such a situation the laws of the mother state or country which were in existence at the time of the separation will be judicially noticed. In California the Mexican Civil law and the acts of the Mexican Government are judicially noticed by the courts; the courts of Louisiana and Missouri take judicial cognizance of the French and Spanish law formerly prevailing in their jurisdictions. Similarly when territory is acquired, judicial notice must be taken not only by the local courts but by the Federal Courts, of the law existing in such territory prior to its acquisition.”

It is urged upon us by counsel for the plaintiffs that the Las Vegas Grant is not within the portion of New Mexico protected by the Treaty of Guadalupe Hidalgo, being originally a part of the State or Republic of Texas. The trial court properly rejected this contention. Jones v. St. Louis Land & Cattle Co., 232 U.S. 355, 34 S.Ct. 419, 58 L.Ed. 636; United States v. Maxwell Land-Grant Co. cases, 121 U.S. 325, 7 S.Ct. 1015, 30 L.Ed. 949; State ex rel. State Game Commission v. Red River Valley Co, 51 N.M. 207, 182 P.2d 421. Compare Yeo v. Tweedy, 34 N.M. 611, 286 P. 970.

We are unable to avoid the conclusion that the reasons which brought the Supreme Court of California to uphold and enforce the Pueblo Rights doctrine apply with as much force in New Mexico as they do in California. A new, undeveloped and unoccupied territory was being settled. There were no questions of priority of use when a colonization pueblo was established because there were no such users. Water formed the life blood of the community or settlement, not only in its origin but as it grew and expanded. A group of fifty families at the founding of a colony found it no more so than when their number was multiplied to hundreds or even thousands in an orderly, progressive growth.

And just as in the case of a private user, so long as he proceeds with due dispatch to reduce to beneficial use the larger area to which his permit entitles him, enjoys a priority for the whole, so by analogy and under the rationale of the Pueblo Rights doctrine, the settlers who founded a colonization pueblo, in the process of growth and expansion, carried with them the torch of priority, so long as there was available water to supply the life blood of the expanded community. There is present in the doctrine discussed the recognizable presence of lex suprema, the police power, which furnishes answer to claims of confiscation always present when private and public rights or claims collide. Compare, Middle Rio Grande Water Users Ass’n v. Middle Rio Grande Conservancy Dist., 57 N.M. 287, 310, 258 P.2d 391. So, here, we see in the Pueblo Rights doctrine the elevation of the public good over the claim of a private right.

Let it be said in closing that the trial judge, if we correctly interpret his decree, and we feel we do, sustained the claim of defendant and intervenor to a priority over plaintiffs under an application of the doctrine of pueblo rights. There was, indeed, no controversy between the intervenor and defendant. Both alike prayed for dismissal of plaintiffs’ complaint. This is exactly what the court did. The defendant’s claim of priority was under franchises from the Town and City of Las Vegas. Note this language of paragraph 9 of the answer of defendant, to wit:

“That Defendant has never diverted, stored or used any of the water of said river, except such as was reasonably required as an adequate. supply for the present or immediate prospective needs of said City and Town and their inhabitants; that if said diversion, storage or use of said water by Defendant has deprived Plaintiffs, or any of them, of water which they might otherwise have had, the same has been within the paramount and preferred and prior right of said City and Town, and within the right of Defendant as the instrumentality of said City and Town for so diverting, storing and distributing said water.”

One has only to read finding No. VIII, supra, and Conclusion of Law No. Ill, supra, to observe that this theory of the defendant has been carried forward into the findings and conclusions and established by the decree. Whatever the defendant has done in distributing water to the Town and City of Las Vegas and their inhabitants has been in the name and right of said Town and City as successor to Nuestra Señora de Las Dolores de Las Vegas and “as the agent and instrumentality of said City and Town,” acting under franchises from them.

Public Service Company does not own the pueblo rights of said City and Town, as the trial judge viewed the matter. His findings, conclusions and judgment so reflect and affirm. It merely acted as the agent and instrumentality of said City and Town in enabling their inhabitants to enjoy to the fullest extent the pueblo rights inaugurated by the King of Spain. Yet, even he, the King, but bespoke a fact of life as ancient as'the hills when he became author of the Plan of Pictic. Water is as essential to the life of a community as are air and water to the life of an individual. It is frequently mentioned as the “life blood of a community.” It is precious. It is priceless. A community, whether corporate or not, possessing such an indispensable right can neither sell, barter, exchange, or give it away. Either this is so, or the supposed benefaction of the King of Spain in inaugurating the Plan of Pictic became in reality an obituary instead. Water is essential to life. Without it we perish.

Furthermore, we can no more ignore the Pueblo Rights doctrine as a major issue in this case than could we with propriety decline to entertain this appeal. It is raised both by defendant’s answer and the “further, separate” and affirmative defense of intervenor filed in the cause, and so recognized by Judge Brand in his letter to all counsel under date of January 30, 1956, and the judgment itself. Either the court and all counsel at the pre-trial conference misapprehended what the major issue was, or it projected itself as such surely and unmistakably.

We think the trial court was correct in sustaining the claim of defendant and intervenor under the Pueblo Rights doctrine. Other collateral questions are argued but they either are resolved by what we have said, found to be without merit, or unnecessary to determine. The findings and conclusions are supported by substantial evidence and the judgment should be affirmed.

It will be so ordered.

LUJAN, C. J., and COMPTON, J., concur. SHILLINGLAW, J., not participating. FEDERICI, D. J., and McGHEE, J., dissenting.