OPINION OP THE COURT.
ABBOTT, J.
1 2 The findings of the trial court that, under the appropriation of water through which the defendant claims, there was not put to beneficial use for the first twenty years more than enough to irrigate one hundred acres, that there was water enough in the Rio Hondo, from springs between, the two dams!, to irrigate that amount of land, and, that in 1888 all the water of the Rio Hondo was appropriated by the predecessors in title of the plaintiff, at the point where the dam is, so far as that is a question of fact, are based on substantial evidence, and will not be disturbed by this court. The case of Candelaria v. Miera, 13 N. M. 360 (84 Pac. 1020), in which are collated the previous decisions of this court on that point, has been so many times invoked, and so often followed, that it has become a classic and decisive authority in this jurisdiction. .The question in this case is not one of abandonment, on the one side, or adverse possession, on the other. On the facts found by the trial court, there was never a completed appropriation by the defendant’s predecessors in title, as against the plaintiff, for more than enough water to irrigate one hundred acres. It is now provided by statute, sec. 42, chap. 49, Laws of 1907, that the failure to beneficially use all or any part of the water for which a right of use has vested, for the purpose for which it was appropriated, or adjudicated, for a period of four years, shall cause the reversion of such unused water to the public, and it shall be regarded as unappropriated public water. The statute was merely declaratory of the law as it had already been established in this jurisdiction by repeated judicial decisions, except that by those decisions the- time within which the application must be made was not any definite period, but a reasonable time, depending, to some extent, on the circumstances of the particular case. In Keeney et al v. Carrillo et al, 2 N. M. 480, a year was held to be a reasonable time for applying the water to use. If the application to beneficial use is made in proper time, it relates back and completes the appropriation as ojf the time when it was .initiated. To hold that a formal appropriation,'without use, would hold for twenty years, twice the time necessary to obtain title to real estate by adverse possession in New Mexico, would be contrary to the essential nature of the law of waters as established here, which, as to this feature, has been summed up in the words now embodied in our statute law above referred to: “Beneficial use shall be the basis, the measure and the limit of all right to the use of water.” Wiel on Water Rights, secs. 26, 138, 168, and cases cited; especially Millheiser v. Long, 10 N. M. 99; Wheeler v. North Irr. Co., 10 Colo. 582.
4 The assumption by the appellant that the title to real estate is involved, is not well founded. While water flowing in a natural stream is not the subject of private ownership any more than the fish in it, yet, when it is impounded and reduced to possession by artificial means, it becomes personal property, as the fish do when caught, or, as the common, ownerless air does, when it is liquefied and held in a vessel. Water once reduced to possession and control may be the subject of purchase and sale, or of larceny; and it makes no differencee in that respect, whether the captured fluid is held in a skin or cask, by an itinerant water-vendor, or in the pipes of a modern acqueduct company. Wiel in his work on Water Eights in the Western States, secs. 153 et seq., and 269-282, has treated the subject exhaustively, and, among the decisions he cites, are two of the Supreme Court of the United States: Achison v. Peterson, 20 Wall. 507, and the dissenting opinion in Spring Valley Water Works v. Schottler, 110 U. S. 347. Judge Field, who wrote the opinion of the court in the first case, and the dissenting opinion in the other, dealt with the subject of the ownership of water in his usual illuminating manner. See, also, Hisperia etc. v. Gardner, 4 Cal. App. 357; Bear Lake Co. v. Ogden, 8 Utah 494.
3 5 The claim of the appellant, that he was entitled, as riparian owner on the Rio Blondo,, to have the water, which the appellee was diverting for purposes of irrigation, flow to his land in the channel of the stream is untenable. The doctrine of prior appropriation with application to beneficial use has definitely and wholly superseded the common law doctrine of riparian rights in many of the jurisdictions in which irrigation is necessary to the growth of crops, and among them is New Mexico. The “Colorado Doctrine,” as it is termed, first appears as a dictum in Coffin v. Left Hand Ditch Company, 6 Colo. 443, (1882). It declared that, on the ground of imperative necessity, no settler can claim any right aside from appropriation.. The decisions of our courts,. which had established that doctrine long before it was adopted by statute, have been approved by repeated decisions of the Supreme Court of the United States. Wiel’s Water Rights in the Western States, secs, 23, 24,.and cases cited; Keeney et al v. Carrillo, 2 N. M. 480, 492, (1883) — clearly portended the later decisions of this court, positively affirming the Colorado doctrine, which was especially emphasized in Albuquerque L. & I. Co. v. Gutierrez, 10 N. M. 197, 240. That case went to the Supreme Court of the United States, and received its approval in 188 U. S. 545, and an earlier New Mexico case on the subject, United States v. Rio Grande D. & I. Co., 9 N. M. 292-303, had been approved under the same title, in 174 U. S. 706. Indeed, riparian ownership, as known to the common law, has never, it would seem, been recognized in New Mexico. As pointed out in Albuquerque L. & I. Co. v. Gutierrez, 188 U. S. 545, by the Mexican law in force here at the time the United States acquired the territory, the use of the water of the streams was not limited to riparian lands, but extended to others, subject to regulation and control by the public authorities. And the Mexican law, as well as the law of Indian tillers of the soil, who preceded the Spaniards here, as it may be gathered from the ruins of their irrigation systems, did but recognize the law of things as they are, declaring that such must, of necessity, be the use of the waters of streams in this arid region. Albuquerque L. & I. Co. v. Gutierrez, supra, is, also, conclusive against the appellant’s contention that the appellee, because of its being a corporation and a mere purveyor of water to be used on the lands of others, had not the right to appropriate the water in question.
8 6 7 The question naturally next in order is, whether the appellant is right in his contention that his motion to dissolve the preliminary injunction granted in the cause, should have been sustained, for the reason, stated broadly, that no proper ground for equitable relief existed. The preliminary injunction is no longer really in question, since a permanent injunction was issued in place of it. But We prefer to assume, what does not clearly appear in the brief of the appellant, that the argument against the preliminary injunction is meant to apply to the permanent injunction as well.
Free access — add to your briefcase to read the full text and ask questions with AI
OPINION OP THE COURT.
ABBOTT, J.
1 2 The findings of the trial court that, under the appropriation of water through which the defendant claims, there was not put to beneficial use for the first twenty years more than enough to irrigate one hundred acres, that there was water enough in the Rio Hondo, from springs between, the two dams!, to irrigate that amount of land, and, that in 1888 all the water of the Rio Hondo was appropriated by the predecessors in title of the plaintiff, at the point where the dam is, so far as that is a question of fact, are based on substantial evidence, and will not be disturbed by this court. The case of Candelaria v. Miera, 13 N. M. 360 (84 Pac. 1020), in which are collated the previous decisions of this court on that point, has been so many times invoked, and so often followed, that it has become a classic and decisive authority in this jurisdiction. .The question in this case is not one of abandonment, on the one side, or adverse possession, on the other. On the facts found by the trial court, there was never a completed appropriation by the defendant’s predecessors in title, as against the plaintiff, for more than enough water to irrigate one hundred acres. It is now provided by statute, sec. 42, chap. 49, Laws of 1907, that the failure to beneficially use all or any part of the water for which a right of use has vested, for the purpose for which it was appropriated, or adjudicated, for a period of four years, shall cause the reversion of such unused water to the public, and it shall be regarded as unappropriated public water. The statute was merely declaratory of the law as it had already been established in this jurisdiction by repeated judicial decisions, except that by those decisions the- time within which the application must be made was not any definite period, but a reasonable time, depending, to some extent, on the circumstances of the particular case. In Keeney et al v. Carrillo et al, 2 N. M. 480, a year was held to be a reasonable time for applying the water to use. If the application to beneficial use is made in proper time, it relates back and completes the appropriation as ojf the time when it was .initiated. To hold that a formal appropriation,'without use, would hold for twenty years, twice the time necessary to obtain title to real estate by adverse possession in New Mexico, would be contrary to the essential nature of the law of waters as established here, which, as to this feature, has been summed up in the words now embodied in our statute law above referred to: “Beneficial use shall be the basis, the measure and the limit of all right to the use of water.” Wiel on Water Rights, secs. 26, 138, 168, and cases cited; especially Millheiser v. Long, 10 N. M. 99; Wheeler v. North Irr. Co., 10 Colo. 582.
4 The assumption by the appellant that the title to real estate is involved, is not well founded. While water flowing in a natural stream is not the subject of private ownership any more than the fish in it, yet, when it is impounded and reduced to possession by artificial means, it becomes personal property, as the fish do when caught, or, as the common, ownerless air does, when it is liquefied and held in a vessel. Water once reduced to possession and control may be the subject of purchase and sale, or of larceny; and it makes no differencee in that respect, whether the captured fluid is held in a skin or cask, by an itinerant water-vendor, or in the pipes of a modern acqueduct company. Wiel in his work on Water Eights in the Western States, secs. 153 et seq., and 269-282, has treated the subject exhaustively, and, among the decisions he cites, are two of the Supreme Court of the United States: Achison v. Peterson, 20 Wall. 507, and the dissenting opinion in Spring Valley Water Works v. Schottler, 110 U. S. 347. Judge Field, who wrote the opinion of the court in the first case, and the dissenting opinion in the other, dealt with the subject of the ownership of water in his usual illuminating manner. See, also, Hisperia etc. v. Gardner, 4 Cal. App. 357; Bear Lake Co. v. Ogden, 8 Utah 494.
3 5 The claim of the appellant, that he was entitled, as riparian owner on the Rio Blondo,, to have the water, which the appellee was diverting for purposes of irrigation, flow to his land in the channel of the stream is untenable. The doctrine of prior appropriation with application to beneficial use has definitely and wholly superseded the common law doctrine of riparian rights in many of the jurisdictions in which irrigation is necessary to the growth of crops, and among them is New Mexico. The “Colorado Doctrine,” as it is termed, first appears as a dictum in Coffin v. Left Hand Ditch Company, 6 Colo. 443, (1882). It declared that, on the ground of imperative necessity, no settler can claim any right aside from appropriation.. The decisions of our courts,. which had established that doctrine long before it was adopted by statute, have been approved by repeated decisions of the Supreme Court of the United States. Wiel’s Water Rights in the Western States, secs, 23, 24,.and cases cited; Keeney et al v. Carrillo, 2 N. M. 480, 492, (1883) — clearly portended the later decisions of this court, positively affirming the Colorado doctrine, which was especially emphasized in Albuquerque L. & I. Co. v. Gutierrez, 10 N. M. 197, 240. That case went to the Supreme Court of the United States, and received its approval in 188 U. S. 545, and an earlier New Mexico case on the subject, United States v. Rio Grande D. & I. Co., 9 N. M. 292-303, had been approved under the same title, in 174 U. S. 706. Indeed, riparian ownership, as known to the common law, has never, it would seem, been recognized in New Mexico. As pointed out in Albuquerque L. & I. Co. v. Gutierrez, 188 U. S. 545, by the Mexican law in force here at the time the United States acquired the territory, the use of the water of the streams was not limited to riparian lands, but extended to others, subject to regulation and control by the public authorities. And the Mexican law, as well as the law of Indian tillers of the soil, who preceded the Spaniards here, as it may be gathered from the ruins of their irrigation systems, did but recognize the law of things as they are, declaring that such must, of necessity, be the use of the waters of streams in this arid region. Albuquerque L. & I. Co. v. Gutierrez, supra, is, also, conclusive against the appellant’s contention that the appellee, because of its being a corporation and a mere purveyor of water to be used on the lands of others, had not the right to appropriate the water in question.
8 6 7 The question naturally next in order is, whether the appellant is right in his contention that his motion to dissolve the preliminary injunction granted in the cause, should have been sustained, for the reason, stated broadly, that no proper ground for equitable relief existed. The preliminary injunction is no longer really in question, since a permanent injunction was issued in place of it. But We prefer to assume, what does not clearly appear in the brief of the appellant, that the argument against the preliminary injunction is meant to apply to the permanent injunction as well. It appeared that the plaintiff had undertaken to supply water to about two hundred farmers, some of them at lands thirty-five miles away, for the purpose of irrigation, and that it would be unable to perform its agreements with them, if it should be deprived of the water which the defendant was taking for his own use. Clearly, that would amount, not merely to the loss of a certain amount of water for which compensation could be given in a suit for damages, but to injure the plaintiff’s business so' seriously as fairly tó be considered irreparable. There can be no doubt that courts of equity should interfere to prevent such injury, and that without requiring every one injured to join in the action instituted by one to whom the injury is immediate. And, where the damage of injury is imminent, a preliminary injunction should be granted. 22 Cyc. 765-6, 771-2, and cases cited; especially Diffendal v. Virginia Midland R. R. Co., 86 Va. 459; Wiel on Water Rights 198; Medano Ditch Co. v. Adams, 68 Pac. 341, (Colo). The evidence was not so clear and explicit as to require a finding of more than nominal damages. In its complaint the plaintiff alleged that the defendant “tore out and removed a portion of its dam and head-gate,” and unlawfully diverted and appropriated a large volume of water from said dam; and those allegations,, as to the facts stated in them, were sustained by evidence, but there was no evidence to show any more than 'nominal damlages by the removal of the flash-boards, which, as a matter of common knowledge, are usually not a part of the structure of a dam, but can be taken out and put back without injury to the dam itself. And there was no evidence of the value of the water itself, for the conversion of which, as personal property, the defendant was probably liable in damages. But the water may have had no value there, except for use in the plaintiff’s irrigation system. The plaintiff claimed damages on account of its impaired ability, through the acts of the defendant, to supply water to the farmers it had contracted to supply; and it is urged in the brief for the plaintiff that it was liable to such farmers for failure to perform its agreements with them. It was denied, in behalf of the defendant, that the plaintiff was so 'liable,, as a matter of law; but, however that may be, there is no clear evidence that the plaintiff had failed to keep its agreements with the farmers dependent upon it for water, because of anything done by the defendant. The plaintiff was permitted to show damage to its “property, franchise or interests,” distinct from its stock, but offered no evidence that any one had stopped taking water from it, or, that any one had refrained from entering -into an agreement to take water from it, because of the diversion of water complained of; although it did offer evidence, apparently convincing to the trial court, that those and other injurious consequences would result, if the wrongful conversion should be continued. Counsel for the plaintiff corporation direct attention to the testimony of its president, on page 151 of the record, and say it is sufficient to establish their claim for compensatory damages. He testified. that the "properly, franchise or interests” of the plaintiff, distinct from its stock, were damaged "some four or five hundred dollars a day,” while the water was diverted by the defendant, but, on cross-examination, he said, in response to the question: “Who do you mean was damaged that, namely, four or five hundred dollars a day?” “Well, I mean that the company, in being owned by the farmers almost altogether, — without exception, the stockholders arc all farmers — and, taking all together,, the farmers and stockholders were damaged, and the company in that way.” Q. “The farmers and the stockholders were damaged, and that damaged the company?” A. “Well, I think it would, on account of it being all the same.” The farmers and stockholders were not made parties to the suit, and their claims for damages, if they had any, were not in question. If the case had been tried with a jury, the question of exemplary damages would properly have been submitted to it. The brief for the appellee cites 4 Sutherland on Damages 1031, to that effect: “Such damages x x xxx are in the discretion of the jury, where the facts are such as legally to warrant them,” sa}^ the author. As there was no jury in this case, it was for the court to decide whether the evidence called for exemplary damages, and, although the apparently high-handed course of the defendant, in taking and holding possession of the plaintiff’s property, might have warranted the assessment of damages of a punitive nature against him, it would be an invasion of the province of the trial court, if we would undertake to control its judgment on that point.
The judgment, as rendered, may be corrected to include one dollar as nominal damages, in accordance with the finding of the trial court, and, as so corrected, the judgment is affirmed.