State Ex Rel. Martinez v. Lewis

882 P.2d 37, 118 N.M. 446
New Mexico Court of Appeals·Decided July 19, 1994·No. 14559·Published·Cited by 9 cases

Opinion

OPINION

BLACK, Judge.

The previous opinion of the Court, filed on May 17,1994, is withdrawn, and the following is substituted.

Appellants, members of the Corn family, claim groundwater rights relating back to claimed 1894 surface water rights for Arroyo del Macho and 1902 surface water rights for Salt Creek. The trial court ruled that Appellants failed to prove the applicability of the relation back doctrine. On appeal, Appellants argue that there was not substantial evidence to support the trial court’s findings of fact that: (1) Arroyo del Macho and Salt Creek are ephemeral streams without base flow; (2) groundwater from Appellants’ wells was not a source of the surface flow at the surface points of diversion; and (3) Appellants failed to establish the nature and extent of prior surface rights. Unpersuaded by Appellants’ arguments, we affirm.

I. STANDARD OF REVIEW

Appellants urge this Court to disregard the trial court’s findings derived from its interpretation of documentary evidence since this Court may examine the documents directly. Appellants are correct that appellate courts are in as good a position as trial courts to weigh the evidence when the evidence is all, or substantially all, documentary. See Brooks v. Tanner, 101 N.M. 203, 205, 680 P.2d 343, 345 (1984). However, this standard of review does not apply in situations, such as the present case, where only a part of the material evidence is documentary. See Newbold v. Florance, 56 N.M. 284, 288, 243 P.2d 597, 599 (1952).

In reviewing a substantial evidence claim, the inquiry is whether substantial evidence supports the judgment of the trial court, not whether evidence supports an alternative result. Sanchez v. Wohl Shoe Co., 108 N.M. 276, 279, 771 P.2d 984, 987 (Ct. App.), cert. dismissed, 108 N.M. 217, 770 P.2d 539 (1989). Although Appellants cite evidence contrary to the trial court’s judgment, we may not reweigh the evidence or retry a disputed issue to reach a different result if there is evidence supporting the decision of the trial court. See id.

II. RELATION BACK DOCTRINE

This case involves application of the relation back doctrine set forth in Templeton v. Pecos Valley Artesian Conservancy District, 65 N.M. 59, 332 P.2d 465 (1958). In State ex rel. Martinez v. City of Roswell, 114 N.M. 581, 844 P.2d 831 (Ct.App.), cert. denied, 114 N.M. 520, 841 P.2d 1149 (1992), this Court affirmed that “[a] supplemental well priority-date may properly ‘relate back’ to the priority date of the antecedent surface right to which it is supplemental only upon a showing of the Templeton factual predicates.” City of Roswell, 114 N.M. at 589, 844 P.2d at 839. These factual predicates are “that the water sought or captured by the supplemental well is water that would otherwise reach the main channel of the surface source and that such water is a source of flow at the point of surface diversion.” Id.

Expert witnesses from both sides testified during trial that in the area where Appellants’ land is situated the Arroyo del Macho has always carried flood flows. As to Salt Creek, reports written during the 1930s and 1950s described it as an ephemeral stream; 1881 United States Government Land Office field notes indicated that the surveyors did not encounter surface water in it; and even Michael Corn admitted that for the last thirty years the water in Salt Creek consisted only of flood flows. This evidence is substantial and supports the trial court’s finding that Arroyo del Macho and Salt Creek are ephemeral streams.

Appellants cite Langenegger v. Carlsbad Irrigation District, 82 N.M. 416, 483 P.2d 297 (1971), in support of their argument that it is contrary to the precedent of this Court and administrative practice in the Roswell Artesian Basin “that users whose rights are based on flood flows are precluded from relating back the priority of the supplemental well to their surface rights[.]” We disagree and regard our holding consistent with Langenegger. As stated by City of Roswell: “the priority of the surface right may attach to a supplemental well only so long as the well captures water that constitutes a part of the base flow of the stream in which the surface rights obtain.” 114 N.M. at 585, 844 P.2d at 835 (interpreting City of Albuquerque v. Reynolds, 71 N.M. 428, 438-39, 379 P.2d 73, 80 (1962)). There was substantial evidence in the present case that there was no base flow and any surface water rights were the consequence of only flood flow. By definition, groundwater is not a source of flood flow, and, therefore, Appellants are not entitled to use of the relation back doctrine of Templeton. See Langenegger, 82 N.M. at 417-18, 483 P.2d at 298-99 (water which passes through an aquifer before entering a river constitutes base flow while water which passes over the surface of the land before entering a river constitutes flood flow); cf. City of Roswell, 114 N.M. at 588, 844 P.2d at 838 (“The Templeton doctrine may not be relied upon if the surface flow ... is not in direct hydrogeologic connection with the underground water source.”). As to administrative practice, Appellants fail to cite any legal theory and supporting authority for why the State should be bound to such practices. Moreover, the district court did not rely on such administrative practices. Issues unsupported by cited authority will not be considered on appeal. In re Adoption of Doe, 100 N.M. 764, 765, 676 P.2d 1329, 1330 (1984).

III. SURFACE RIGHTS

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State Ex Rel. Martinez v. Lewis, 882 P.2d 37, 118 N.M. 446 (N.M. Ct. App. 1994).

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