Title: Yeo v. Tweedy - Supreme Court of New Mexico, April 12, 1929
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Title: Yeo v. Tweedy - Supreme Court of New Mexico, April 12, 1929
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Spatial Coverage: North America -- United States of America -- Florida
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Abstract: Jake Varn Collection - Yeo v. Tweedy - Supreme Court of New Mexico, April 12, 1929 (JDV Box 86)
General Note: Box 22, Folder 3 ( Court Cases of Water Rights in States Other Than Florida - 1990 ), Item 22
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286 PACIFIC REPORTER


certificate, and such a right which he is en-
titled to have quieted and protected by a de-
cree of this court. A person cannot divert
the entire flow of a natural stream through
his artificial ditches, provided the flow is in
excess of the amount to which he is entitled,
continue such diversion for forty years or
more and thus prevent a person from appro-
priating such surplus by tying on to the ends
of his ditches or even diverting such surplus
from the ditches themselves; such flow being
the natural flow of the stream and the arti-
ficial channels become the natural channel of
Sthe stream after a lapse of such time as we
have in this case. In support of this princi-
ple of law we cite and rely upon Well on Wa-
ter Rights (3d Ed.) vol. 1, 60 and cases cited
in notes 19 to 21. Then too, such seems so
clearly to be equity and justice that if there
were no cases to support the right of plain-
tiff to file upon such surplus waters so divert-
ed by defendant the decision in this case
should establish such to be the law."
Respondent .made his application to the
state engineer, received his certificate of ap-
propriation, cultivated his lands, and other-
wise used the waters diverted by him for do-
mestic and stock watering purposes, with ref-
erence to the changed condition of the stream.
Equity ought, therefore, to estop appellant
from asserting that this changed condition of"
the stream brought about by her predeces-
sors in interest and maintained by them and
her over a long period of time operates to de-
feat respondent's right of appropriation.
I do not think the fact that respondent's
ditches make no direct connection with appel-
lant's main ditch, ought to be permitted to de-
feat the former's appropriation. His ditches
have been so constructed as to collect the sur-
plus waters coming from appellant's lands.
They collect such waters when the same are
not diverted by appellant to lands entitled to
no service of water. Respondent's ditches
divert the surplus and unappropriated wa-
ters of Star Canyon creek just as effectually
as if his ditches pierced the bank of the creek
above appellant's dam or the bank of her
ditch below the dam. To hold to the contrary
is to give more heed to the form of an appro-
priation than to its substance. Equity dis-
likes a discrimination of this kind.
If appellant considers the continual flowing
of surplus waters dyer her lands to respond-
ent's intercepting ditches injurious to the
land, she may remedy this by permitting his
quota to come down the former channel of
the creek, for the evidence shows that his
ditches are so constructed as to intercept and
collect any waters that may come down this
course.
The decree should be affirmed.


YEO, State Engineer, v. TWEEDY.

SAME v. PEARSON et al.
Nos. 3408, 3420.

Supreme Court of New Mexico.
April 12, 1929.

Rehearing Denied April 16, 1930.

Sylabus by the Court.
I. Constitutional law =>93(1)-Law declaring
underground waters to belong to public and
subject to appropriation is not subversive of
vested rights of owners of land underlying
waters (Laws 1927, c. 182, I; Code 1915,
1354, 5654; Const. art. 16, 2).
Section 1, c. 182, Laws of 1927, declarihi
the waters of underground streams, channels,
artesian basins, reservoirs, and lakes, the
boundaries of which may be reasonably ascer-
tained by scientific investigations or surface in-
dications, to belong to the public, and to be sub-
ject to appropriation for beneficial use, is not
subversive of vested rights of owners of lands
overlying such waters, since it is declaratory of
existing law.

2. Constitutional law =66--Law declaring that
underground waters shall belong to public does.
not unlawfully delegate legislative power to
determine whether act applied In particular
case (Laws 1927, c. 182, $ 5; Const. art. 4,
5 1).
Section 5, c. 182, Laws of 1927, does not
delegate legislative power to petitioners.
3. Statutes e=51-Law declaring underground
waters to belong to public violated constitu-
tional provision forbidding extension of law
by reference to title only (Laws 1927, c. 182;
Const. art. 4, 18).
Chapter 182, Laws of 1927, declared void
as in contravention of Constitution, art. 4, 5 18,
providing that "no law shall be revised or'
amended, or the provisions thereof extended by
reference to its title only; but each section
thereof as revised, amended or extended shall be
set out in full."
PARKER, J., dissenting.


In No. 340S:
Appeal from District Court,
ty; Richardson, Judge.
In No. 3420:


Chaves Coun-


Appeal from District Court, Chaves Coun-
ty; Hatch, Judge.
Separate suits by Herbert W. Ylo against
John Tweedy and against Oscar Pearson and
another. Decree for plaintiff in first case
and for defendant in second case, and defend-
ant in the first case and plaintiff separately
appeal.
Reversed and remanded, with directions in
the first case and in the last case affirmed,
and cause remanded.


=For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


970 N. :.


*







YEO v.
"81
In No. 3408:
Tomlinson Fort, of Roswell, for appellant.
Hurd & Crile, of Roswell, and M. A. Otero,
Jr., Atty. Gen., for appellee.
In No. 3420:
Hurd & Crile, of Roswell, and %. A. Otero,
Jr., Atty. Gen., for appellant.
Roberts & Brice, of Santa F6, and Reese &
Reese, of Roswell, for appellees.

WATSON, J.
John Tweedy annals from a decree enjoin-
ing him (at the suit of the state engineer)
from sinking a well upon land owned by him
tor the purpose or tapping underlying ar-
tesian waters without having first obtained a
license from the state engineer. The state
engineer appeals from a decree denying an
injunction against Oscar Pearson and another
to enjoin them from doing the same act. The
two appeals have been heard, and will be de-
cided together. Involving the interpretation
and validity of chapter 182, Laws of 1927,
far-reaching results attend their decision.
As befits their importance, they have been
exhaustively argued and briefed by able coun-
sel.
The Pearson case has taken a wider range,
both in the district court and here. Conse-
quently our reference will be to that case,
unless the other is specifically mentioned.
The findings of the trial court may be con-
densed into the following statement: In
Southeastern New Mexico, in Chaves and
Eddy counties, are two artesian basins; the
one extending from above Roswell to about
8 or 10 miles below that city, the other south-
ward therefrom. Between and separating the
two is an impervious dike some 4 or 5 miles
in width. These basins are supplied by the
percolations of a watershed something like
80 miles in length, north and south, by 20
miles in width. The areas of the basins have
been recently ascertained by scientific investi-
gation. Since their discovery, the sinking
of flowing wells, and the large use of water
therefrom for irrigation, have considerably
diminished the eastern and western limits of
artesian pressure. The original supply has
been drawn upon in this manner to an extent
that further draughts, in excess of the re-
placement from natural sources will tfnd to
the lowering and final depletion of the arte-
sian pressure and of the water supply itself.
Chapter 182 of the Laws of 1927 above re-
ferred to, omitting the title and the enacting
and emergency clauses, is as follows:
"Section 1. All waters in this state found
in underground streams, channels, artesian
basins, reservoirs, or lakes, the boundaries of
which may be reasonably ascertained by
scientific investigations or surface indica-
tions, are hereby declared to be public waters
and to. belong to the public, and subject to ap-


TWEEDY N.3M 971
6 P.
propriation for beneficial uses under the ex-
isting laws of this state relating to appo-
riation and beneficial use of water frm
surface streams.
"Sec. 2. The state engineer shall have the
supervision and control of all such under-
ground waters and of the method and manner
of appropriation and use thereof, under the
laws of this state.
"Sec. 3. All waters of such underground
streams, channels, artesian basins, reservoirs,
or lakes, now being used for beneficial pur-
poses, are hereby recognized as valid appro-
priations of such waters and hereby con-
firmed, and such use shall be subject to the
rules and regulations of the state engineer
under the laws of this state.
"Sec. 4. This act is not intended to apply
to the construction of wells by persons, cor-
porations, or municipalities to obtain waters
for domestic or stock watering purposes.
"Sec. 5. Upon the passage and approval of
this act, the state engineer of the state of New
Mexico shall proceed to the administration of
the same as to any particular underground
stream, channel, artesian basin, reservoir, or
lake as defined in Section 1 hereof, upon a
petition being presented to him requesting
him so to do, signed by not less than ten per
cent. of all the users of waters of such defined
underground streams, channels, artesian ba-
sins, reservoirs, or lakes."
After the taking effect of the foregoing act,
a petition filed with the state engineer asked
him to proceed to the administration of "the
Roswell artesian basin." This petition treat-
ed as one the two artesian basins lying in the
area above described, and was signed by 10
per cent. of the water users thereof. The
proposed well of appellees lies in the south-
erly of the two.
[1] The most important constitutional ob-
jection urged against chapter 182, and that
which strikes at the fundamental principle of
the legislation, is that it ignores and over-
rides vested property rights of those who,
antedating the enactment, were private own-
ers of lnnrls nrprlvin- theo hbin. If as appel-
lees contend, they had, as incident to their
ownership of land, a vested property right in
the corpus or the usulr8ct of the underlying
w ters various provisions of the state and
Federal Constitutions obviously challenge
the power of the Legislature to take or impair
such rights in favor of others whose situa-
tion is similar except in the matter of earlier
appropriation to beneficial use.
The claim of vested right is based upon the
ter 182, it was the law of New Mexico either
that the owner of the land had absolute own-
ership and dominion over such portion of the
underlying waters as he could capture or that
he had the right to reasonable use of such








286 PACIFIC REPORTER


waters correlative with similar rights of
other owners. Annrllant. denving this vested
right, contends that prior aro atn to
beneficial use has always been. In this uis-
diction, the basis and measure of the right
to the use of artesian water, and that chap-
ter 182 S merely declaratory of the prior
existing law unon the subject.
Upon what does the claimed vested right
rest? It is not declared by Constitution or
statute. The irrigation code declares public
"all natural waters flowing in streams and
water courses," and subjects them to appro-
priation for beneficial use. Code 1915, 5654.
The constitutional provision is substantially
the same. Article 16, 2. Appellees argue
that the statutory and constitutional inclu-
sion of this class of waters, as subject to ap-
propriation, amounts to an exclusion of all
others. It will be admitted, however, that
both the statute and the Constitution in these
affirmative provisions are merely declaratory
of existing law. Under a well-known canon
of construction, the rule invoked does not
apply. State v. Trujillo (N. M.) 266 P. 922.
The right claimed has never been declared
in this jurisdiction by judicial decision.
Hence it will be found, if at all in the unde-
clared law. Ordinarily in such a case we say
that we are controlled by the "common law as
recognized in the United States of America."
Code 1915, 1354. But under that section
we recognize as controlling only so much of
the English common law as is applicable to
our condition and circumstances. Browning
v. Estate of Browning, 3 Johns. (N. M.) 371,
9 P. 677; Beals v. Ares, 25 N. M. 459, 185 P.
7S0. Moreover, as said by Mr. Justice Shaw,
it is the spirit and the principle of the com-
mon law which is adopted by such wholesale
statutes as ours rather than the letter or the
particularly applied rule. Katz v. Walkin-
shaw, 141 Cal. 116, 70 P. 663, 74 P. 766, 64
L. R. A. 236, 99 Am. St. Rep. 35. That is why
it is often said that our common law is adapt-
able; that, while its principles operate con-
tinuously, changed conditions modify its
rules; that, when the reason for the rule
ceases, so should the rule cease; that what
we adopted was a general system of principles
rather than a hard and fast code. Boquillas
Land & Cattle Co. v. Curtis, 213 U. S. 339, 29
S. Ct. 493, 53 L. Ed. 822.
So it is not necessarily true that the rules
governing the use of percolating waters in
England have been, up to 1927, the rules for
the use of artesian waters in New Mexico,
any more than it Is true that the taking of
water from the Rio Grande is subject to the
limitations upon taking from the Thames.
Nor is it necessarily true that the rules which
Massachuestts has drawn from the principles
of the common law are the rules which those
same principles would suggest and lead to in
New Mexico, where conditions and circum-


stances are different, and which has a "L.
ent legal background and history. -- .
Nearly all of the states of the Union ..
general way recognize the common lawF '
England. Yet they have reached different -: -
suits as to riparian rights and as to ris.
in percolating water. See annotation .Si;:' .
terranean and Percolating Waters; Sn, P.'
W ell '. .. .... .. '- "
Wells." 55 A. L. R. 1385. As b well kto,
a number of the Western States hare rejl~tc :-"
the doctrine of riparian rights for that a ..
prior appropriation. The reason general
understood is that they have ben induced by.
the peculiarities of climate and topograpkyi -. ".
and by the surpassing importance of watpr
in any scheme for development, to estabIa' "
by legislative or judicial declaration a basw .
of water right adapted to conditions and d -
manded by economic necessity. Even amao
the Western States uniformity is not fon*A
either in the extent of modification of' t -
common-law doctrine of riparian rights e.
in the theory upon which modification-hai
been based. New Mexico, in this repe :
long since concurred in the "Colorado do es.'
trine," the most far-reaching of all. .A
It was suggested in argument that .wh "f '
the courts of the then Territory of New MyO
ico originally announced the doctrine of prig-,;.
appropriation, they acted arbitrarily;, i'd ..
fiance of the common law, and in subveruwiasw
of vested riparian rights. The idea present* '
is that, from the adoption of the'common kw
in 1876, riparian rights obtained in New bls-
ico, and that they were overthrown by thee -
decisions. But such was not their btheaor,
The theory was that the right of prior appm .. '
priation obtained under Mexican sovelreir -R
continued after the American acquisldlon, an ".
that the sweeping statute adopting the co -
mon law, 30 years later, as the rule oft ,
tice and decision, did not result In the adw-'7
tion of rules inapplicable to our condlla--.
circumstances, and necessities, and s Ur -W'.
sive of rights long since vested and i r '-- -
nized. United-Statesv. Dam & Irri~atsoa ..
9 N. M. 292, 51 P. 674; reversed on dltff r a
grounds, 174 U. S. 690, 19 S. Ct 77-0. 43 I ML.
1136; Albuquerque Land & Cattle Ca. .
Gutierrez, 10 N. M. 177, 61 P. 357; aifr-
Gutierrez v. Land & Irrigation Co., 1SS U. L':
545, 23 S. Ct. 338, 47 L. Ed. 588; Boq l : -
Land & Cattle Co. v. Curtis, supra. g
fornia history is quite different Tho. W -
came there from the eastern part of the C
ed States almost immediately aftr- ::'
change of sovereignty were in such nua't
as to dominate the situation. Within -
months a state government 1was In
and ce of its early acts was to adOP
common law, including i arm Tsa
the courts 1ed. See a. res. '
ment .o the Law of Waters in the W W
Chief JiCstice Shaw. 57 ReportS of .a .
Bar Assciation, 159. Chief Ju~it~ .t
V-'


972 N. M.


-A








YEO v. TWEEDY
286 P.


was the author of the opinions in Katz v.
Walkinshaw (rehearing), supra, and City of
San Bernardino v. City of Riverside, 186 CaL
7, 198 P. 784-two of the leading cases de-
veloping, for California, the doctrine of cor-
relative rights.
It did not matter that the occasion to de-
clare the law of prior appropriation did not
arise until 1898, nor that some persons might
have misunderstood the effect of the adoption
of the common law, and might have made in-
vestments in the belief that they were acquir-
ing riparian rights. As to each rule or princi-
ple of law not resting on statute, there must
be a first statement. Kansas v. Colorado, 206
U. S. 46, 27 S. 655, 51 L. Ed. 956. When
declared, it merely announces existing law.
Statutes are also frequently declaratory, and
section 1 of chapter 182 is of that nature, if,
without its aid, this court could hold that ap-
propriation to beneficial use is the basis and
measure of the right to use the waters of an
artesian basin.
It is argued that we are again asked to
commit a rape of the common law, because of
the further state of development and the
greatly enhanced investment in reliance upon
common-law rights. But, if such investments
have been made under a mistaken idea of the
law, the resulting hardship will be beyond the
power of courts to relieve. The declaration
of both courts and Legislature, and, subse-
quently of the Constitution, that priority of
appropriation should determine the right to
the use of the waters of running streams, did
not necessarily exhaust the principles under-
lying such declarations. If the same princi-
ples justify the present legislative declara-
tion, it does not matter that earlier occasion
has not arisen to apply them. The courts
act only upon controversies requiring deci-
sion. Legislatures indeed adopt general laws
for future application, but, practically, only
as situations develop requiring legislative
action. The situation invoking the present
statutory declaration may be assumed to
have been the excessive use of some of the
valuable subterranean waters of this state,
resulting in the lessening of highly valuable
artesian pressure; the drying up of wells;
and the reversion of highly developed farms
to a condition of nonproductiveness. Con-
fronted with this situation, the Legislature
has, in its wisdom, declared the rule for de-
termining inter se the rights of the owners of
overlying lands. If it has merely made new
application of principles already established,
without having changed any declared or set-
tled rule, we fail to see how any vested right
has been disturbed. Persons contemplating
investment in lands might well have consid-
ered that in the public policy of this state
water is regarded as essential to existence and
progress, and that, where waters were to
be found in bodies sufficient to influence agri-
cultural development, the right to their use


N.M. 973


would be worked out along lines consistent
with former declared policy, the encourage-
ment of use, and the discouragement of non-
use or waste.
So we inquire: According to established
principles and polcy, and by analogy with
particular rights already declared, what were
the rights of persons owning lands over arte-
sian basins?
There is a considerable body of decisions
as to rights in artesian waters. But in few
cases, if any, do we find present, or neces-
sarily involved, the simple question here
raised, namely, whether, as between owners
of lands which nature has situated equally
with respect to artesian waters, their rights to
the use thereof upon such lands are to be de-
termined according to prior appr oration to
beneficial use. Most of the cases have arisen
out of the attempt to divert waters for use
beyond the limits of the basin. See decisions
collected in annotation "Right to Conduct and
Use Artesian Water out of Artesian Basin."
31 A. L. R. 906. An examination of such
cases discloses a consensus of opinion that
one who has lawful access to such waters
may use them at pleasure, according to the
common-law theory that the owner in fee has
dominion to the center of the earth, but modi-
fled by the other common-law principle that
each shall so use his own as not to injure
others. The right thus resulting is to a rea-
sonable use. It is held to include irrigation
of the overlying land in which the well is
sunk. This reasonable use may occasion loss
to other owners, but it is damminu absque in-
juria. It is the unfortunate result of the ex-
ercise of an equal right. But employment of
overlying land as a mere means to obtain
water for the development of other lands, or
as a source of producing an article of mer-
chandise for sale, is not deemed reasonable.
So, if the taking of water for use elsewhere
damages other owners, it may be enjoined.
The "reasonable use" doctrine is based upon
the correlative rights of owners of overlying
hands, and results in giving priority to them
as against those desiring to use the water
elsewhere.
It at once suggests itself that this doctrine
is not only quite consistent with that of ri-
parian rights, but that it is reached by analo-
gy with it. The ownership of overlying lands
gives a preference to the use of the water be-
cause of the natural situation. Nature hav-
ing united the land and the water, man is not
to put them asunder. That is the fundamen-
'tal idea of riparian rights. In arriving at
the rule of "correlative rights," or "reasona-
ble use," the courts have not been unconscious
of the analogy suggested. They have con-
stantly relied upon and invoked it. Weil in
his work on Water Rights in the Western
States (3d Ed. cc. 45 and 46), from which ap-
pellees copiously quote, constantly makes it
plain that the "new law" of percolating wa-









974 N.M. 286 PACIFIC REPORTER

ters is merely an application to such waters The prevent
of the rules of riparian ownership. economic rest
As leading and illustrative cases in which the superior
this doctrine has been applied, appellee se- investedd cap
lects and cites Katz v. Walkinshaw, supra; protected. N
Horne et al. v. Utah Oil & Refining Co., 59 made only fr4
Utah, 279, 202 P. 815, 31 A. L. R. 883; Glover flcial use.
v. Utah Oil & Refining Co., 62 Utah, 174, 218 great natural
P. 915, 31 A. L. R. 900 (both Utah cases being utilized and
reported and annotated at 31 A. L. R. 906); In other ju
St. Germain Irrigation Ditch Co. v. Ditch Co., or similar, h
32 S. D. 260, 143 N. W. 124; Erickson v. Wa- common-law
ter Works, 100 Minn. 481, 111 N. W. 391, 8 waters. But
L. R. A. (N. S.) 1250, 10 Ann. Cas. 843; City parlan rights
of San Bernardino v. City of Riverside, su- than the prin
pra; Coachella Valley County Water District Thus result
v. Stevens (Cal. App.) 266 P. 341; Rouse v. We are not s
City of Kinston, 188 N. C. 1, 123 S. E. 482, a modificatio
85 A. L. R. 1203. The Utah cases we shall majority of t
separately consider. All others are from place for us
states which recognize riparian rights. appropriation
Where riparian rights prevail, it seems to best adapted
us inevitable that the law of artesian waters stances, and
should be worked out consistently with the has declared.
idea of preserving the natural relation be- that appellee
tween the land and the water. But, where States. Ear]
riparian rights have never been recognized, waived the c
where whatever natural right may attend States, as a 1
ownership of riparian land has been set aside streams, but
in the interest of the more productive use of Creek M. &
water, the decisions cited are without force. S. 596, 43 S.
Not only so, but the same reasoning which, The Utah
upon the premise of riparian rights in run- importance s
ning streams, leads to correlative rights in rejected the
artesian waters, will, on the premise of prior the Horn Ca
appropriation of the waters of running whether a ca
streams, lead to the same basis of right in the had been sta
waters of artesian basins. Time and space do the complain
not permit specific reference to the decisions overlying an
which induce us so to conclude, but a read- ous wells up
ing of the cases cited by appellees, and those ters for use I
reviewed in the cited annotations, will, we drying up ai
think, prove convincing. of other ow:
We are here considering "artesian basins, the complain
reservoirs, or lakes, the boundaries of which claimed right
may be reasonably ascertained by scientific tion, but the
investigations or surface indications." Such the outset:
bodies of subterranean water are the princi- was intended
pal resource of the localities where they oc- would feel c
cur. Their employment to the best economic plaint does n
advantage is important to the state. Accord- a right of tha
ing to the "correlative rights" doctrine, each ever to show
overlying owner would have the same right- the subject
the right to use whenever he saw fit. The which recogi
right does not arise from an appropriation time, first in
to beneficial use, which develops the resources notwithstand
of the state. It is not lost or impaired by that plaintiff
nonuse. Regardless of the improvements and ownership of
investments of the pioneers, later comers or were driven,
later developers may claim their rights. Th of defendant
exercise of those rights which have been in beneath the s
abeyance will frequently destroy or impair in controversy
existing improvements, and may so reduce er or stratu
the rights of all that none are longer of prac- Careful co
tical value and that the whole district is re- fendant's cla
duced to a condition of nonproductiveness. of the water


ve for such unfortunate and n.
ilts is found in the recog niLom
rights or prior appropriatorS -
ital and Improvements are thu "
rew appropriations may thus be
om a supply not already In bea. ---
Nonuse Involves forfeiture. A
l public resource is thus botMh
conserved.
risdictions these consideration, 2.
ave caused modification of the i'
rule as to rights in percolataig
. limited by the doctrine of ri- '-
, the courts could go no further --
ciples of that doctrine permitted.
d the rule or correlative rights
o limited. When we once admit
n of the common-law rule. as the
he states have done, there is no
to stop short of the rule of prior
i. Fortunately, that is the rule
i to our condition and circum-
the rule which the.Legislature
Nor are we limited by the fact
s' title is derived from the aited
ly congressional legislation had
ommon-law rights of the United,
andowner, not only as to surface.
as to percolating waters. Snake
7. Co. v. Midway Irr. Co., 260 U.
Ct. 215, 67 L. Ed. 423.
cases cited supra are. of special
since Utah, like New Mexico, has
doctrine of riparian rights In
se, the earlier, the question was
iuse of action for an injunctlam
Lted; it having been alleged tn -
t that the owner of one small lot
artesian basin had sunk numer-
on it and was diverting the w- ..
beyond the basin, resulting in the
id diminished flow of the welUs
ners. As the court interpreted
it, it was not based upon any
s resulting from prior appropri-
court took occasion to remark at
'If it could be inferred that such "
I as the basis of their claim, we
ompelled to hold that the corn -":
ot state facts sufficient to sustat : : .
t nature. There is nothing what-
that the water in question wa
of appropriation under any law
nizes the doctrine of 'First ln
right.' Rather does it api'r,
ing their allegations of priority.
fs base their right upon thtir ,
the land upon which their well
which land in common with that
,constitutes an artesian district
surface of which exists the watet.
ly under a superimposed cap ta.
n of impervious material."
nsideration was given to the d *
Im of the absolute right to the au J
as at the English common la. '.-








YEO v. TWEEDY
286 P.


and to the plaintiffs contention that such
right is limited to reasonable use, and is cor-
relative with the rights of other owners. The
conclusion was In favor of the latter doctrine,
and sustained the complaint. In the course
of the opinion, the view was expressed, ap-
parently obiter, that a "reasonable use
* should be ted first to his [the
land owner's] just proportion according to his
surface area, second, he should not be
entitle even to this quantity to the Injury of
others similarly situated, unless it is reasona-
bly necessary for the beneficial purposes to
which he devotes the water."
In the succeeding and related Glover Case,
the same defendant had purchased the rights
of a large number of lot owners, and was di-.
verting the waters for the same purpose
as before. Seeking an injunction, the plain-
tiff alleged that, according to the surface
area of her lot, she was entitled to 6.58 gal-
lons of water per minute. Defendant's opera-
tions did not prevent plaintiff from obtain-
ing that quantity of water. But she contend-
ed for a peculiar principle-a cross between
prior appropriation and correlative rights.
She urged that, in addition to that propor-
tion of the whole supply which appertained
to the area she owned, she was entitled to a*
proportionate share of waters not at the time
in reasonable use. She relied strongly upon
decisions said to hold "that the doctrine of
correlative rights or reasonable use of perco-
lating water includes the idea that the water
cannot be conveyed away, either for waste
or use, from the land in which the water is
found in its natural state." The court point-
ed out, however, that, while such seemed to
be the consensus of opinion, the decisions sup-
porting it came from states committed to'the
doctrine of riparian rights, and so furnished
no guide for a court governed by the law of
prior appropriation. The court further said
that, for the same reason which had led to
the conclusion that the law of riparian rights
would be incompatible with local conditions
in Utah, "the rule contended for by appellant
'plaintiff), if it ever was recognized and en-
forced in this jurisdiction, should be abrogated
and abolished." Applying the theory of appor-
tionment according to surface area, the plain-
tiff's admission that she was receiving her
portion was held fatal to her cause of action.
There is much in these Utah decisions to
support the position we here take. In so far
as they reject prior appropriation as the basis
and measure of the right to the waters of an
artesian basin, we are constrained to disagree
with them. We are not ready to assume, how-
ever, that that learned court has necessarily
said the final word on this subject In nei-
ther case was the doctrine of prior appro-
priation pressed. In the Horn Case the re-
lief sought was equally available under either
doctrine. Had the conditions been different,


N. M. 975


and had the Legislature of Utah enacted such
a statute as ours, there might have been a
different pronouncement. With the utmost
deference; we make this criticism of the
Glover decision. It challenges what we ac-
cept as fact, that the doctrine of correlative
rights of artesian owners is the natural and
logical outgrowth of the common-law doc-
trine of riparian rights. Recognizing, as we
do, that California decisions are not of con-
trolling weight, the Glover decision neverthe-
less adheres to the doctrine of correlative
rights, developed especially in California, in-
stead of going to the root of the matter and
applying the Utah doctrine of prior appro-
priation. The very reason which' led the Su-
preme Court of Utah to reject that part of
the correlative rights doctrine which limits
reasonable use to use on the land, the fact
that it is not adapted to local conditions, sug-
gests, in our judgment, rather a rejection of
the doctrine of correlative rights than a
modification, resulting in equal rights-a re-
sult, in our view, no better adapted to local
conditions, and unsupported by established
principles.
In Idaho a statute (Rev. Codes, 3242) pro-
vided that "the right to the use of waters of
rivers, streams, lakes, springs and subter-
ranean waters may be acquired by appropria-
tion." Under that statute it was held that,
"where percolating water exists in a state of
nature generally throughout a tract of land
that has been subdivided, the ownership of
which is held in different proprietors,
* an injunction will issue to restrain
any permanent interference by an adjacent
land owner with the right to the use of sub-
terranean waters acquired by a prior appro-
priator." Bower v. Moorman, 27 Idaho, 162,
147 P. 496, Ann. Cas. 1917C, 99. The "rea-
sonable use" doctrine was in that case exam-
ined and apparently rejected. This is. the
only case which we are able to invoke as
precedent for the conclusion here reached.
In a later Idaho case, it was held by a di-
vided court that prior appropriation did not
apply to "mere percolating waters or waters
gathered together in wells upon the lands of
the owner of the fee." Public Utilities Com-
mission v. Natatorium, 36 Idaho, 287, 211 P.
533. To what extent the later decision nar-
rows the rule we need not inquire. The
earlier case supports, and the later does not
oppose, our conclusion that the waters of an
artesian basin whose boundaries have been
ascertained are subject to appropriation.
In Vanderwork v. Hewes and Dean, 15 N.
M. 439, 110 P. 567, the territorial Supreme
Court held that it was not within the jurisdic-
tion of the territorial engineer, under the
statute (Code 1915, 5654), to license an ap-
propriation of water seeping from an un-
known source. Whether subject to appropria-
tion at all was left an open question. The








286 PACIFIC REPORTER


court said that, if such water was subject to
appropriation, "it would be governed by the
general law of prior appropriation which is
applicable to the arid lands of the West."
The idea suggested is that the mere statutory
subjection of some classes of water to the
jurisdiction of the state engineer does not
necessarily change the law as to other wa-
ters. That being undoubtedly true; there
would be nothing to prevent later extensions
of such jurisdiction. The court read Katz v.
Walkinshaw, supra,' as applying to "the dis-
position of percolating water from large areas
of land saturated with artesian water,
the same rules of law pertaining
to. surface and subterranean streams." It
found that the seepage water in question was
not of that character. Had it found other-
wise, it would have had the question here
present. And, if it had applied "the same
rules of law pertaining to surface and sub-
terranean streams," it would necessarily have
held that the water was subject to prior ap-
propriation, even though not by statute made
subject to the jurisdiction of the territorial
engineer.
So we are led to conclude that chapter 182
is fundamentally sound. We now pass to
the consideration of objections to its present
form.
Appellees contend that the attempt, by sec-.
tion 5 of the act, to delegate to 10 per cent.
of the water users the power to put the act
into effect, violates section 1 of article 4 of
the Constitution, which vests such power in
the Legislature; that the statute attempts to
extend the provisions of existing laws with-
out setting them out in full, in violation of
section 18, art. 4 of the Constitution; that
legislative power to determine the method
and measure of appropriation and use is
sought to be delegated to the state engineer
in further violation of section 1, art. 4, of the
Constitution; that any rules and regulations
for the supervision and control of under-
ground waters which the state engineer may
have assumed to make are void because not
authorized by the statute; that there is an
attempt at class legislation in violation of
section 18, art. 4, of the Constitution, and in
,violation of the Fourteenth Amendment;
and, finally, that the act is void for indefinite-
ness and uncertainty, in that it fails to pre-
scribe the manner of appropriation of wa-
ter of artesian basins, or for the control there-
of by any authority.
In considering these objections we, of
course, have in mind the familiar principles
that an act of the Legislature will not be
declared unconstitutional in a doubtful case,
and that, if possible, it will be so construed
as to uphold it.
[2] We do not construe section 5 as intend-
ed to delegate to 10 per cent. of the water
users the power to determine whether in a


particular case the act shall have effect. As-Ak
we have already concluded, in Its provision ,
that the waters of artesian basins are sub-
ject to prior appropriation, the act is declara-
tory. Whether the state engineer shall have
jurisdiction over such waters is, however, a
matter for legislative determination. He will
have such jurisdiction as the statute gives
him. Vanderwork v. Hewes and Dean, sa--
pra. Before he can assume jurisdiction over--
underground bodies he must find that they -.
have boundaries reasonably ascertained" by-
scientific investigations, or by surface indlea.
tions. That determination is, of course, to be -:-',.
made by him-not by 10 per cent. of the wa- -.'-
ter users. The petition which they are to.- \"
file is merely the statutory method of onvok- '.
ing such determination. .
The remaining objections do not require
separate treatment. It would not be easy
so to treat them, as the arguments overlap.
Before proceeding, it may be well to take
a brief survey of the statute.
It is apparent at once that, standing alone,
the.act would be subject to serious objec-
tions. That part of the statute still to be
considered consists of four brief sections-. .
The first declares certain waters subject to
appropriation for beneficial use. The second ..'
places the waters, their appropriation and
use, under the supervision and control of r .'
the state engineer. The third recognfzes past -
beneficial use as an appropriation, subject
as to future use to.rules and regulations of
the state engineer, not necessarily different
from the rules applicable to the use of water ..
newly appropriated. The fourth simply ex- -
cludes domestic and stock-watering uses from '
the operation of the act.
If that were the sum total of law upon -.
the subject, there might be force in the con-
tentions that it attempted to confer legisla.
tive or arbitrary powers on the state engi- .'
neer, and it would .be worth considering '...
whether, except as to waters already in use,
the state engineer is given power to make .
rules and regulations.
But each of the first three sections contains .'f- ,
reference to the laws of the state. Mauni-
festly it was intended to complete the statute "'
in its meaning and operation by extending
the provisions of other laws to include the
subject-matter and conditions of chapter 182.
There can be no doubt of the intended refer-
ence to chapter 114 of the CcJe of 1t1li, enti-
tied "Waters," and particularly to article 1
thereof, entitled "Statutory Appropriation."
Other existing law to which reference might
have been made, and may have been intended,
is chapter 101 of the Laws of 1925, as amend-
ed by chapter 149 of the Laws of 1927. Here
artesian wells are defined; their construe- -
tion, repair, and use regulated, etc. The orig- -"
final act failed to bring artesian wells within '
the jurisdiction of the state engineer, but the


._77


976 K. M.








YEO v. TWEEDY
286 P.


amendatory act did so. The latter, being am
act of the same legislative session, should
doubtless be construed 4i pari material with
chapter 182.
[3] If these provisions of existing law have
been properly extended, little, if anything, is
left to the objections last stated. So we pass
them and proceed to inquire whether the at-
tempt to extend them was in violation of sec-
tion 18, art 4, of the Constitution.
This matter of extension statutes was con-
sidered by this court in State v. Armstrong.
31 N. M. 220, 243 P. 333, which both counsel
rely upon. We there held that the Legislature
could not, by reference, extend the penal pro-
visions of the National Prohibition Act. But
the decisions there reviewed pointed out, and
we approved, a distinction, which we desig-
nated the "Arkansas Rule," and we said that
we were not prepared to reject another dis-
tinction which we designated the "Kentucky
Rule." The Arkansas rule permits reference
to existing law for methods of procedure, but
not to confer or take away positive and sub-
stantial rights. The Kentucky precedent up-
held a reference to existing law for the con-
ditions under which'an expressly granted new
right might be effectuated.
We have here held that. in declaring ae-
stan waters subject to aunronriation. the
statute ha neither created nor taken away a
Sbut we are not so sure that it has not
done so in enlarging the jurisdiction of the
state engineer and attempting to extend the
existing statutes regulating the appropriation
and use of water. A provision that the per-
son desiring to appropriate .subterranean wa-
ter should proceed in the same manner as if
he desired to appropriate surface water might
perhaps be upheld, but a provsion that the
use of subteran, n watirs shall b NUlgct
to the same rules and regulations Is differ.
nT It would seem, without deciding the
question, that by such a provision positive and
substantial rights would be created and per-
haps taken away. For instance. in the ab-
sence of chapter 182, an appropriation would
be deemed abandoned, unless reasonably con-
tinuous use were made ofit. Unde t. U r that
chapter and the irrigation code, which it seeks
to extend, nonuse for four years constitutes
abandonment. Code 1915, 5701. In the ab-
sence of chapter 182 whatever appeared to
the courts to constitute waste would no doubt
have been enjoined. Under chapter 182, if It
be deemed to include, by reference, the arte-
sian well act, waste is defined, made punish-
able, and wells not properly equipped declared
a nuisance. Laws 1925, c. 101, S 2, 3, 4 (as
amended), 5, and 6. If is doubtful whether
the Constitution permits such provisions to
be extended by reference.
We pass this for the moment to inquire:
To what "laws of this state" is reference
made? In section 1 the reference is undoubt-
286 P.-62


N.M. 977


edly to the irrigation code. But section 2 is
dubious. As to artesian waters there was a
special act regulating their use and requir-
ing application to the state engineer for a
permit before a well could be constructed or
repaired. This act has not been repealed. It
cannot be ignored. The amendment to it is
in parn material with chapter 182. Attempting
-to read into section 2 the "laws of this state"
as to "method and manner of appropriation
and use" of underground waters, it would
seem that as to artesian waters one must ob.
tain a permit to appropriate under the irri-
gation code and a permit to construct a well
under the artesian well code, and that the
matter of abandonment would be governed by
the irrigation code and the matter of waste
by the artesian well code. If the waters were
subterranean, but not artesian, what exist-
ing law would govern "the method and man-
ner of use?"
We here approach appellee's contention that
the statute is void for indefiniteness and un-
certainty. .We think, however, that these
questions also bear on the contention that
there has been a violation of article 4, 18,
of the Constitution. That section, literally,
prohibits extension of existing statutes by
reference. But, literally, it unreasonably and
unnecessarily hampers the Legislature. So
courts have construed the section as not pro-
hibiting the extension of procedural provi-
sions by reference. While this is a departure
from the letter of the constitutional inhibi-
tion, it is not thought to violate its spirit and
remedial purpose. That purpose is to prevent
"blind legislation." State v. Armstrong, su-
pra. But, if the reference to existing law,
even in matters of procedure only, is so gen-
eral as it is here, and the intent so uncertain,
we have an Instance of "blind legislation."'
The present extension is within thine constitu-
tional prohibition, and is not within the rea-
son of the established exception, and we must
hold that it cannot be sustained.
In view of our conclusion, we find it unnec-
essary to consider whether chapter 182 is ob-
jectionable as class legislation. We also find
it unnecessary to decide whether the finding-
of the trial court that the area in question
contains two distinct artesian basins rather
than one is supported by substantial evidence.
In the Tweedy Case, where the injunction
was awarded, the only questions of law ap-
parently raised were that the act sought to
take away vested rights, and that it sought to
delegate power to 10 per cent. of the water
users to put the act into effect. We have here
overruled both of these contentions. Conse-
quently the trial court has not been put in
error. Yet, as the judgment awarded an in-
junction to the state engineer, proceeding un-
der powers not constitutionally conferred, it
should not be upheld. State v. Newman, 31
N. M. 435, 246 P. 901.








286 PACIFIC REPORTER


SThese cases were argued during the 1929
legislative session, counsel being desirous of
a decision in time to permit any legislation
which the-result might require. We regret
that the difficulty of the questions presented
and the extensive research and full consid-
eration required have prevented us from ear-
lier announcement of the opinion.
In appeal No. 3420 the judgment should be
affirmed and the cause remanded, and in ap-
peal No. 3408 the judgment should be re-
versed and the cause remanded, with direc-
tion to dismiss the complaint.
It is so ordered.

BICKLEY, C. J., and PARKER, J., concur.

On Motion for Rehearing.
WATSON, J.
Because of the great importance of the case,
and because of the change of personnel of this
court since the foregoing opinion was handed
down, the motion for rehearing has been
argued orally and considered by the full bench
as if upon rehearing. Nothing has been sub-
mitted to cause us to depart from the views
announced or the decision rendered. We
therefore adhere to the original opinion and
deny the motion for rehearing.

BICKLEY, C. J., and CATRON and
SIMMS, JJ., concur.

PARKER, J (dissentin
I cannot agree that the opinion heretofore
handed down, in which I concurred, should
remain as the opinion of the court. The re-
sult reached by the court is undoubtedly cor-
rect in each of the two cases. But a doctrine
is announced which I consider unsound and
unsupported by any authority, viz. that -
colating waters are, and always have been,
subject to the right of prior appropriation.
That the waters here involved are percolating
waters seems to be beyond dispute, as the dis-
trict court found. These waters are the re-
sult of precipitation in the form of rain and
snow over a large area west of the artesian
basin involved, and they find their way by
natural laws of gravitation into a pervious
stratum lying between two impervious strata.
In finding their way through this pervious
stratum, these waters filter through small
holes and interstices running from the size
of a knitting needle down to openings micro-
scopic in size (as stated by one witness). They
finally are dammed off, and the pressure be-
hind causes them to rise to the surface, when
the permeable stratum is tapped by a well,
and thus to become what we call artesian wa-
ters. They nevertheless remain percolating
waters, and the process of percolation goes
constantly on as the draft upon them con-
tinues through the wells.


The question then is whether percolating
waters were subject to law of prior appro-
priation before the enactment of chapter 182,.
Laws 1927, as declared in the opinion of the
court, or whether they were the property, ei-
ther absolutely or relatively, of the owners of
the soil through which they percolated. The
first proposition advanced in the opinion to
which I do not agree is that under the civil
law of Spain and Mexico the right of prior
appropriation of percolating waters existed.
See 2 Wiel on Water Rights (3d Ed.) f.1090,
citing and quoting from Acton v. Blundell,
12 Nees. & W. 324, where it is said that the
civil law was the same as the common law in
regard to percolating waters.
In the second place, we did not acquire the
territory in which this artesian basin lies
from Mexico, but we acquired it from the Re-
public (afterwards state) of Texas. See 8 U.
S. Stat. 511; 5 U. S. Stat. 797; 9 U. S. Stat.
108; Id. 446, the act establishing the territory
of New Mexico, and under which the United
States paid Texas $10,000,000 to establish
its western boundary where it now is and to
cede to the United States all its claims to ter-
ritory west of that line, Texas having thereto-
fore claimed to the Rio Grande from its mouth
to its source. See 9 U. S. Stat. 1005. for proc-
lamation by the President that said arrange-
ment had been consummated. The United
States has never received from Mexico any
grant or cession of lands east of the Rio
Grande. See Treaty of Guadalupe Hidalgo,
Code 1915, p. 21, and the Gadsden Treaty,
Code 1915, p. 32.
It thus appears that the civil law of Mexico
has never been extended over the eastern part
of New Mexico where the artesian basin in
question is situated.
At the common law percolating waters were
the absolute property of the owner of the fee,
and he might use it or waste it at his pleas-
ure. Dissatisfaction with this doctrine has
developed in America, and what is called the
American doctrine is generally accepted to the
effect that the owner of the fee must make
a reasonable use of the water, and the same'
may now be considered settled. But the right
to use the water by the owner of the fee has in
no way been destroyed or lessened by the-
adoption of the so-called American doctrine;
he still has as against the world the right to
capture and use it upon his own land for any
useful purpose, even if by so doing he injures
his neighbor. I do not deem it necessary to
cite or discuss the cases in detail. They are
all collected in a note to Clinchfleld Coal Corp.
v. Compton, 55 A. L. R. 1376, note beginning
at page 1385.
There has never been any legislation in this
state attempting to take away this right until
the act of 1927, and there has been no deci-
sion of this court attempting to do so. I as-
sume that, if the limits of the capacity of the


978 N. M.








MARNEY v. HOME ROYALTY ASS'N
286 P.


artesian basin has been reached by the draft
already made upon it, the Legislature might,
perhaps, declare these waters public waters
under its police power, and make them sub-
ject to appropriations already made, but pro-
viding for due compensation to owners whose
rights are thus curtailed; but, in attempting
so to do, as it has done in the act of 1927, it
has violated almost every guaranty in the
Bill of Rights in the federal and our state
Constitution, only -one of which need be men-
tioned, viz. private property may not be tak-
en for the public use without just compensa-
tion.
I understand the position taken in the opin-
ion to be entirely unnecessary to a decision of
the case; and do not believe that this court
should, when unnecessary, indulge in a dis-
cussion and announcement of a doctrine
which, to say the least, is of a very doubtful
soundness and very far-reaching in its con-
sequences.






MARNEY v. HOME ROYALTY ASS'N OF
OKLAHOMA.
No. 3303.

Supreme Court of New Mexico.
Jan. 22, 1930.

Rehearing Denied April 17, 1930.

Syllabus by the Court.
1. Licenses <=39--Complaint setting forth
speculative character of securities, and failure
to obtain permit, warranted court in sustain-
ing demurrer to answer failing to deny allega-
tion (Blue Sky Law).
Judgment following order sustaining demur-
rer to answer is supported by facts specifically
alleged in the complaint and not denied.
2. Licenses S=8(I)-Blue Sky Law is penal
and must be strictly construed; statute should
not be construed to exclude ordinary meaning
of terms In favor of narrow meaning which
would tend to defeat purpose of legislation
(Blue Sky Law).
The Blue Sky Law (chapter 44, Laws 1921)
is penal and to be strictly construed; but not
to exclude the ordinary meaning of the term em-
ployed in denouncing the act, in favor of its
narrower meaning, where the latter meaning
would tend to defeat the salutary purposes of
the legislation.
3. Licenses <=18I/2-Conveyance of Interest in
mineral lease, in consideration of participation
In assets and profits, was "sale" within Blue
Sky Law..
The consideration for the "speculative se-
curity" being a conveyance of minerals and min-
eral rights, the transaction is a "sale" witldin


N.M. 979


the prohibition of the Blue Sky Law (chapter
44, Laws 1921).
[Ed. Note.-For other definitions of "Sale,"
see Words and Phrases.]
On Motion for Rehearing.
4. Appeal and error :832(4)-Ordinarily con-
tentions first made on motion for rehearing
will not be considered.
Contentions first made on motion for re-
hearing will not ordinarily, be considered as
grounds for reversal.

Appeal from District Court, Union Coun-
ty; Kiker, Judge.
Suit by George W. Marney against the
Home Royalty Association of Oklahoma.
Judgment sustaining a demurrer to the an-
swer, and defendants appeal.
Affirmed, and cause remanded.
Easterwood & Thompson, of Clayton, and
E. R. Wright, of Santa PF, for appellant
T. A. Whelan, of Lovington, for appellee.

WATSON, J.
Appellee executed to the trustees' of the
Home Royalty Association of Oklahoma, a
common-law trust, a conveyance of an un-
divided one-half interest in all the oil and
other minerals in and under 820 acres of
land, with the right to explore for, mine, and
operate the same for twenty-one years, and
as much longer as production should contin-
ue. As the consideration therefore he received
from the trustees a contract amounting to a
certificate of participation in the assets and
profits of the trust estate. This contract pro-
vided that, for the purpose only of determin-
ing appellee's proportionate interest in such
assets and profits, the value of the mineral
rights so conveyed was fixed at $820.
The suit is to cancel the mineral convey-
ance. Among the grounds set up, and the
only ground necessary here to notice, is that
this certificate of participation was a "spec-
ulatlve security" within the meaning of the
Blue Sky Law, Chapter 44, Laws 1921, and
sold to appellee in violation of that act, since
the association had not taken any of the
steps required for obtaining a, permit, and
had not obtained one.
Appellants here object that the record dis-
closes neither that the certificate of partici-
pation was a "speculative security," nor
that they had failed to take the necessary
steps to obtain or failed to obtain a permit.
The cause was not tried upon the merits and
there are no findings. The judgment follows
an order sustaining a demurrer to the an-
swer: It is from the pleadings, therefore,
that we must determine these disputed facts.
[1] The complaint set forth the speculative
character of the security in the language em-


=For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


I _




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