[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 167 The question for decision is whether an artesian conservancy district organized under the provisions of L. 1931, c. 97 (1941 Comp., Art. 13, c. 77) is authorized to maintain a suit to enjoin the use of water taken from an artesian well drilled on land located outside the exterior boundaries of the district but alleged to be supplied by the artesian basin underlying the lands within the territorial boundaries of the district to the detriment of the water users of the district.
As filed the complaint upon which the hearing was had joined as co-plaintiffs five landowners, each of whom was alleged to be the owner of lands within the district which were and had been for more than 30 years irrigated by wells supplied by waters from the artesian basin underlying the lands within the district. Prior to trial, however, four of the five co-plaintiffs upon their own several applications were dismissed out as plaintiffs and the fifth went out upon suggestion of the original plaintiff, the conservancy district, that a mistake had been made in his joinder as a co-plaintiff upon the assumption that he had a sufficient interest to seek relief as such. This left as the sole plaintiff, The Pecos Valley Artesian Conservancy District.
The cause was put at issue by plaintiff's first amended complaint, the defendant's first amended answer and the plaintiff's reply thereto. Certain facts are settled by the pleadings, to-wit: (1) That the land on which the defendant drilled his well has never been within the territorial boundaries of the district, unless action by the State Engineer subsequent to the drilling of defendant's well agreed by both parties to have been unauthorized, placed such land territorially within the district; (2) that at the time of drilling the well the defendant had made no application for a permit to drill the same pursuant to the provisions of 1941 Comp. § 77-1204; (3) that after drilling the well and applying to beneficial use waters therefrom on 285.6 acres of land in quantities of 2000 gallons per minute, the defendant filed in the office of the State Engineer a declaration of water rights pursuant to 1941 Comp. § 77-1105, followed by an amended declaration correcting the number of acres irrigated to 285.6 (acres); (4) that prior to the drilling of this well artesian water had never been developed on defendant's land.
Notwithstanding the agreement of the parties on the foregoing salient facts, issue was joined in the pleadings on certain others *Page 169 of equal importance. It was alleged by the plaintiff and denied by the defendant that the latter's well was taking water from the Roswell Artesian Basin to the detriment of other water users of the plaintiff district. Similarly, there was allegation and denial that there existed unappropriated waters in the Roswell Artesian Basin, either at the time the defendant began drilling his well or at any time thereafter.
The trial judge, deeming the case ripe for judgment on admitted facts, heard no evidence. He ruled as a matter of law that the Pecos Valley Artesian Conservancy District was not a proper party plaintiff and that it was without power or authority to maintain the suit. Although there was no formal motion for judgment on the pleadings, the defendant appears to have invoked a ruling on the plaintiff's capacity to maintain the suit, following which the latter requested certain conclusions of law. These moves were treated by the trial court as authorizing it to decide the case on the pleadings and it acted accordingly. The plaintiff's requested conclusions of law (all of which were refused) and those actually adopted by the trial court, so narrow and delineate the primary issue between the parties that we set them out in full, as follows:
"This matter being before the court at this time on the sole question as to whether The Pecos Valley Artesian Conservancy District is a proper plaintiff, the following Conclusions of Law are requested by said plaintiff.
"I. The Pecos Valley Artesian Conservancy District, a corporation has the power generally to seek by suit to conserve the waters of the artesian basin.
"II. The Pecos Valley Artesian Conservancy District has such an interest in the result of this suit which permits them (it) to sue for the purpose of conserving the artesian waters of the District.
"III. The mere fact that defendant's land upon which the Artesian well was drilled is not within the exterior boundaries of the District is not sufficient to bar this plaintiff from sueing to determine whether there was unappropriated water and whether the defendant's well has tapped the same artesian basin the waters of which this plaintiff seeks to conserve.
"IV. It is the duty of this plaintiff to do all lawful things to conserve the waters of the artesian basin in question and if a suit is deemed necessary, to do that thing, this plaintiff has the right to maintain such suit even though the District as such owns no water."
Three days after the filing of the foregoing request for conclusions of law by the plaintiff, the trial court made its own conclusions of law embraced in an order dismissing plaintiff's suit, and reading as follows:
"This matter coming on this day to be heard by the Court on the motion of defendant that the Pecos Valley Artesian Conservancy District, plaintiff, is not a *Page 170 proper plaintiff in this action and fails to state a claim against defendant upon which relief can be granted, and said plaintiff and said defendant being represented by O.O. Askren and G.T. Watts for plaintiff, and Harold Hurd and L.O. Fullen for defendant, and the matter having been fully argued and submitted to the Court, the Court finds:
"1. That both parties, plaintiff and defendant, agree and have pleaded that the artesian well of the defendant, Frank Peters, is not now and never was within the defined boundaries of the Pecos Valley Artesian Conservancy District.
"2. That said plaintiff, The Pecos Valley Artesian Conservancy District is not a proper plaintiff; that it has no power, authority or jurisdiction to maintain this suit.
"3. The Requested Conclusions of Law by said plaintiff, The Pecos Valley Artesian Conservancy District, numbered from one to four, inclusive, are refused.
"It is therefore, ordered that the suit of The Pecos Valley Artesian Conservancy District, plaintiff, against the defendant Frank Peters, be and the same hereby is dismissed.
"To all of which the said plaintiff, the Pecos Valley Artesian Conservancy District, excepts."
The plaintiff as appellant prosecutes this appeal for the revision and correction of the order so entered.
In order intelligently to decide the question here presented, it will be necessary to consider several statutes having a bearing thereon. The first statutory authority for the appropriation of underground waters appears to have been given by L. 1927, c. 182, 1929 Comp. §§ 151-201 to 151-205, which this court held unconstitutional in Yeo v. Tweedy, 34 N.M. 611,286 P. 970, as an attempt to extend by reference existing statutes other than procedural in violation of Const. Art. 4, § 18. The nullification of this statute by court decision was followed by its re-enactment in amplified and enlarged scope as L. 1931, c. 131, 1941 Comp. §§ 77-1101 to 77-1111. This statute will be referred to later in greater detail. However, the plaintiff was organized as an artesian conservancy district under the provisions of L. 1931, c. 97, 1941 Comp. §§ 77-1301 to 77-1321, which, except for an amendment of § 18 thereof by L. 1941, c. 98, § 4, still exists in its original form. Sections 1 and 2 of the enabling act read:
"The purpose of this act is to provide for the organization of artesian conservancy districts to conserve, where necessary, the waters in any artesian basin or basins within the state, the boundaries of which have been scientifically determined by investigations, and where such waters have been beneficially appropriated for private, public, domestic, commercial or irrigation purposes, or otherwise."
"Any artesian conservancy district organized pursuant to the provisions of this act shall include all lands overlying any such artesian basin and any land outside of the boundaries thereof upon which waters *Page 171 from such basin are being used, either for private, public, commercial, domestic or irrigation purposes, or otherwise.
"Two (2) or more such artesian basins or reservoirs may be embraced in the same conservancy district, where the same are so closely related, geographically or otherwise, that the waters therein can more surely and effectively be conserved by the unified control of one (1) district, and where the improvements contemplated will tend to conserve the waters in each basin so included."
Section 3 of the Act authorizes initiation of proceedings to establish an artesian conservancy district by the filing of a petition in the district court of the county wherein the greater portion of the lands to be embraced in the district are situated. It must have been signed by owners of more than one-third of the real property in the proposed district, in either acreage or value, as shown by the last preceding assessment roll on the county or counties into which any portion of the district extends. The petition must give the proposed name of the district, a statement of the purpose for which it is to be formed and disclose how the property embraced in the district will be benefited by the accomplishment of some one or more of the purposes enumerated, "and giving a general description of the property to be included in the proposed district."
When the petition is filed, the court must fix a time and place not less than 60 days thereafter for hearing thereon and the clerk is called upon to publish notice of the hearing in each county in which there is property to be included in the proposed district, or if there be none in any such county, in a newspaper of general circulation in the proposed district. Only a general description of property to be included in the district, sufficient to enable an owner to determine whether or not his land is included, is required. Publication must be for at least once each week for four consecutive weeks.
Other sections of the Act authorize the filing of objections to the organization of the district and for hearings thereon. Under § 11, however, the Act provides that at such hearing, if the allegations of the petition are found to be true and objections have not been filed or, if filed, have been dismissed, then, it is further provided by said section:
"* * *, the court shall, by order, adjudicate all questions of jurisdiction, declare the district organized and give it a corporate name, by which, in all proceedings, it shall thereafter be known, but said decree shall not be final as to the boundaries of said district, or as to the lands to be embraced therein, until the approval of the report of the commissioners, as hereinafter provided, at which time a final decree as to the property to be embraced in the district shall be entered, and no appeal therefrom as to any particular tracts or parcels of property shall, in any way, prevent the district from functioning, nor prevent the levy of any taxes against such property in question pending the appeal therefrom. *Page 172
"Upon declaring the district organized, the same shall be a political subdivision of the state of New Mexico, and a body corporate with all the powers of a public or municipal corporation; shall have power to sue and be sued, to incur debts, liabilities and obligations, to exercise the right of eminent domain and of taxation and assessment as herein provided and to do and perform all acts herein expressly authorized, and all other acts necessary and proper for carrying out to all intents and purposes the objects for which the district was created, and for exercising the powers with which it is invested." 1941 Comp. § 77-1311.
Under the provisions of § 13 of the Act, 1941 Comp. § 77-1313, it is made the duty of the court within ten days after declaring the district organized to appoint three owners of land within the district to determine and define the boundaries of the district and to make up a list of property to be embraced and included in the district. These persons are designated as "Commissioners." This section further provides:
"Said commissioners shall include all property in the district which has, within four (4) years, received some benefit, either directly or indirectly, from the artesian waters underlying the district, or which may be benefited in some degree by the improvements to be made by the district. Property benefited by the artesian waters, and the improvements to be made by the district, shall include property upon which waters from such basin, or basins, is, or may be, used for irrigation, domestic, public or commercial purposes, and shall include any such property, whether the same be owned by an individual, corporation, village, town, city or other municipality, or public corporation."
Provision is made for the drawing up of an election code by the Commissioners under which directors are to be elected, one from each of 5 districts into which the Commissioners, with the approval of the court, are directed to divide the conservancy district. Election is to be by popular vote of the property owners in each district. After making provision for organizing the Board of Directors by election of a president and secretary and treasurer and for adoption of by-laws, § 17 of the Act, 1941 Comp. § 77-1317, among other things, provides:
"The board of directors are hereby vested with full power and authority to do and perform every act and thing necessary to carry out, to all intents and purposes the provisions of this act, purposes and objects for which the district is created, including the power to enter into contracts with, and engage all necessary agents and employees, and to fix their compensation, and to require of any such employees bonds for the faithful performance of their duties, as to the directors may seem proper."
In § 18 of the Act the directors are ordered to proceed, following formation of the district, with the cooperation of the State Engineer and United States Geological Survey, if such cooperation is offered, to outline plans and to make an estimate of the cost of improvements needed in the district. *Page 173 This section, as originally enacted, further provides as follows:
"The improvements to be made shall be such as are calculated to accomplish the objects for which the district was created, and may include the plugging of all Artesian wells within the district found, by tests, to be materially leaking, or wastingthe waters of the Artesian basin, as aforesaid; provided, however, where any such well is being beneficially used, the same shall not be plugged without the written consent of the owner thereof. All such artesian wells found to be wasting the watersof the artesian basin, as aforesaid, are hereby declared to be a public nuisance, and the Directors of the district, and those under their authority, shall have the right and authority to go upon the lands, upon which any such well is located, to abate such nuisance by plugging or repairing any such well." Laws 1931, c. 97.
This section, as already stated, has been amended by L. 1941, c. 98, § 4, and in its present form the entire section reads as follows:
"After the formation of any artesian conservancy district, it shall be the duty of the board of directors from year to year to outline a plan or program of water conservation and administration, and they shall make an estimate of the cost of administration, equipment and improvements necessary to carry out such program from year to year, when the cost thereof is to be paid by tax levies. In carrying out any such plan or program the board of directors shall have authority to cooperate with the state engineer and the United States geological survey, where such cooperation is offered.
"The program to be carried out and the improvements to be made and the equipment to be purchased shall be designed to accomplish the objects and purposes for which the district was created, and may include the plugging of all wells within the district found by tests to be materially leaking or wasting any waters includedin the district. The directors may proceed to carry out the improvements so outlined in such manner as may be deemed for the best interest of all concerned, and may enter into any contracts or do or perform any act or thing necessary or advisable to carry out to all intents and purposes the objects and purposes for which the district was formed, and shall have the right of ingress and egress at all reasonable times to all wells within the district for the purpose of making leakage tests, and otherwise determining that such wells are properly equipped and are being used so as to conserve the waters included in theconservancy district. All wells included in the district found to be leaking or wasting such waters, are hereby declared to be a public nuisance, and the directors of the district and those under their authority shall have the right, power and authority to go upon the lands upon which any such well is located to abate such nuisance by plugging or repairing any such well." (Emphasis ours) 1941 Comp. § 77-1318. *Page 174
It is to be noted for such bearing as the change may have on the case, that the Legislature changes the phrase "wasting the waters of the Artesian basin," as it appears in the 1931 law, to the phrase "wasting any waters included in the district" in connection with directions as to plugging leaking wells.
The same session of the Legislature which enacted L. 1931, c. 97, also enacted another statute bearing on the question at issue in this case designated as L. 1931, c. 131, consisting of 11 sections. Sections 1 and 2 of said Act, 1941 Comp. §§ 77-1101 and 1102, read as follows:
"The waters of underground streams, channels, artesian basins, reservoirs, or lakes, having reasonably ascertainable boundaries, are hereby declared to be public waters and to belong to the public and to be subject to appropriation for beneficial use."
"Beneficial use is the basis, the measure and the limit to the right to the use of the waters described in this act."
Section 3 of this Act provides that any person desiring to appropriate underground waters shall make application to the State Engineer in a form to be prescribed by him in which the applicant shall designate the particular underground stream, channel, artesian basin, reservoir or lake from which water is to be appropriated, the beneficial use to which it is proposed to apply such water, the location of the proposed well, and so forth. The State Engineer is then called upon to give notice by publication in a newspaper of general circulation of the filing of such application and that objections to the granting of the permit may be filed within 10 days following last publication. After expiration of the time for filing objections, if none have been filed, the State Engineer is directed to grant the application if he finds there are unappropriated waters available in the underground stream, channel, artesian basin or reservoir.
If objections have been filed provision is made for a hearing in the courthouse of the county in which the proposed well will be located. If after such hearing it appears there are no unappropriated waters in the designated source, or that the proposed appropriation would impair existing water rights from such source, the application is to be denied. Sections 4, 5 and 6 of the Act 1941 Comp. §§ 77-1104, 77-1105 and 77-1106, read as follows:
"Existing water rights based upon application to beneficial use are hereby recognized. Nothing herein contained is intended to impair the same or to disturb the priorities thereof."
"Any person, firm or corporation claiming to be the owner of a vested water right from any of the underground sources in this act described, by application of waters therefrom to beneficial use, may make and file in the office of the state engineer a declaration in a form to be prescribed by the state engineer setting forth the beneficial use to which said water has been applied, the date of first application to beneficial *Page 175 use, the continuity thereof, the location of the well and if such water has been used for irrigation purposes, the description of the land upon which such water has been so used and the name of the owner thereof. Such declaration shall be verified but if the declarant cannot verify the same of his own personal knowledge he may do so on information and belief. Such declarations so filed shall be recorded at length in the office of the state engineer and may also be recorded in the office of the county clerk of the county wherein the well therein described is located. Such records or copies thereof officially certified shall be prima facie evidence of the truth of their contents."
"Declarations heretofore filed in substantial compliance with section 5 hereof shall be recognized as of the same force and effect as if filed after the taking effect of this act."
The Legislature in 1933 enacted L. 1933, c. 122, amending § 9 of the foregoing Act, 1941 Comp., § 77-1109, but not in any respect material to the present controversy and adding, by way of amendment, in § 2 thereof, a new § 11, 1941 Comp. § 77-1111, reading as follows:
"The state engineer is hereby given the power and it is made his duty to formulate rules and regulations for the purpose of carrying out the provisions of (this) act, which rules and regulations shall be printed and made available for distribution to all applicants."
Still another statute, L. 1935, c. 43, 1941 Comp. §§ 77-1201 to 77-1212, must be considered if we give a complete picture of the statutory background. It is "an act relating to artesian wells and artesian basins; providing for the control and regulation of artesian wells; giving authority to the state engineer to promulgate rules and regulations governing the drilling, casing, repairing, plugging, and abandonment of artesian wells; defining waste of artesian waters, declaring such waste to be a public nuisance," etc.
Section 1 declares an artesian well for purposes of the Act to be an artificial well which derives its water supply from any artesian stratum or basin.
Section 2 of the Act reads:
"All artesian waters which have been declared to be public waters shall be under the supervision and control of the state engineer, as provided by this act, but where artesian conservancy districts have been duly organized pursuant to chapter 97 of the New Mexico Session Laws of 1931 and acts amendatory thereof, such districts shall have concurrent power and authority with the state engineer to enforce the regulatory provisions, as herein provided, in so far as the waters to be conserved and controlled by the respective districts are affected.
"This act shall not be construed to affect the provisions of chapter 131 of the New Mexico Session Laws of 1931, being `An act relating to underground waters, declaring certain underground waters to be public waters and relating to the beneficial appropriation *Page 176 thereof and repealing article 2 of chapter 151 of the New Mexico Statutes Annotated, 1929 Compilation', and the state engineer may intervene on behalf of the state in any proceeding brought by or against any artesian conservancy district where it is necessary for the proper protection or adjudication of rights to the public waters of the state."
Under section 4 the State Engineer is directed to make and enforce reasonable rules and regulations to govern the drilling, casing, plugging and abandonment of artesian wells. The section further provides that before any artesian well is to be drilled the owner of the land on which same is to be drilled must apply to the State Engineer for permit to drill the same and a violation of this requirement is made a misdemeanor punishable by fine. L. 1935, c. 43, § 12, 1941 Comp. § 77-1212.
The act goes on in section 7 to declare as a public nuisance any abandoned artesian well as to which the right to use the waters has reverted to the state if waters from any artesian basin are wasting by reason thereof and authorizes the State Engineer or the Artesian Conservancy District in which the well is located to abate such nuisance in a summary manner without notice to the owner by plugging or otherwise. So much for the statutes.
In stating in the first paragraph of this opinion the question for decision, we perhaps have gone beyond the very narrow issue upon which the matter seems to have been ruled below and have posed the more fundamental one of the extent of the right of an artesian conservancy district to conserve the waters of the artesian basin constituting the source of supply for its users, where such waters are tapped beyond its territorially defined boundaries. In the court below, as well as here, it seems not to have been nor to be seriously questioned that, but for the dismissal out as plaintiffs of all the actual landowners and appropriators to beneficial use of waters of the basin, the complaint would have stated a cause of action. Nevertheless, because the district owned no land being serviced by the waters of the basin nor any water right on its own, it was thought by the defendant and the trial court as well not to be the real party in interest and hence not a proper party plaintiff.
Under the provisions of 1941 Comp. § 77-1311 (L. 1931, c. 97, § 11), when the district is organized, it becomes a political subdivision of the state and a body corporate, with power "to sue and be sued" and "to do and perform all acts * * * expressly authorized, and all other acts necessary and proper for carrying out to all intents and purposes the objects for which the district was created, and for exercising the powers with which it is invested."
One of the prime objects for which the plaintiff was organized, as expressed both in the title of the enabling act and in the first and as well in several succeeding sections, is "to conserve" the waters of the artesian basin which supplies water to the *Page 177 users of the district. In so far, therefore, as the plaintiff's right and competency to maintain the suit is concerned, what was said in Carlsbad Irrigation District v. Ford,46 N.M. 335, 128 P.2d 1047, 1050, in disposing of a similar challenge to the district's standing as a party plaintiff, applies with equal force and pertinency, to the challenge here made.
The court said:
"Errors assigned by appellants are eight in number, and are argued in the briefs under designation as points. The first is that plaintiff is not a proper party to maintain this suit.
"The pleadings, findings and decision of the trial court disclose such a relationship between the plaintiff and the Government of the United States, which had an interest in the right to use the waters involved, and the land owners who are the beneficial users of the water, and for whose benefit plaintiff was organized and maintains its existence and service, and to whom it owed a duty of impounding, preserving and distributing the water involved, that we conclude as did the district court that the plaintiff was a proper party to maintain this action."
Decisions from other jurisdictions lend support to the conclusion we reach on plaintiff's right to maintain the present suit. See Coachella Valley County Water Dist. v. Stevens,206 Cal. 400, 274 P. 538; Salt River Valley Water Users' Ass'n v. Norviel, 29 Ariz. 360, 241 P. 503; Oregon Const. Co. v. Allen Ditch Co., 41 Or. 209, 69 P. 455, 93 Am.St.Rep. 701; Caviness v. La Grande Irr. Co., 60 Or. 410, 119 P. 731; United States v. Tilley, 8 Cir., 124 F.2d 850.
In Coachella Valley County Water Dist. v. Stevens, supra, the Supreme Court of California dealt with the precise question now before us. The defendant was sinking wells tapping the artesian basin in which the water users within the plaintiff district claimed superior rights. The district, as a plaintiff, was asserting that right for them in seeking to enjoin the defendant. Its capacity and right to do so was challenged and sustained. One of the chief duties of the plaintiff district was "to conserve water for future use." [206 Cal. 400, 274 P. 541] Among other things, the court said:
"In the present case we think it indisputable that the power conferred on a county water district to sue and be sued with respect to the preservation and conservation of the sources of water supply used and usable for the lands and inhabitants within the district is directly in line with the objects of the creation of the district and germane to the purposes for which it was organized. The power to sue and be sued has been conferred upon numerous public corporations of this character and the conferring of such power without specific mention thereof in the title of the acts has not, so far as we have discovered, ever been successfully brought into question. * * *
"Furthermore, we find no objection in providing in the body of the act without specific mention thereof in the title for the prosecution of proceedings to prevent interference with or diminution of the natural *Page 178 flow of any stream or subterranean water supply used or useful for any purpose of the district or a common benefit to the lands within the district or its inhabitants. One of the express purposes of the act is toconserve water for future use and to preserve water and waterrights. The fact that the district as such does not assert titlein itself to any of such rights is of no consequence, if it hasthe power to proceed in a representative capacity to protect therights of all of the landowners and other users of water in thedistrict. And this power the district unquestionably possessesnot only under the clear provisions of the act but underwell-recognized principles of equity jurisprudence." (Emphasis ours).
It is true that the language conferring statutory authority to sue in the California case is more explicit than any to be found in the act before us. Nevertheless, unless we are prepared to confine the meaning of the word "conserve" to plugging or repairing leaky wells, the language found in Section 11 of the act, 1941 Comp. § 77-1311, conferring upon the district the power "to sue and be sued * * * and to do and perform all acts herein expressly authorized and all other acts necessary and proper forcarrying out to all intents and purposes the objects for whichthe district was created" (emphasis ours), affords ample statutory authority to support plaintiff's maintenance of the present suit. Webster's New International Dictionary (2d Ed.) defines the verb "conserve" as meaning "to keep in a safe or sound state; to save, to preserve from change or destruction." Synonyms are listed under the definition as "maintain," "sustain," "uphold," "defend," "protect," "guard," "shield" and "secure." See, also, United States v. Mammoth Oil Co., D.C., 5 F.2d 330, 351, and Hill v. Bank of San Pedro, 41 Cal.App.2d 595,107 P.2d 399. In United States v. Mammoth Oil Co., supra [5 F.2d 331], the court declared the meaning of the word "conserve" as found in an act of Congress, in the following manner, to-wit:
"Act June 4, 1920 [34 U.S.C.A. § 524], directing Secretary of the Navy to take possession of properties within naval petroleum reserves, and conserve, develop, use, and operate them in his discretion, directly or by contract, lease, or otherwise, and use, store, exchange, or sell the products, uses the word `conserve' in its larger meaning of saving from loss, and not in its more limited meaning of holding in the ground, and thereunder the Secretary may conserve, develop, use, and operate all at the same time, and may use, store, exchange, and sell, or any of them, in his discretion, in carrying out the general purposes of the act."
We likewise think that the word "conserve" as found in our statute is used in the sense of saving or preserving from loss. In describing the nature of the improvements to be made by the district, specific means of conserving are mentioned permissively in form in the statute itself, such as plugging or repairing leaky wells and declaring a public nuisance all wells found to be wasting the artesian waters with authority in the directors to go upon any *Page 179 lands for the purpose of abating such nuisance by plugging or repairing the well. The title of the act, L. 1931, c. 97, provides for the creation of Artesian Conservancy Districts "for the purpose of conserving the waters in artesian basins." The first section emphasizes this basic thought by declaring "the purpose of this Act is to provide for the organization of Artesian Conservancy Districts to conserve, where necessary, the waters in any artesian basin or basins within the state."
It would seem an anomalous construction that confined the district in executing such a fundamental purpose to repairing and plugging leaky wells through which water was flowing in a small stream and yet denied it the power to enjoin the maintenance of an unlawfully drilled well tapping the basin through which water gushed in a torrent — in other words, to say the district could conserve and stop wastage by placing a finger in the leak but could not dam the flood in carrying out the same overall purpose. Truly, the 1941 legislature took no such narrow view of what "conserve" means when, as commented upon later, it enacted L. 1941, c. 98, among other things, authorizing artesian conservancy districts, by formal protests and objections before the State Engineer, to initiate opposition to the drilling of additional wells tapping the waters of their basins. And, if we may resort to analogy, it impresses us as an impractical and unrealistic view to ascribe to the legislature an intention to make a nice distinction between common law waste and trespass in their relative effect in keeping "in a safe or sound state" or "preserving from change or destruction" that which the district is admonished to conserve, since the wrongful act whether committed by a waster or a trespasser has exactly the same damaging effect. Cf. Roots v. Boring Junction Lumber Co., 50 Or. 298,316, 92 P. 811, 818, 94 P. 182; 1 Foundations of Legal Liability (Street) 33.
It may fairly be assumed that when our legislature enacted L. 1931, c. 97, the enabling act under which the plaintiff was organized, it was familiar with the provisions of our code of civil procedure declaratory of the equity rule permitting one or more to sue or defend for the benefit of the whole number when the question involved is one of common or general interest to many persons, or where the parties are numerous and it is impracticable to bring them all before the court. 1941 Comp. § 19-601. Cf. § 19-101 Rule 23. In Bliss on Code Pleading, 3rd Ed., 126, § 79, the author writes concerning this code provision, as follows:
"Mr. Story (Story's Equity Pleading, (10th Ed.) § 97) classifies the cases where it is applied to equity pleading under three heads:
"`First, when the question is one of common or general interest and one or more sue or defend for the benefit of the whole;second, where the parties form a voluntary association forpublic or private purposes, and those who sue or defend mayfairly be presumed to represent the rights and interests *Page 180 of thewhole; third, where the parties are very numerous, and although they have, or may have, separate and distinct interests, yet it is impractical to bring them all before the court.' These three classes are included in the two named in the statute." (Emphasis supplied.)
While the plaintiff district is a corporation rather than a voluntary association, its creation resulted from the voluntary action of the interested water users within the district and the legislature may very well have felt that it conferred no extraordinary power on the corporation (as indeed it did not) in the matter of suing or defending, in constituting it an agency authorized to do on behalf of all the water users within the district what anyone of them suing for himself and others similarly situated might alone do, even though all would be bound by the judgment rendered. Cf. Floersheim v. Board of County Commissioners, 28 N.M. 330, 212 P. 451. Indeed, many considerations, personal or financial, such as slightness of the injury to a single water user as compared with the expense of redressing it, and others, might restrain him from moving to sue or defend in a matter of common and general interest to all, where a district acting through its governing board would be more alive and alert to a situation calling for action.
The courts of sister states have employed by way of analogy this and other pertinent provisions of the code of civil procedure, common to their own as well as our statutes, in arriving at the result we reach. Coachella Valley County Water Dist. v. Stevens, supra; Caviness v. La Grande Irr. Co., supra; see, also Salt River Valley Water Users' Ass'n v. Norviel, supra, and United States v. Tilley, supra. Our 1929 Comp. §§ 105-103 and 105-104, substantially adopted as a District Court Rule in 1941 Comp. § 19-101, Rule 17(a), requires that every action be presented in the name of the real party in interest but in the very same section excepts from the requirement actions prosecuted pursuant to the next succeeding section. The latter provides that the trustee of an express trust, or a person expressly authorized by statute, may sue in his own name without joining his cestui que trust.
In Coachella Valley County Water Dist. v. Stevens, supra, commenting on these various statutory provisions, the Supreme Court of California said:
"Conceding properly, as the defendant does, that an action would lie on behalf of each landowner in the district to protect his individual right, it would necessarily follow that under section 382 of the Code of Civil Procedure one might sue for the benefit of all. See Miller v. Bay Cities Water Co., 157 Cal. 256,288, 107 P. 115, 27 L.R.A., N.S., 772. It is true that section 367 of the same code provides that every action must be prosecuted in the name of the real party in interest but the same section excepts actions prosecuted as provided in section 369 of the Code of Civil Procedure. The last section referred to provides that a person expressly authorized by statute may sue *Page 181 without joining with him the persons for whose benefit the action is prosecuted. The county water district act expressly authorizes the present action and any final determination therein would necessarily bind the parties for whose benefit it is prosecuted. Furthermore, no good reason has been suggested why, under the authority of the statute, the landowners and other water users in the district may not set up such a governmental agency to act in a representative capacity in their behalf. In our opinion they have done so and having done so they will necessarily be bound by the result of the litigation."
This Court applied certain of these statutes under similar circumstances by way of analogy where it appeared, as in the case at bar, that all those represented by the plaintiff had a common or general interest in the subject matter of the suit. La Luz Community Ditch Company v. Town of Alamogordo, 34 N.M. 127,279 P. 72. The plaintiff's right and competency to maintain the suit must be upheld.
Having thus disposed of the challenge made below and found the trial court in error, after directing entry of an order reversing and remanding the cause for a new trial, we might very well rest from our labors. Our inspection of the record fails to establish convincingly what view the trial court may have entertained upon the larger question here presented and made the basis of practically all argument contained in the briefs of counsel, viz., the control, if any, of an artesian conservancy district over waters of the artesian basin underlying the territory embraced within the district where such waters are tapped by a well located beyond the territorial boundaries of the district. Possibly, had not the trial court erroneously concluded that the plaintiff district was not the right party to raise the question, upon proper proof it might have awarded to plaintiff the injunctive relief it sought under the complaint filed. On the other hand, persuaded by the claim of defendant that the plaintiff was without power to interfere because defendant tapped waters of the basin by a well outside the territorial boundaries of the district, the court might have denied such relief. We simply cannot say with any degree of assurance what it would have done.
There is a bare possibility that the trial court may have ruled on this question (and adversely to plaintiff) in view of its finding No. 1 included in the order dismissing the complaint. This finding recites that defendant's well is outside the territorial boundaries of the district. Be this as it may, in view of the public importance of the question, particularly in the artesian belt of the state, and more especially because a present declaration of our views on the subject may avoid a second appeal following a new trial, we have concluded to express ourselves now.
Unless an artesian conservancy district organized under the Act in question possesses and can exercise the power here sought to be invoked, then the purpose of its creation is substantially curtailed. A careful *Page 182 consideration of applicable statutes reviewed at some length hereinbefore, satisfies us that if the defendant's well has tapped waters of the artesian basin underlying the territory embraced within the boundaries of the district, it is wholly immaterial that the defendant drilled it outside such territorial lines.
It would serve no useful purpose again to undertake a discussion of the status in our law of the waters of underground streams, channels, artesian basins, reservoirs or lakes, having reasonably ascertainable boundaries. That has been so well done in the able and illuminating opinion prepared for the court by Mr. Justice Watson in the case of Yeo v. Tweedy, 34 N.M. 611,286 P. 970, 974, that a mere reference to the case will bring the reader in touch with the sound reasoning by means of which the court charted the future course in this state for the administration of subterranean waters subject to appropriation. This thought stands out in the opinion and holding of the court, namely, that legislative enactments classifying such waters as public and subject to appropriation are merely declaratory of the state of the law prior to such legislation and that except for any differences compelled by their subterranean character, such waters are affected with all the incidents of surface waters as to use, appropriation and administration. As we there said:
"* * * the same reasoning which, upon the premise of riparian rights in running streams, leads to correlative rights in artesian waters, will, on the premise of prior appropriation of the waters of running streams, lead to the same basis of right in the waters of artesian basins."
So viewed then, and conceding the plaintiff's competency to invoke the remedy sought, as we have held, whence comes defendant's right to take and use waters previously appropriated, as alleged by plaintiff, to beneficial use by the water users of the plaintiff conservancy district? The mere fact that water might flow by his land in a defined channel near the headwaters of a surface stream, certainly would give him no right as a riparian proprietor, to the use of such waters, if landowners farther downstream previously had appropriated to beneficial use all available unappropriated water of the stream. Does it matter that the water is underground, if the same situation prevails as to its use and prior appropriation by others? We think not.
In effect, the defendant here asserts the right of a surface owner to a priority of use and right in underground waters, a contention ignored and repudiated in Yeo v. Tweedy, supra. Even if defendant's well does not tap waters of the artesian basin underlying the plaintiff district, he was without right to drill it except under a permit from the State Engineer as required either by L. 1931, c. 131, or by L. 1935, c. 43, if it was to tap the waters of some underground stream, channel, artesian basin, reservoir or lake, having reasonably ascertainable boundaries. Admittedly, he had no such permit. *Page 183
It seems obvious that L. 1935, c. 43, was enacted to tighten the control of the State Engineer over artesian waters of the state not already placed under control of some artesian conservancy district organized pursuant to L. 1931, c. 97. Yet even as to them, he shares with such districts concurrent jurisdiction to enforce the regulatory provisions of the 1935 Act and to intervene in any suit by or against the conservancy district where necessary for the proper protection or adjudication of rights to public waters of the State. 1941 Comp. § 77-1202, L. 1935, c. 43, § 2. The fact that the State Engineer has not seen fit to seek intervention in the case at bar suggests a view entertained by him that the State's interest in public waters of the artesian basin will be properly safeguarded through the plaintiff district, the party the more immediately concerned and charged by the Act giving it life with the obligation "to conserve" such waters.
As already indicated, the fifteenth regular session of the Legislature evidently considered that to prevent the unauthorized drilling of wells tapping waters of an artesian basin was one means of conserving the waters thereof for by L. 1941, c. 98, § 3 (1941 Comp. § 77-1324), it expressly enacted:
"That any artesian conservancy district which has heretofore been organized, or may be hereafter organized, as provided by law, shall in addition to the powers granted to such districts have the right, power and authority to protest or object to any application made to the state engineer to appropriate any waters included within the boundaries of such conservancy district which may be subject to appropriation as provided by law, * * * and such district shall have the right to appeal to the district court from the decision of the state engineer within the time and manner provided by law for appeals from such decisions."
If, as required by the statute, the defendant had filed an application to drill a well tapping the waters of the artesian basin and the district had then sought to maintain this action, he might have contended that the procedure mentioned in 1941 Comp. § 77-1324 (L. 1941, c. 98, § 3) is exclusive. But, regardless of whether the plaintiff may have chosen to present in such a proceeding the questions upon which issue is here joined, where defendant has ignored the statute and thus denied the district an opportunity to avail itself of the statutory protest, it does not lie in his mouth to assert, nor can it be successfully maintained, that equity is powerless in the premises. Cf. State ex rel. Stephens v. State Corporation Comm.,25 N.M. 32, 176 P. 866.
As a matter of fact, if defendant's well taps waters of this basin, then the land upon which he drilled it is of a kind expressly ordered by the enabling act to be included within the territorial boundaries of the district. Section 2 (§ 77-1302) provides that any conservancy district organized pursuant to the Act "shall include all lands *Page 184 overlying any such artesian basin and any lands outside the boundaries thereof upon which waters from such basin are being used, either for * * * domestic or irrigation purposes, or otherwise." (Emphasis ours.) Again in Section 13, § 77-1313, quoted supra, specific directions are laid down for the Commissioners to include in the district all property which within four years has received some benefit from artesian waters of the district, or may be benefited in some degree by improvements of the district. Benefit to the land is made the test of inclusion and the section declares that "property benefited" by the artesian waters is to include property upon which water from the basin is, or may be used for irrigation, domestic, public or commercial purposes. In the face of these statutory mandates, can the neglect, oversight or inadvertance of the Commissioners in omitting lands overlying some part of the basin, deny to the district the power, or relieve it of the statutory duty, to restrain acts on such land which are calculated to diminish or deplete the waters of the basin?
The defendant asserts the omission of lands of the kind described has exactly that effect. We think otherwise. Just as the tiniest rivulet far up the mountainside is drawn within the orbit of control and administration of the larger stream system of which it forms a part, so wherever tapped, on lands territorially within or without the outboundaries of the conservancy district organized to conserve the waters of such basin, the waters tapped, if in fact waters of such artesian basin, are subject to conservation by the district and, within statutory limits, to the supervision and control of its governing board.
We conclude that the trial court erred in dismissing the plaintiff's complaint. The judgment will be reversed and the cause remanded with directions to the trial court to set aside such judgment, award a new trial, and for further proceedings consistent with the views herein expressed.
BICKLEY and LUJAN, JJ., concur.