On Motion for Rehearing. The defendant's motion for rehearing has been argued orally and in addition to being supported by his own brief, it has the support of an extensive brief filed with our leave by amicus curiae who also participated in the oral argument in support of the motion. Thus it is that even if the motion shall draw a formal denial, as a matter of fact, it has been considered as if upon a rehearing of the entire case. Such reconsideration leaves us still of the opinion that the result announced is correct, which calls for a denial of the motion, although there are certain matters we desire to clear up in disposing of same.
Amicus curiae correctly reminds us of error in our statement in the opinion on file that the land on which defendant drilled his well was never within the territorial boundaries of the plaintiff district unless the State Engineer's order, made subsequent to such drilling, placed it there. What should have been said was that this land was never within the territorially defined boundaries of the artesian basin unless action by the State Engineer, subsequent to the drilling, placed it there. Somewhat indiscriminate use of the terms "basin" and "district" in the brief of plaintiff-appellant accounts for the misstatement. The unimportance of this inaccuracy is disclosed by the fact that throughout our opinion *Page 187 it was taken as an admitted fact that the site of defendant's well was never within the territorial boundaries of the district. Likewise, its presence outside the defined boundaries of the basin, when drilled, if actually it taps the waters of such basin, where previous applications to beneficial use by water users of the district have exhausted the supply available for appropriation, as we shall show, also lacks decisive importance.
We already have held in the opinion filed that the mere fact defendant's well was drilled outside the territorial boundaries of the district does not deny it the right to enjoin maintenance of same if the well taps waters of the artesian basin underlying the district to the detriment of its water users whose previous applications to beneficial use have combined to exhaust all waters of the basin available for appropriation. True enough, when we so held we were under the impression that at the time defendant drilled his well the same was within defined boundaries of the basin, thus requiring a permit from the State Engineer to render lawful the drilling under the provisions of L. 1935, c. 43, 1941 Comp. § 77-1201 et seq. Furthermore, we employed arguendo in support of our conclusion that preventing an unlawful taking of the fully appropriated waters of an artesian basin was to "conserve" the same within the meaning of that term as employed in the enabling act, as much so as preventing "waste" through leaky wells, the action of a subsequent legislature, L. 1941, c. 98, § 3, 1941 Comp. § 77-1324, in authorizing conservancy districts to protest before the State Engineer applications for drilling new wells to appropriate waters of the district.
It now appearing that defendant's well, when drilled, was not within the defined boundaries of the artesian basin supplying water users of plaintiff district, no permit was necessary to render lawful the drilling and, hence, a protest by plaintiff prior to discovery that the well actually tapped the basin would have been untimely and out of order. The inquiry naturally follows: Does the erroneous assumption in our opinion that defendant's act in drilling without a permit was unlawful dictate a result contrary to that announced by us? This question is to be answered by determining what effect, if any, discovery that defendant violated no law in drilling can have on the plaintiff's competency to sue to enjoin an unlawful depletion of the district's water supply for its users. The answer can only be — no effect whatever. The important fact in connection with any new drilling, particularly as respects an interest on the part of the plaintiff which will give it a right to sue, is always: Will it tap waters of the basin supplying users in the district? Presumptively, it will, if drilled *Page 188 within defined boundaries of the artesian basin underlying the district, whether within or outside territorial boundaries of the district and, hence, a permit must be secured to give legality to the drilling. But, even though drilled outside the defined boundaries of an artesian basin and without a permit, since in such case none is required, once it is established that the well has tapped waters of the basin a conservancy district was created to conserve, the latter's right to sue arises instanter and automatically. It may lose on the facts, as for instance by proof that there are surplus waters subject to appropriation, thus disproving detriment or injury to plaintiff's water users, but defeat cannot be predicated on a lack of competency to sue on plaintiff's part.
These conclusions are as simple as A-B-C unless boundaries originally established for an artesian basin are to be deemed "frozen" for all time by a conclusive presumption that they embrace all lands overlying any part of the basin, a result contemplated by the statute, 1941 Comp. § 77-1302, yet truly seldom, if ever, actually the case. That the latter is true is abundantly demonstrated by the admission of defendant's counsel at oral argument of the motion for rehearing that the State Engineer has been endeavoring to keep up with events by extending defined boundaries of the basin, from time to time, to embrace lands shown by subsequent drillings of third parties to lie over portions of the basin.
Counsel for defendant refer arguendo to 1941 Comp., § 77-1208, L. 1935, c. 43, § 8, which provides for summary abatement as a public nuisance, after notice, of wells wasting water at the surface, and authorizes the State Engineer, artesian well supervisor, or artesian conservancy district, "if the well is situated therein," to fit the well with valves or other devices to stop the waste, constituting the cost thereof a lien on the land where the well is situated and any other land entitled to use water from the well. The quoted language, say counsel, indicates a legislative intent to confine the district within its territorial boundaries in its efforts to conserve waters for its users. But a very good reason, applicable to the conservancy district, but not to the State Engineer and artesian well supervisor, properly limits the district's right thus to abate, summarily, to wells within its territorial boundaries.
It is to be noted that the cost of abating fixes itself as a lien on the land. Now unless the well whose waters are wasting actually taps the basin supplying the district's users, a decisive issue yet to be tried out in the case at bar, the district would be utterly lacking in statutory interest or concern in the matter of such wastage. Accordingly, where the well is outside its territorial boundaries this statute denies it the right to abate wastage in a summary manner. It must, as it has *Page 189 done here, first test its rights in the premises by appeal to the courts. Not so, as to the State Engineer or an artesian well supervisor acting under his direction pursuant to regulations prescribed by him, 1941 Comp. §§ 77-1203 and 77-1204, in territory outside artesian conservancy districts but within an artesian basin. It is the concern of the State Engineer, certainly, to stop wastage whether it affects waters within or without the territorial boundaries of an artesian conservancy district, yet within the boundaries of an artesian basin theretofore defined by him. Hence, the significant use of the language now underscored appearing in such statute, viz., "such officials having jurisdiction may abate such nuisance," etc. (Emphasis ours.)
The exact nature or extent of defendant's claim to underground waters has been somewhat obscure prior to the filing of his brief supporting rehearing, although in our opinion filed we said that, in effect, he here asserts the right of a surface owner to priority of use and right in such waters, a contention repudiated in Yeo v. Tweedy, 34 N.M. 611, 286 P. 970, as we pointed out. That we were substantially correct in our appraisal of his claim is demonstrated by the proposition now boldly urged in brief supporting his motion that waters discovered outside boundaries of underground streams, channels, artesian basins, reservoirs or lakes, theretofore defined by the State Engineer, are subject to "unregulated appropriation" and are "without his (the State Engineer's) jurisdiction." It may be granted, as already conceded, that no permit is necessary for drilling in such territory. But it does not follow that, where such well taps waters of an artesian basin or other underground stream whose available supply of waters already has been exhausted by prior appropriations, the well owner acquires a valid right to the use of such waters as against the body of prior appropriators. Unless we blind ourselves to the migratory character of waters, whether surface or underground, one often will be able to tap same outside the defined — and where they do not exactly coincide, outside the natural — boundaries of underground streams, artesian basins or lakes, making their way into them. Waters within such boundaries would have to be inexhaustible to prevent a taking by anyone from a source supplying the underground basin or stream from diminishing the supply available to those having prior rights to waters within the same.
Certainly, unless we desire to invite chaos in the administration of underground waters, somebody has authority to enjoin a trespass of the kind just mentioned. But, say counsel for defendant, the conservancy district concerned may not (1) because without right to sue at all in such behalf and (2) because the well *Page 190 is beyond its surface boundaries. The State Engineer may not, they say, because of defendant's right to "unregulated appropriation," putting the matter "without his jurisdiction," the well having been drilled beyond his previously defined boundaries of any underground stream, artesian basin or lake. And, by the same token, a water user who is a prior appropriator may not enjoin, because of defendant's right to "unregulated appropriation," even though it be conceded the questioned well taps the artesian basin or lake supplying him, all of whose waters already have been applied to beneficial use by prior appropriations. We are unable to sustain a claim so astounding!
It is also complained in the defendant's brief supporting motion for rehearing that our opinion goes far beyond the sole question tried below, viz., the plaintiff's competency to sue "and has inferentially determined at least, other issues which were raised by the pleadings, but never heard and determined by the trial court, and in support of which no evidence or proof was offered." We pointed out in our opinion how difficult it was to determine exactly what the trial court did decide. Its sole finding of fact was that the Peters well was outside the territorial boundaries of the district. It then concluded the conservancy district was not a proper party plaintiff and dismissed its suit. But the presence of the well outside the boundaries of the district is not a matter going to the competency of the plaintiff to maintain the suit unless the court's ruling rested on the view that this was not a method of conserving waters of the basin committed unto the plaintiff district. If that were true, the same defect in plaintiff's right to maintain the suit would exist, even though the well were located within territorial boundaries of the district. Thus mention of its location outside such boundaries would lose significance.
In this state of confusion as to just what the trial court did decide we imputed to it a holding that the plaintiff was not a proper party plaintiff because seeking to "conserve" waters of the basin in a manner not authorized by the act, as argued by the defendant. In other words, and viewed in this aspect, in effect, we put to ourselves the question: "Is a governmental agency,created for the declared purpose of conserving the waters of anartesian basin and given power to sue, to be denied the exerciseof that power in relation to the primary function it wasestablished to perform?" We supplied a negative answer to that inquiry. We might have stopped right there. But the trial court had seemingly attached significance on the plaintiff's right to sue to presence of the well outside the district's boundaries — something, as already noted, going to the merits of the case rather than competency of plaintiff to sue. Since we were *Page 191 having to send the case back for a trial of decisive but undetermined issues, it was deemed appropriate to pass upon this question as well and we did.
There is no language in our opinion to inspire or support the suggested apprehension that under it the conservancy district may be involved in controversies between water users of the district as to existence or priority of their water rights. We tried to make it plain in what was said, and we now reaffirm, that it is only where the water users of the district have a common or general interest in the subject matter of the suit that the district may sue or defend for them in a representative capacity. It is not authorized to adjudicate water rights as between the water users of the district or to take up the fight of one as against the other. We sought to make this clear before and we reemphasize it now.
Exception is taken in the minority opinion on motion for rehearing to language in the majority opinion heretofore filed contrasting loss of water to users of the district through leakage with that to be suffered from an unauthorized well tapping the artesian basin wherein we commented on the definition of the word "conserve" urged upon us by defendant's counsel in this language, to-wit: "* * * in other words, (defining it) 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." The majority are virtually charged with gross ignorance of the true situation in assuming "at least that the waste, including casing leaks, were (was) infinitesimal if compared with the alleged 2000 gallons per minute pumped from the Peters well."
The misapprehension disclosed by the minority opinion in this connection reveals itself in interpreting what we said as comprehending the aggregate loss from leakage over the entire district as "infinitesimal" in comparison with the loss to the district's water users of the entire output of the Peters well. The thought we endeavored to convey (and we think the language does not reasonably bear any other construction) was the incongruity of a legislative intent which would authorize the district to "stop a leak" in a well, the loss from which necessarily is less than the total production from such well, and yet deny it the power to enjoin maintenance of that same well, if unlawfully maintained, the entire production of which was thereby lost to the water users of the district. The criticized language was simply a statement by us of the old equation: It requires the sum of all the parts to equal the whole. Hence, a single part necessarily is less than the whole. Certainly, water lost through a leak in a given well would rarely, if ever, equal its total production. The majority have never for a moment doubted that the aggregate loss to the water users from leaks in all *Page 192 wells throughout the district is very large. But we still affirm the thought intended and actually conveyed, as we think, by the language employed that the leak in a given well is less than its entire output.
The position of the defense throughout has been that, if loss is occurring through a leak, the district can prevent it but if the entire output of a given well is lost to the district's water users, as one maintained without authority, the district is helpless in the premises — that although enjoined by statute to conserve waters of the basin for the benefit of the water users in the district, to enjoin a taking by trespassers is a method of conservation not contemplated by the legislature when it ordered the district to "conserve" the waters of an artesian basin supplying it. In what has been said, both in our original opinion and in this one on motion for rehearing, we think we have adequately shown that this position is not to be successfully maintained. That it is not to be is further demonstrated by the amendment heretofore adverted to in our former and this opinion, found in L. 1941, c. 98, § 3, 1941 Comp., § 77-1324, giving the word "conserve" the broader meaning we impute to it in the matter of appearing as a protestant before the State Engineer against applications to appropriate artesian waters supplying the district and of prosecuting appeals from his decision to the district court.
The motion for rehearing is not well taken and should be denied.
It is so ordered.
BICKLEY and LUJAN, JJ., concur.
HUDSPETH, J., did not participate in this decision.