The act under which appellant was incorporated does not authorize the institution of this action. The power given to conserve the water of the artesian basins was not intended by the legislature as authority to prosecute suits, the effect of which is to try title to valuable property rights, none of which appellant owns or has authority to own. The character of conservation is indicated by the following excerpt from Sec. 18 of the Act (Ch. 97 N.M.L. 1931):
"* * * 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 wasting the 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 *Page 185 wells found to be wasting the waters of 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. The Directors may proceed to carry out the improvements so outlined in such manner as shall be deemed to be for the best interest of all concerned, but shall cause all artesian wells found to be wasting said waters, and which have not been beneficially used for more than four years, to be first plugged."
There is nothing in the act to indicate that the district's authority extended further than protection against waste. The fact that it could sue and be sued did not give it the general power to sue in behalf of property owners, any one of whom may institute actions in his own behalf, and in behalf of all others similarly situated. The majority cite no authority that supports their opinion. The case of Coachella Valley County Water Dist. v. Stevens, 206 Cal. 400, 274 P. 538 (the only similar case), is not in point because the California district was given specific authority to bring such actions; assuming such authority could be given consistently with constitutional inhibitions. The authority given such districts by the California act, St. 1923, p. 312, is as follows:
"To store water for the benefit of the district; to conserve water for future use; to appropriate, acquire and conserve water and water rights for any useful purpose; to commence, maintain, intervene in and compromise, in the name of the district, and to assume the costs of any action or proceeding involving or affecting the ownership or use of waters or water rights within the district used or useful for any purpose of the district or a benefit to any land situated therein; to commence, maintain, intervene in, defend and compromise actions and proceedings to prevent interference with or diminution of the natural flow of any stream or natural subterranean supply of waters used or useful for any purpose of the district or a common benefit to the lands within the district or its inhabitants; and to commence, maintain and defend actions and proceedings to prevent any such interference with the aforesaid waters as may endanger the inhabitants or lands of the district."
It is interesting to note that Justice Curtis dissented, expressing the view that the opinion of the District Court of Appeals (266 P. 341) which held that as the district had no interest in the use of the water underlying the district and owned no land with water rights therein, that it was not authorized to bring the action, notwithstanding the statute. If it can be said that the California district had authority to prosecute such action because specifically given it by the legislature of that state, I answer that no such authority was given to the appellant here, nor did the legislature have in mind the granting of such broad powers. *Page 186
Carlsbad Irrigation Dist. v. Ford; Salt River Valley Water Users' Ass'n v. Norviel; Oregon Const. Co. v. Allen Ditch Co.; Caviness v. La Grande Irrigation Co., and United States v. Tilley, all cited in the majority opinion, are cases in which irrigation districts, having the authority and duty to impound and distribute water to its water users, necessarily were held to have authority by legal proceedings to protect such rights against trespassers, though the effect was to protect the rights of their water users. The appellant has not the remotest interest in the artesian water involved. The appellee is not wasting water, but is applying it to a beneficial use. It is a matter of general public knowledge that the purpose of the act was to prevent waste by plugging or repairing leaky wells; and not to determine the right to the use of water.
Let us assume that upon remand and trial the district court will find that appellant has not established by substantial evidence that the water flowing from appellee's well comes from either of the artesian basins underlying the territory covered by appellant district. If so, will the interested landowners be bound by such decree? According to the majority opinion they will be so bound, although not parties to the suit. The legislature never intended to give to the district any such authority, if indeed it could. The judgment of the district court is correct and should be affirmed.
MABRY, C.J., concurs.