According to plaintiff's complaint and the defensive pleadings, this law suit started out seeking a declaratory judgment "to have the various contracts herein involved construed in order to prevent any possible violation of any of the provisions of such instruments."
Briefly, the effect of such instruments and the circumstances surrounding their execution, delivery and acceptance, as drawn from the court's findings of fact, was that the plaintiff and its predecessors in interest acquired the right to construct a Reservoir and the fee simple title to 640 acres of land on the banks of the Reservoir, and in the same conveyance "the right to use for fishing, boating, bathing and any other recreational purposes, the water area of the Conchas Reservoir within the exterior boundaries of the Pablo Montoya Grant, except that portion thereof lying in the valley of the south Canadian River north of a line" described in said conveyance.
This conveyance of January 25, 1940 was expressly made subject to the reservations and conditions attached to the grant of flowage easement contained in other deeds and was on the express condition that the area would be adequately patrolled so as to insure protection to private property.
The findings of the court relative to these contracts and conveyances and the circumstances of their execution are thus correctly summarized in appellee's brief as follows:
"At the time of the execution of the deed of January 25th, 1940, it was understood that certain recreational facilities would be erected by the Civilian Conservation Corps of the United States on the area conveyed to the United States in fee simple by Appellee, and that this area, together with the *Page 230 water area conveyed by said deed of January 25th, 1940, would be turned over to the State of New Mexico for its operation (Tr. 78).
"At the various conferences leading up to the execution by Appellee of the deed dated January 25th, 1940, it was pointed out that Defendant was engaged in the breeding and raising of cattle on its lands adjoining the Conchas Reservoir on both sides; that this Reservoir extended for many miles on lands of Appellee, and that if the entire area of the Conchas Reservoir was opened to the public, Appellee would be under heavy expense in protecting its lands against trespass and fire; and as a part of the consideration of the conveyance of January 25th, 1940, it was agreed that no part of the Conchas Reservoir lying in the valley of the South Canadian River, north of the line described in Appellee's deed of January 25th, 1940, would be open to the public. Representatives of the State of New Mexico participated in these conferences and were fully aware of all the foregoing matters. (Tr. 78). (Emphasis supplied.)
"Shortly after the execution of the deed of January 25th, 1940 the War Department constructed a boom across the Conchas Reservoir on the line described in Appellee's deed of January 25th, 1940, for the purpose of preventing the public from going above said line, and thereafter, said boom was reconstructed, and has since been maintained by said Game Commission, all of which has been done for the purpose of carrying out the understanding in connection with said deed of January 25th, 1940, (Tr. 78, 79).
"Subsequent to Appellee's deed of January 25th, 1940, and on May 1st, 1940, Congress enacted Public Law No. 504, 76th Congress, authorizing the Secretary of War to grant to the State of New Mexico for public recreational purposes, an easement for the use and occupation of such lands and water areas owned or controlled by the United States in connection with the Conchas Dam and Reservoir, as the Secretary of War might deem advisable, and under such terms and conditions as he deemed advisable.
"Apparently pursuant to said Act of Congress, there has been prepared an easement deed, authorizing the State of New Mexico to use for recreational purposes the area conveyed by Appellee to the United States in fee simple by the deed dated January 25th, 1940, and also the water area covered by said deed. This so-called easement deed, without its exhibits, is set out in Appellant's More Definite Statement, beginning at Page 36 of the transcript, and appears in full, including its exhibits, as Appellee's Exhibit 3, beginning at page 208 of the transcript.
"This so-called easement deed has never been executed by the Secretary of War (Tr. 80), but Appellant claims that it has entered into possession of the areas described in said deed under a verbal understanding with some subordinate official of the War Department, and that there is incorporated *Page 231 in such verbal understanding all the provisions set out in said easement deed (Tr. 80).
"Said easement deed is expressly made subject to the reservations and conditions contained in Appellee's deed to Chavez and others, as Trustees, dated May 8th, 1936, and in the conveyance of Chavez and others, as Trustees, to the United States, dated May 13th, 1936, and to the provisions, reservations, and conditions contained in Appellee's deed of January 25th, 1940, to the United States, and by its terms, limits any right of the State to the areas of land and water described in Appellee's deed of January 25th, 1940, and excludes the area involved in this appeal, that is, the area between the Lines A and B on Exhibit A-4 of Plaintiff's complaint."
Among the conclusions of law of the district court are the following:
"That the State, by holding possession subject to the so-called Easement Deed, and to the provisions and conditions contained in the deeds referred to in said Easement Deed, is estopped from claiming any right in that part of the Conchas Reservoir lying north of Line A as shown on Exhibit A-4 to the Complaint.
"That the State is further estopped from claiming any rights in that part of the Conchas Reservoir lying north of Line A on Exhibit A-4 to the Complaint by its participation in the negotiations leading up to the execution of defendant's deed of January 25, 1940, (Exhibit A-3 to the Complaint) and by the knowledge that a part of the consideration for such deed was that the area north of said Line A would not be opened to the public."
The plaintiff, thus confronted with the court's construction of "the various contracts and conveyances" of the parties to this law suit seems to have been obliged to claim something not set forth in the complaint.
The public authorities having assumed to represent the public for the purpose of making the contracts, and the plaintiff having become the successor in interest under said contracts and conveyances and having assumed to represent the public for the purpose of securing a declaratory judgment as to the meaning of such contracts and conveyances, the plaintiff when it had lost the decision, requested the trial court to conclude as a matter of law as follows:
"No statute or law of the State of New Mexico authorizes any public official or group of public officials to enter into a contract, whether oral or written, whereby the recreational rights of the people of the State of New Mexico in the public waters of the State of New Mexico and/or the rights of the State of New Mexico in its public waters may be conveyed, or the State, or the people of the State of New Mexico prevented from claiming the right to use the public waters for recreational purposes. Therefore, any oral or written contract entered into by and between The Red River Valley Company, or the United States of America, or any other person or party, and any public official or officials of *Page 232 the State of New Mexico, whether such official or officials purported to act for the State of New Mexico, or in any official capacity, which would purport to convey recreational rights, * * * or purport to estop the State of New Mexico and/or the people of the State of New Mexico from claiming recreational rights on the public waters of the State of New Mexico, is null and void, and no such contract can or did take away any of the rights of the state and/or the people of the state in and to any recreational rights or uses they may otherwise have in the Conchas Reservoir and/or Lake.
"No statute or law of the State of New Mexico authorizes any public official or group of public officials to enter into a contract, whether oral or written, whereby the recreational rights of the people of the State of New Mexico in the public waters of the State of New Mexico and/or the rights of the State of New Mexico in its public waters may be conveyed, or the State, or the people of the State of New Mexico prevented from claiming the right to use the public waters for recreational purposes.
"No state official or officials can convey, release, relinquish, or enter into a contract, or perform any acts which can estop the state from claiming any interest or right of the State of New Mexico and/or the people of the State of New Mexico, except pursuant to authority contained in some specific statute or constitutional provision."
I have deemed it worthwhile to indulge the foregoing quotations because it seems essential to me to inform the reader of the scope of the decision in the foregoing opinion and to show how far afield the argument of the prevailing opinion has gone from the "actual controversy" as it was first submitted.
Since the prevailing opinion does not discuss the matter of estoppel of the public authorities, and touches but lightly, if at all, on the question of construction of the "various contracts and conveyances," I take it that the majority feel that it is appropriate to declare that each individual member of the public has an inherent and uncontrollable right to fish in the "unappropriated waters from `every natural stream * * * within the state of New Mexico'" without the consent of the owners of the lands through which such streams flow and of the banks and beds of such streams because they say that the fact that such waters "belong to the public" is sufficient answer to the protests of such property owners.
This is the question which the majority have made and answered incorrectly, as I believe.
The importance of this decision to the thousands of owners of lands along the natural streams within the state justifies a full statement of the reasons for an opposing view to the end that property owners, members of the bar, and the legislature may be stimulated to corrective measures *Page 233 if not satisfied that the majority have correctly declared what the state's policy is.
Since the proposed opinion does not assert that the streams were originally navigable, and navigability of the waters impounded is not relied upon for the decision, navigability is out of the case.
It is a well settled rule that the right to fish in certain waters depends upon the ownership of the soil beneath such waters. So far as nonnavigable streams are concerned, the rule is without exception that the landowner owning both banks of the streams owns the bed and has the exclusive right to fish therein.
The following are a few of the statements made by the law writers:
"The right to fish in, or to hunt on certain waters, in the absence of grants or prescription, is in harmony with the ownership of the soil under those waters; if the title to the soil is in the State, the right to fish or hunt is in the public; but, upon the other hand, if the title to the soil is in the riparian owner, he has this right. Kinney on Irrigation and Water Rights (2d Ed.) vol. 1, p. 605."
In 36 C.J.S., Fish, § 4, p. 833, the rule is stated:
"As a general rule the right of fishing in waters on land owned by a private individual is exclusively in such owner, and, where such ownership is established, the right may attach to an arm of the sea, where the tide ebbs and flows. In accordance with this rule, the owners of land on the banks of a nonnavigable stream ordinarily have the exclusive right of fishing opposite their respective lands to the middle of the stream, and, if the lands on both sides of the stream belong to the same person, he has the same exclusive right of fishing in the whole stream, as far as his lands extend along it."
In 22 Am.Jur., page 682, the following appears:
"Each riparian owner along a non-navigable stream, whose title carries to the center of the stream, has the right to an exclusive fishery on his own side, extending to the center of the stream; and so far as he owns the land on both sides of the stream, he has the sole privilege of fishing in that portion of the stream within his lands. A stranger becomes a trespasser in wading along the bed of such stream for the purpose of taking fish; and the fact that he gains entrance to it from a navigable one is immaterial. The fact that a private stream has been stocked by the state has been held to give no one other than riparian proprietors any right to take fish from the water."
Cooley on Torts, 3rd Ed., 673, states:
"The right to take fish in the fresh water streams of the country belongs to the owners of the soil under them, to the exclusion of the public."
Angell on Water Courses, 7th Ed., Sec. 61, states:
"Concommitant with this interest in the soil of the beds of water courses, is an *Page 234 exclusive right of fishery; so that the riparian proprietor, and he alone, is authorized to take fish from any part of the stream included within his territorial limits."
Tiffany on Real Property, 2d Ed., p. 1544, states:
"While the individual members of the public have rights of fishing in waters, the soil below which is the property of the State, except in those cases in which an exclusive right to fish there has been granted by the State legislature or other sovereign authority, they have, as a general rule, no such right in water which covers land belonging to a private individual."
In Holyoke Co. v. Lyman, 15 Wall. 500, 82 U.S. 500, 512,21 L. Ed. 133, the Supreme Court of the United States said:
"Ownership of the banks and bed of the stream, as before remarked, gives to the proprietor the exclusive right of fishery, opposite his land. * * *
"Undoubtedly each proprietor of the land adjoining such a river or stream has in that State (Massachusetts) a several or exclusive right of fishery in the river immediately before his land, to the middle of the river, and may prevent all others from participating in it, and will have a right of action against any who shall usurp the exercise of it without his consent."
It is not asserted in the prevailing opinion that the bed of the stream does not belong to the defendant. And in fact it is so reluctantly conceded "for the purpose of this case only" as to give promise of a contrary assertion. I think it proper to quote from the opinion given by Mr. A.M. Fernandez, Assistant Attorney General, rendered May 27, 1939 because of the cogency of the argument and the value of the supporting authorities cited, and other values. The question propounded to Mr. Fernandez was as to whether lands within the beds of nonnavigable streams in New Mexico belong to the riparian owners or to the State of New Mexico. The answer, in part, was as follows:
"In Hanlon v. Hobson, 24 Colo. 284, 51 P. 433, 42 L.R.A. 502, a contention that `by analogy to the doctrine prevailing in Colorado respecting the right of the people to the waters of public streams, and to divert the same, which is contrary to the common law doctrine of riparian ownership, the rule should be that the beds of the streams, as well as the waters, belong to the public,' was rejected.
"And in Johnson v. Johnson, 14 Idaho 561, 95 P. 499, 24 L.R.A., N.S., 1240, ownership of the bed of nonnavigable as well as navigable streams was recognized, notwithstanding the fact that navigable rivers are reserved as public highways.
"California, like New Mexico, acquired its territory from Mexico together with the law then existing under the republic with respect to ownership of the bed of all streams, and prior appropriation of water. By the adoption of the common law as the rule of practice and decision, however, it was decided in Lux v. Haggin, 10 P. 674, *Page 235 that the Mexican rule had been abandoned, and the Supreme Court of the United States held that the Federal Government as a riparian owner had title to the river bed in a nonnavigable stream in California on the authority of Lux v. Haggin, saying this case held that the adoption of the common law as the rule of decision in the state operated, at least from the admission of the state to the union, as a transfer to all riparian proprietors of the property of the state, if any she had, in the nonnavigable streams and the soil beneath them. Donnelly v. United States, 228 U.S. 243, 33 S. Ct. 449,57 L. Ed. 820 at page 829, Ann. Cas. 1913E, 710.
"Of course, California recognizes riparian rights to water and we do not. We say that all unappropriated waters, whether perennial or torrential, are public and subject to appropriation. Article XVI, Section 2, of the Constitution; Section 151-101, 1929 Compilation. But the right to the flow of water is quite distinct from the ownership of the bed of the stream, and there is no reason why the rule as to either could not be displaced without affecting the other. State of Oklahoma v. State of Texas,258 U.S. 574, 42 S. Ct. 406, 66 L. Ed. 771, at page 780. See also Kinney on Irrigation, Vol. 1, Sec. 334. And it is significant that neither in the constitution nor in the statute is anything said about the soil under the water.
"Beals v. Ares, 25 N.M. 459, 185 P. 780, states that `the effect of the act of adoption of the common law (in New Mexico) may well be described by the application of the language of Lux v. Haggin,' 25 N.M. at page 485, 185 P. at page 787. It then proceeds at page 486 of 25 N.M., at page 788 of 185 P., to state that where there is a statute copied after the civil law, the common law occupied all the field of jurisprudence outside such statute.
"It is my opinion that the doctrine of Lux v. Haggin, as interpreted in State v. Donnelly, supra, is applicable to the question of ownership in the soil of nonnavigable streams, and since the Constitutional provision and statute above cited are limited to the waters only, and that the state does not own the bed of any of our streams, except as riparian owner. I find no authority to the contrary, other than the above statements in Kinney on Irrigation.
"Texas also adopted the common law, but it had a statute placing the ownership of all streams more than thirty feet wide in the state. State v. Grubstake Inv. Ass'n, supra; Manry v. Robison, 56 S.W.2d 438."
The foregoing principles which the majority do not refute are controlling and call for an answer to the question the majority have made contrary to the one they have given. But I think there is so much fallacious reasoning in their opinion that it would be unfortunate if it went unchallenged.
They say that since Sec. 2 of Art. 16 of the constitution declares unappropriated waters of every natural stream within this state to "belong to the public" that means *Page 236 that each individual member of the public has an uncontrollable right to go upon such waters and fish therein without the consent of the owner of the land through which the stream flows. The error in that assertion is, I think, readily demonstrated.
Sec. 2 of Art. 16 of the constitution says: "The unappropriated water of every natural stream, perennial or torrential, within the state of New Mexico, is hereby declared to belong to the public and to be subject to appropriation for beneficial use, in accordance with the laws of the State."
Our first concern should be as to the meaning of the words and phrases employed in this Section.
Undoubtedly "belong" may be employed and understood as an expression of ownership.
Also, the word "belongs" is used in the sense that the thing is to be in the power of or at the disposal of the public. See In re Hitchens Estate, 43 Misc. 485, 89 N.Y.S. 472, 476.
We now come to the word "public." Definitions taken from Words and Phrases indicate that there are a variety of meanings to be given to the word "public." Therefore it is important to consider the context and to ascertain the intent of the framers of the Constitution. In Bennetts, Inc., v. Carpenter, 111 Colo. 63,137 P.2d 780, 781, it was decided: "The word `public' does not mean everybody all the time but the word must be interpreted in each case according to use and intent."
Also, it is important to keep in mind the subject matter of what is declared to "belong to the public." Unquestionably if the law makers were speaking of highways as public highways, the inference would follow that such public highways are open to common use of all the individuals who may be said in a sense to constitute the public.
In City of Clayton v. Nemours, 237 Mo. App. 167,164 S.W.2d 935, 936, 940, it was decided: "`Public' has a dual meaning in that it may be employed to describe the character in which a thing is held, or to denote the use to which the thing is put."
The word "public" is frequently used as synonymous with a state or government. In People v. Powell, 280 Mich. 699, 274 N.W. 372,373, 111 A.L.R. 721, the word is defined as follows:
"`Public' [means] of or pertaining to the people; relating to * * * or affecting, a nation, state, or community at large."
Again, in Ex parte Horn, D.C. Wash., 292 F. 455, 457, is the following definition:
"`Public'" is "`the whole body politic, or all the citizens of the state'", and the "public" referred to in Immigration Act, 1917, Sec. 3, 8 U.S.C.A. Sec. 136, excluding aliens likely to become a public charge, means the people, the government of the United States.
In Areal v. Home Owners Loan Corporation, 43 N.Y.S.2d 538, 540, it was said *Page 237 in effect: "Public" referred to community generally, not to different individual members thereof.
In State ex rel. Louisiana Imp. Co. v. Board of Assessors,111 La. 982, 36 So. 91, 97, it was decided: "Public property is what belongs to the government — federal, state, or municipal."
In Hartman v. Tresise, 36 Colo. 146, 84 P. 685, 690, 4 L.R.A., N.S., 872, it was decided: "`Public property' may be defined as that which is dedicated to the public use and over which the state exercises control and dominion."
From a study of this Sec., particularly in view of what was held in Hartman v. Tresise, 84 P. 685, etc., and more especially in view of the holding of the court that the words in the constitution of Colorado providing that, "The water of every natural stream, not heretofore appropriated, within the state of Colorado, is hereby declared to be the property of the public, and the same is dedicated to the use of the people of the state, subject to appropriation as hereinafter provided," did not mean that each individual member of the public had a right to fish in such natural streams, my conclusion is that the language of our constitution which is very similar to that of Colorado, that "belong[s] to the public" means that it belongs to the state and is subject to state control, and is meant to be reserved in trust, for those who shall desire and who may be able to appropriate such water for beneficial use in accordance with the laws of the state.
I turn now to another glance at this Sec. 2 of Art. 16. The section says: "The unappropriated water of every natural stream * * * is hereby declared to belong to the public and to be subject to appropriation for beneficial use." (Emphasis supplied.) It does not say that the streams as such are public or belong to the public. This distinction is a substantial one.
In Ballentine's Law Dictionary, what is a private stream and a public stream is sharply defined and contra-distinguished in the following which was taken from Webb v. Board of Commissioners of Neosho County, 124 Kan. 38, 250 P. 966. Ballentine says:
"Private stream — A stream to the bed of which a riparian owner can show title deraigned from the United States or from the state. If he cannot show that the federal or state government has parted with title to the bed, the stream is a public stream and the bed of the stream is public property."
I think that since in New Mexico it is conceded that the beds of nonnavigable, fresh water natural streams contiguous to lands in private ownership belong to the owner of the contiguous lands, the streams which wash such lands as streams are private streams even though the waters thereof are public in the sense that they are impressed with a trust in favor of the public awaiting such time as one entitled to do so in accordance with the laws of the state has effectuated an appropriation of the waters of such streams. *Page 238
The particles of waters in a natural stream, since they are migratory are not the subject of private ownership until they are captured and diverted from the stream and applied to a beneficial use and thus reduced to the exclusive private control of the appropriator. Even then it is "right to use" and not ownership.
That "the unappropriated water of every natural stream" is declared to belong to the public does not mean that the stream itself is public.
Until waters of natural streams are appropriated "in accordance with the laws of this state" some one must have the control, custody and possession of such water even though the custody and possession may be for a very short space of time because the water is running down the stream. We know that the public officials charged with the duty of administering the waters of the state cannot have the unappropriated waters of the natural streams in their official custody — at least not in their actual custody. The only custody which the public officials will have of these unappropriated waters is constructive. The actual possession and custody must necessarily be in the various owners of the bed and banks of the stream. The stream of water is joined to the bed of the stream and rests upon it, and so the water of the stream is in the custody of the collective number of the owners of various portions of the bed of the stream up and down its length. This custody is not ownership. The situation is thus stated by Mr. Pomeroy in his book on Riparian Rights at Sec. 9:
"Although, as above stated, the riparian owner has no property in the water itself, but only a usufructory enjoyment of it as it passes through or along his lands, yet it is not to be inferred that his right to have the stream flow in its natural channel, without diminution or alteration, is merely appurtenant to the estate, or conditioned upon his actual application of it to some beneficial use. `By the common law', say the court in California, `the right of the riparian proprietor to the flow of the stream is inseparably annexed to the soil, and passes with it, not as an easement or appurtenance, but as part and parcel of it. Use does create the right, and disuse cannot destroy or suspend it.'"
I shall show later on, and to what extent, the doctrine of appropriation has modified that rule.
Support to this view, announced by Mr. Pomeroy, if any is needed, is found in the recent case of Akron Canal Hydraulic Co. v. Fontaine, 72 Ohio App. 93, 50 N.E.2d 897, 901, decided May 11, 1943. The court said:
"It is ancient learning that the right to flowing water is incident to the title to land, and that there is no right of property in such water in the sense that it is the subject of exclusive appropriation and dominion. The property interest is usufructuary. And each riparian owner has the right to have the natural flow of the stream *Page 239 come to his land and to make a reasonable use thereof, subject, however, to a like right of each upper proprietor, and further to an obligation to lower proprietors to permit the water to pass on from his estate unaffected except by such consequences as follow from a reasonable and just use of the water.
* * * * * * "The impounding of water by means of a dam on a stream is not a reducing of the water to possession in such a sense as to change its legal character and make it property. The principles have been so well established that it requires no borrowed light to determine that water in a nonnavigable stream, or water from such a stream impounded in a lake by a dam, or water impounded from springs or surface drainage, is an incident to the land which gives to such owners of the land certain rights and privilegesin the use of the water. If it flows over one's own land it is identified with the realty in such a way as to be a corporeal hereditament, and if the right is to use it as it flows over the land of another it is an incorporeal hereditament. Under either circumstance the right of property is usufructuary only. It isnot an ownership in the water but a right to its flow for the various lawful uses to which it may be subjected. This hereditament is incident to the land and therefore passes with it by conveyance, and, for the same reason, it is not severable from the land, although the rights to the use of such water may be conveyed by a proper instrument. (Emphasis supplied.)
"It follows, therefore, that a grant of the right to impound water is a grant of but one of the several usufructuary rights that the owners of the underlying lands possess; and under no circumstances can it be a grant of property in the corpus of the water as a chattel."
The foregoing demonstrates that since there never was any ownership by the owner of the soil of the corpus of the water as property, but merely the right of the owner of the bed of the stream to its flow for the various lawful uses to which it may be subjected, (including fishing), all the Constitution, Art. 16, Sec. 2, did was to serve notice that these various lawful uses known to the common law could lawfully be interrupted by another who should "in accordance with the laws of the state" appropriate the water so lawfully used (up to the time of the appropriation) to some beneficial use inconsistent with its former use.
In Millheiser v. Long, 10 N.M. 99, 61 P. 111, 113, is quoted a territorial enactment of 1876 as follows:
"All currents and sources of water, such as springs, rivers, ditches and currents of water flowing from natural sources in the territory of New Mexico, shall be and they are by this act declared free." Comp. Laws 1897, § 52.
This was followed the next year (1877) by an act passed by Congress, 19 Stat. 377, for the sale of desert lands which contains in its first section this proviso: *Page 240
"Provided, however, that the right to the use of water by the persons so conducting the same on or to any tract of desert land of 640 acres shall depend upon bona fide prior appropriation; and such right shall not exceed the amount of water actually appropriated and necessarily used for the purpose of irrigation and reclamation; and all surplus water over and above such actual appropriation and use, together with the water of all lakes, rivers and other sources of water supply upon the public lands and not navigable, shall remain and be held free for theappropriation and use of the public for irrigation, mining andmanufacturing purposes subject to existing rights." (Emphasis supplied.) See Millheiser v. Long, supra.
This discriminating use of language by the Congress: "free for the appropriation and use of the public for irrigation, mining and manufacturing purposes subject to existing rights," following so soon after the territorial legislation which was subject to the approval of Congress, I think shows exactly what was meant by the use of the word "free." It did not mean that natural streams as such, or the waters thereof, could be freely used by each individual member of the public in common for any purposes whatever, but meant as the Congress phrased it, "free for the appropriation and use of the public for irrigation," etc. Thus understood, the legislation was one of the stones in the foundation for the law of appropriation as contrasted with the law of riparian rights and did not go further.
Likewise, the language in Sec. 2 of Art. 16 of the constitution that the unappropriated water of every natural stream is declared to belong to the public and to be subject to appropriation for beneficial use in accordance with the laws of this state, means that such waters belong to the public for appropriation for beneficial use in accordance with the laws of the state and nothing more.
The prevailing opinion says:
"So far as non-navigable streams are concerned, the common law rule, seemingly without exception, is that the one owning both banks of a stream likewise owns the entire bed thereof, the waters are private waters, and the owner has exclusive right to fish therein."
That is a correct statement unless the majority mean by "private waters" that the waters belong to the owner of the land. That would be incorrect. Neither Mr. Justice Sadler, in whose dissenting opinion I heartily concur, nor I contend that waters flowing in natural streams at some time or other prior to the adoption of Art. 16, Sec. 2 of the constitution were in private ownership, then their assumption that the constitutional declaration that such waters were public waters loses the force of contrast and reversal of concept sought to be applied.
I will have more to say about the interest which the adjacent land owner has in the use of water in natural streams flowing through his land later on. *Page 241
The majority having repudiated the common law seek to justify their concession by a reliance upon Spanish and Mexican law. They base their decision upon their conception "of the true nature of public waters as inherited by us from the early, and continued, Spanish and Mexican law and custom," and repudiate the common law of waters in toto. This would seem to be the point at which a parting of the ways began, although I do not concede all that the majority claim for the effect of the Spanish and Mexican law. My reading causes me to conclude that the law under Mexican regime was not essentially different from the common law doctrine of riparian rights as modified by the rival doctrine of appropriation. The Texas Supreme Court has held that the riparian doctrine was in force in that jurisdiction even under the Mexican and independent regimes prior to American statehood. Motl v. Boyd, 1926, 116 Tex. 82, 286 S.W. 458, 465. The court quoted in support of its conclusion, Hall's Mexican Law as follows:
"`Waters which are not nor cannot be private property belong to the public. Such were the waters of the rivers which by themselves or by accession with others follow their course to the sea. These may be navigable or not navigable. If they are navigable, nobody can avail himself of them so as to hinder or embarrass navigation; but if they are not, the owners of the land through which they pass may use the waters thereof for the utility of their farms or their industry,' etc.
"In article 1301 the writer says:
"`If running water passes between estates of different owners, each one of these can use it for the irrigation of his estate or for any other object, but not the whole of it, but only the part which corresponds to him, because both have equal rights, and the one can consequently oppose the use of it all by the other, or even a part considerably more than his own.'"
Pomeroy on Riparian Rights, says at Sec. 114:
"But, on the contrary, the Mexican law, as it existed at the time of the cession of California, did not confer nor recognize any inherent vested right, enforceable in the courts, in othersthan riparian proprietors, to the use of any portion of the waters of a stream, nor any right, except as to those who actually appropriated waters in the manner and on the conditions prescribed by the laws." (Emphasis supplied.)
Therefore, I shall attempt to persuade the reader that the common law which was specifically adopted here in 1876, and which is not in conflict with the Constitution of the United States nor of this territory or state, nor inapplicable to our conditions and circumstances is the controlling law in the case at bar.
The right of fishery in fresh water streams sometimes turns upon the question as to whether the stream is navigable or not, it sometimes being asserted that since no one has the right to fish except in a *Page 242 place where he has a right to be, it follows in reverse that since navigable streams are public highways, a person traveling such a highway has a right to fish in and upon it although this view is vigorously challenged. The confusion which I find in the expression of views by the majority arises from the fact of their erroneous assumption that since the adoption of the "Colorado doctrine" of appropriation, there is no common law of waters existing in this state. In Crawford v. Hathaway, 67 Neb. 325, 93 N.W. 781, 791, 60 L.R.A. 889, 108 Am.St. Rep. 647, the Supreme Court of Nebraska said:
"The two doctrines are not necessarily so in conflict with each other as that one must give way when the other comes into existence. The common-law rule of riparian rights is underlying and fundamental, and takes precedence of appropriations of water if prior in time. The two doctrines stand side by side. They do not necessarily overthrow each other, but one supplements the other."
I would say there is room for both doctrines but that they cannot both work at the same moment of time if they are in conflict. It might be difficult to resolve the conflicts where an appropriation has been made. But before an appropriation has been made I think that the common law is the only law that can apply. When the appropriation is made the law of appropriation steps in to the extent and only to the extent necessary to make the appropriation fully effective.
We are not concerned in the case at bar with just what the rules are which control appropriations of waters "in accordance with the laws of the state," since no appropriation has been made.
"Unappropriated waters" of streams cannot in the nature of things be completely idle and inert. Until it is appropriated and awaiting the touch of the hand of the appropriator "in accordance with the laws of the state," the laws of nature will operate upon it, through it and upon the land to which it is contiguous and which will inevitably impart fertility to the soil through which it flows and afford its beneficences to man and beast, bird and fish.
Are we to assume that since the law of appropriation has not yet taken hold because there has been no appropriation, that there is no law which will aid society while the water is waiting to be appropriated?
I think not, and I know of no other law than the common law which will fill these nooks and corners until the time comes for the common law to move out to some extent in favor of the law of appropriation. In a government publication entitled "Selected Problems in the Law of Water Rights in the West," at p. 32 is a head note as follows:
"Riparian and Appropriative Rights are Equally Entitled to Protection of Law. While the Doctrines Are in Conflict, Adjustments are Made in Specific Instances by the Courts." *Page 243
And the text says:
"The common-law riparian right vests at the time the land, of which it is a part, passed to private ownership. The appropriative right vests when the appropriation is made."
These views are supported in the opinion of Mr. Assistant Attorney General Fernandez, quoted supra, and find support also in an opinion of Attorney General Clancy given to State Engineer French August 17, 1916. The material portions of this opinion of Attorney General Clancy are as follows:
"I have had on my desk for several days your letter relative to the protest by J.L. Johnson against the granting of Application No. 973 made by M.H. Waller and Lewis Kennedy to appropriate the flood waters of the Tularosa Creek, together with a copy of the application, the transcript of testimony taken and a map. From what you say in your letter, which is confirmed by the testimony, the protestant's claim is based upon his alleged right to the flood waters of the stream which overflow his land and thereby increases the growth of grass thereon, the land being used for grazing purposes, and that his rights will be injured by the construction of the ditch proposed by the applicants, as it will decrease materially the flow over his land. It seems that the water flows naturally over Johnson's land without any effort on his part, needing no ditches or diversions, although the testimony indicates that in 1898 he did some work by filling up the channel so that the floods would spread over more of his land. Whether that which he then did and the subsequent use of the flood waters can be considered as amounting to an appropriation and application to beneficial use, does not seem entirely clear, but whether so or not, I am of opinion that he has some rights which your office will not be justified in disregarding in any action taken on the application No. 973.
"It clearly appears, as you state in your letter, that it is evident that there are flood waters running to waste and the applicants are entitled to appropriate them under our general irrigation system, but I cannot see that it would be proper to permit the construction of any irrigation works by those applicants which would interfere with the use of the flood waters by Johnson to the extent to which he has actually used them, and I think this is equally clear whether it is put upon the ground of prior appropriation on his part or upon his rights as a riparian owner.
"At the common law a riparian owner had the right to the undisturbed flow of a stream upon the banks of which his land lay, and such riparian rights are recognized even in the arid states of the Union, although with some necessary modifications on account of the paramount importance of the use of water for irrigation, which is clearly recognized in our legislation and also in Article XVI of the State Constitution. It necessarily follows that riparian rights cannot be said to exist in such a country as New Mexico to the full extent of *Page 244 their recognition and existence at the common law. The riparian owner, however, so far as he has any use for the water flowing in his stream, mustnot have that right impaired by appropriations of water madesubsequent to his beginning the use of the water so that what herequires will be materially diminished." (Emphasis supplied.)
I express no opinion as to Attorney General Clancy's interesting conclusion, but I call attention to the fact that an early legislative enactment (January 7, 1852) shows that the legislature recognized the impracticability of attempting to repeal the laws of nature. After declaring that "All rivers and streams of water in this Territory, formerly known as public ditches or acequias, are hereby established and declared to be public ditches or acequias", Comp.L. 1884, Sec. 6, they said: "All plants of any description growing on the banks of said ditches, or acequias, shall belong to the owners of the land through which said ditches or acequias run." Sec. 11, Comp. L. 1884. Thus, even the appropriator of water was compelled, whether he liked it or not, to surrender such benefits as even his water had imparted to the banks of said ditches and acequias as the waters washed them.
This view finds further support in the opinion of the Territorial Supreme Court in Trambley v. Luterman, 6 N.M. 15,27 P. 312, 315, where it was said:
"When the law declares that a riparian proprietor is entitled to have the water of a stream flow in its natural channel, ubi currere solebat, without diminution or alteration, it does so because its flow imparts fertility to his land, and because water in its pure state is indispensable for domestic uses; but this rule is not applicable to miners and ditch-owners, simply because the conditions upon which it is founded do not exist in their case."
When it is said, as it frequently has been, that the common law of riparian rights has been abrogated by the "Colorado doctrine" or the law of appropriation, what is meant is that so much of the riparian rights doctrine has been abrogated as is necessary to be abrogated in order to make the paramount doctrine of appropriation work successfully. Any residue of the common law of waters which it is not necessary to disturb in order to make the superseding doctrine of appropriation work to the full extent of its scope and implication remains. Let me illustrate: Let us visualize a natural stream, the waters of which have not been appropriated to a beneficial use by artificial means (it must be kept in mind that appropriation means diversion from the stream followed by beneficial use); and settlers have acquired land along the river and erected habitations and acquired livestock. As the water runs along, it adds to the fertility of the soil and provides water for domestic use without any appropriation in a legal sense by the riparian proprietor. These advantages the riparian owner enjoys because nature has planned it that way and because of the contiguity of the soil and water. All riparian owners along the stream possess the same right *Page 245 with the exception of the natural advantage that the upper riparian proprietor may have in his location. Law, says Cicero, arises out of the nature of things. It is surely in the nature of things that riparian proprietors enjoy and are entitled to enjoy the natural advantages of the contiguity of soil and water. So the matter stands until the Appropriator comes, asserting a right arising under the law of appropriation. The appropriator makes a diversion of the water and applies it to his beneficial use. This may be done upon lands contiguous to the river or upon non-contiguous lands. This beneficial use may be irrigation, power to run a mill, for mining, domestic or other beneficial purposes. But there must be a point of diversion and a diversion of the water. If the appropriator appropriates all of the water of the stream, it is in the nature of things that riparian proprietors above the point of diversion will be unaffected as to the natural advantages of conjunction of water and soil because common sense tells us that the laws of nature will continue to operate as before. But below the point of diversion the case is different. Riparian owners below the point of diversion will find their natural benefits and advantages gone as well as the water which is gone. That is the situation which caused concern to Mr. Attorney General Clancy and he expressed the view that even the rights of those below the point of diversion which had arisen merely from the nature of things must be taken into account by the appropriator and those administering the law of appropriation. It is said that the doctrine of appropriation arises out of necessity. At some times and places the necessity was to have water for mining operations. At other times and places it was the necessity for the raising of crops. That is what gave rise to the "Colorado doctrine" in our jurisdiction.
The prevailing opinion quotes from Hagerman Irrigation Co. v. McMurry, 16 N.M. 172, 181, 182, 113 P. 823, as follows:
"The doctrine of prior appropriation with application to beneficial use has definitely and wholly superseded the common-law doctrine of riparian rights in many of the jurisdictions in which irrigation is necessary to the growth of crops, and among them is New Mexico."
The implication is that the common law was at some time in effect in those jurisdictions; otherwise it could not have been superseded. The quotation employed goes on to say:
"The `Colorado doctrine,' as it is termed, first appears as a dictum in Coffin v. Left Hand Ditch Co., 1882, 6 Colo. 443. It is declared that, on the ground of imperative necessity, no settler can claim any right aside from appropriation. The decisions of our courts, which had established that doctrine long before it was adopted by statute, have been approved by repeated decisions of the Supreme Court of the United States. * * * Indeed, riparian ownership, as known to the common law, has never, it would seem, been recognized in New Mexico. * * * And the Mexican law, as well as the law of Indian tillers of the *Page 246 soil, who preceded the Spaniards here, as it may be gathered from the ruins of their irrigation systems, did but recognize the law of things as they are, declaring that such must, of necessity, be the use of thewaters of streams in this arid region." (Emphasis supplied.)
It is important to note that what our Court was talking about was the doctrine of prior appropriation known as the Colorado doctrine as applied to arid regions.
It must be apparent upon a little reflection that whether fish are to be caught from natural streams by the owners of the soil through which the streams run, and where the fish may be at the time of capture or when they are sought to be captured, is not determined by whether the region where they may be is arid or not.
I have not discovered in any of my reading on this subject, which has been rather extensive, that the rules as to the right of fishery are controlled by the conditions of aridity or humidity.
My argument is that whatever its origin, the appropriation doctrine has been superimposed upon an underlying riparian doctrine and that the basic riparian doctrine has been modified to the extent and only to the extent which is necessary to give full force, application and effect to this superimposed appropriation doctrine. I assert that the presence of fish in the water appropriated for mining, agriculture, industrial, domestic and other beneficial purposes is not essential to the beneficial use of the water appropriated for such purposes. We do not have far to look to find legislative and official support for this view. Sec. 30 of Ch. 85, L. 1912, which was a comprehensive code designed for the protection of game and fish states:
"It shall be the duty of the owner or owners of any canal or ditch into which any portion of the waters of any stream containing game food fish as defined by this Act are diverted for the purpose of irrigation or any other purposes which consumes such waters or any user of such waters so diverted, to construct and maintain at the head of such canal or ditch a paddle wheel or wheels, or other device, as may be directed by the State Warden, which shall be maintained during such portion of each year as such waters are diverted for irrigation or other purposes."
This section along with many other regulatory measures was repealed by Ch. 117, L. 1931 which authorized the Fish and Game Commission to make rules and regulations that it might deem necessary to carry out the purpose of protecting game and fish, and I am advised that experiments are now being conducted by the Game and Fish Department to accomplish the purposes contemplated by the statute last above quoted.
It is familiar law that when any portion of the common law is repealed or abrogated, any such alteration will not be considered effective to a greater extent than the unmistakable import of the language used. 15 C.J.S., Common Law, § 12. *Page 247
In Goldenberg v. Federal Finance Credit Co., 150 Md. 298,133 A. 59, it was decided that a statute repeals common law only to the extent of inconsistency therewith. And in Greene County v. Southern Surety Co., 292 Pa. 304, 141 A. 27, it was decided that it is not to be presumed that the legislature intended to make any innovation upon the common law further than the case absolutely required. Substantially the same thing was decided in Beals v. Ares, 25 N.M. 459, 185 P. 780, 788, where it was said: "In so far as was possible it (common law) operated in conjunction and harmony with the statutes." So, I say that the appropriation doctrine displaces the common law only in so far as it is an innovation upon and inconsistent therewith, and that since it is not essential to the beneficial use of water for any of the historic purposes for which it may be appropriated that fish go with the appropriated water, such fish must remain in the stream and the pursuit and taking thereof is governed by common law principles and by state legislative policy and regulations.
The vital and underlying principle of the riparian rights doctrine is that the riparian proprietor, as an incident to his estate, is entitled to the natural flow of the water of the running streams through his land in their accustomed channels, undiminished and unimpaired in quality. It is this right which the law of appropriation has taken away. The appropriator may change the natural flow of the water into new and artificial channels to non-contiguous lands and diminish the quantity. The rivalry between the two doctrines does not extend further. The appropriator appropriates water but not the fish that have their habitation in it. The appropriator acquires no ownership in the beds of the stream and the statute provides that if the approriator in effecting his appropriation takes any of the lands of the owner he must acquire it by conveyance upon an agreed basis of compensation or acquire it by eminent domain proceedings. The only thing changed by the appropriation is the right of the owner of the banks and beds of the stream to have the water flow as it has been accustomed to flow, uninterrupted and undiminished.
The majority concede that a reasoning by analogy will not carry the ownership of the beds of the stream out of the owner thereof and into the appropriator of the water, or even into the public, so how they are able through invoking the doctrine of appropriation to transfer the right of fishery which is incident to the ownership of the beds of the stream into the individual members of the public to be exercised without the consent of the owner and contrary to the declared policy of the legislature eludes me entirely.
The relation and privileges of the owner of the beds of the stream, as they pertain to the fish, have not been physically or legally changed in any wise whatsoever by the appropriation at the places along the river at the point of diversion.
So far as precedents illuminating the exact point is concerned, the most valuable *Page 248 is Hartman v. Tresise, 84 P. 685, 4 L.R.A., N.S., 872.
In that case the Supreme Court of Colorado had the precise question before it which we have here under a constitutional provision substantially the same as Sec. 2 of Art. 16 of our constitution. That court held that the constitution has no application to fishing rights and applied the general rule that the owner of the land under a nonnavigable stream had the exclusive right of fishery therein. The court states:
"As between those claiming a right of the same character, that is, a public right of fishery and a private right of fishery, this doctrine of the common law, being of a general nature, is just as applicable in Colorado as elsewhere. Necessity does not furnish a basis for the right of public fishery upon which, it is said in Yunker v. Nichols, 1 Colo. 551, rests the dominant right of one landowner in this state to build a conduit over the lands of another in order to get water from the stream to irrigate agricultural lands. Of course, as between those claiming either a public or private right of fishery in our natural streams, and those asserting the superior constitutional right of appropriation, the latter, in case of conflict, must prevail. But the rights here in controversy are both of the same character and subject to the common-law rule of decision. Gen.St. 1883, § 197. Plaintiff owns lands bordering on both banks of natural streams. As between him and the defendant, he owns the right of fishery in their waters within his outer boundaries. As between them, plaintiff also owns the beds of the streams just as much as he owns the adjacent banks or the soil anywhere within his surface lines. It necessarily follows that defendant has no right of fishery within plaintiff's enclosure."
There are several circumstances which give this opinion of the Colorado Supreme Court a peculiarly persuasive value.
The same physical conditions affecting the use of water exist in both Colorado and New Mexico, and in both the common law doctrine concerning the rights of private riparian proprietors is recognized as substantially controlling except as modified by the doctrine of prior appropriation known as the Colorado doctrine.
It has stood for over 40 years undiminished in potency by subsequent court decisions or law making bodies. It had stood for 5 or 6 years before our constitution makers framed the language of Art. 16, Sec. 2 of our constitution. It is to be presumed that our constitution makers during their labors consulted constitutional provisions of neighboring states dealing with questions and rules of conduct affecting conditions and circumstances similar to those existing here, together with court decisions construing such constitutional provisions. We have here the Colorado doctrine of appropriation as in Colorado and the court in Hartman v. Tresise, supra, found that the adoption and existence of such doctrine did not impinge upon the *Page 249 common law principles which control the rights of fishery. Counsel for appellee asserts that the decision has frequently been cited approvingly by many other courts and has not been criticized in any decision of other courts. This statement is not challenged by appellant.
It is not too much to claim that in adopting as a part of our constitution the companion provision of the Colorado constitution touching public waters, we at the same time also adopted the construction that had been given such provision by the Supreme Court of Colorado in the very respect here involved in the case of Hartman v. Tresise, supra, decided only seven years prior to the adoption of our constitution. We need cite no authority in support of the proposition that in adopting a statute or constitutional provision of another state, we adopt the construction previously given it by the highest court of record in such state.
My argument is further emphasized and the Colorado court in the Hartman v. Tresise case, supra, is sustained by the Supreme Court of Alabama in City of Birmingham v. Lake, 1942, 10 So. 2d 24, where the court held:
"Statute vesting in state title to all fish in public fresh waters of the state and declaring all waters of the state bounding or flowing through land, title to which is held by more than one person to be public waters, must be limited toconservation in keeping with the property rights of riparian owners." (Emphasis supplied.)
In other words they said the waters could be public for certain purposes including conservation, and yet this was not inconsistent with the common law right of the owner of the bed of the stream to have the exclusive right of fishing therein. From the opinion I quote the following:
"What of the right of the citizen to fish in Blackburn Lake?
"The Act `To define the status of fish life in the public fresh waters of Alabama,' c., Gen. Acts Extra Session 1933, p. 67, Section 1, reads:
"`The title ownership to all fish in the public fresh waters of the State of Alabama are vested in the State for the purpose of regulating the use and disposition of the same in accordance with the provisions of the laws of this State and regulations based thereon.'
"Section 4 reads in part: `All waters of this State are hereby declared to be public waters if such waters of any river, creek, lake, brook, bayou, bay, channel, canal, lagoon or other body, traverses, bounds, flows upon or through, or touches lands title to which is held by more than one person, firm or corporation. Any water impounded by the construction of any lock, dam or other devices used for impounding water, and placed across the channel of any public waters, as defined in this section are hereby declared to be public waters.'
"Blackburn Creek comes within this definition, and has at normal stage sufficient *Page 250 water to maintain fish, as further provided in the act. The waters are impounded by a dam.
"This statute was construed in Hood v. Murphy, 231 Ala. 408,165 So. 219. We there held, on ample authority, that the bed of a nonnavigable stream is the property of the riparian owner; that he has the exclusive fishing rights in such stream on his own lands. This is incident to ownership of the land.
"Such ownership cannot be divested and granted to the public by legislative fiat. Legislation to such effect is unconstitutional. See, also, Jones et al. v. Nashville, C. St. L. Ry., 141 Ala. 388, 37 So. 677. The act above quoted must be construed as limited to purposes of conservation in keeping with the property rights of the owner of the lands."
So, I say it is entirely consistent to construe our constitution as the Colorado Supreme Court in Hartman v. Tresise construed substantially the same language in theirs to mean that the water in natural streams is public only in the sense that it is to be conserved. That is, saved, preserved and protected and dedicated to the use of the public for the purposes mentioned in the same section, to wit, for appropriation to beneficial uses and until they have been so appropriated in accordance with the laws of New Mexico they remain subject to the same common law rights always appertaining to them.
Whatever else may be said and whatever the rights of fishery of our inhabitants are, it cannot be doubted that such rights are subject to regulation by the legislature and the Game and Fish Department within the exercise of authority properly delegated to it.
1941 Comp. Sec. 43-405 treats of the protection of game and fish on private property and provides that, "After the publication and posting of such notices it shall be unlawful for any person to enter upon said premises or enclosure for the purpose of hunting or fishing, or to kill or injure any birds, animals or fish within such enclosure or pasture at any time without the permission of such owner," and makes the violation of the provisions of the Section a misdemeanor.
And 1941 Comp. Sec. 43-301 provides in the first paragraph thereof:
"No person shall at any time shoot, hunt, kill, injure, or take in any manner, any game animal, game bird or game fish without paying for and having in possession a license as herein provided for the year in which such shooting, hunting, fishing or taking is done."
The second paragraph provides how and to whom hunting and fishing licenses may be issued.
Paragraph 9 of said Sec. provides:
"No hunting or fishing license shall entitle the holder therefor to hunt, kill or take game animals or birds or fish within or upon any park or enclosure licensed or posted as provided by law, or within or upon any privately owned enclosurewithout consent of the owner *Page 251 or within or upon any game refuge. (Laws 1912, ch. 85, § 12; Code 1915, § 2435; Laws 1915, ch. 101, § 7, p. 152; 1919, ch. 133, § 3, p. 285; 1927, ch. 34, § 1, p. 43; C.S. 1929, § 57-217; Laws 1935, ch. 123, § 1, p. 303.)" (Emphasis supplied.)
Sec. 43-510 provides:
"Any person who shall violate any provision of this act * * * shall be guilty of a misdemeanor."
This is a legislative recognition of the law as contended for by appellee, and furthermore it is a declaration of the policy of the state.
No one can lawfully hunt or fish for game animals or fish without a license. Anyone who accepts a license accepts the terms under which it is granted.
Hence, the real question is, has one desiring to hunt and fish "within or upon a privately owned enclosure without the consent of the owner" a constitutional right to do so notwithstanding the statute and the acceptance of a license issued pursuant thereto? In other words, is the statute constitutional?
The legislature, and not the courts, are the public policy makers for the state.
The public policy proclaimed by 1941 Comp. Sec. 43-301 is that even licensed hunters and fishermen shall not "hunt, kill or take game * * * birds or fish within or upon any park or enclosure licensed or posted as provided by law, or within or upon anyprivately owned enclosure without the consent of the owner."
Until the power of the legislature to proclaim such a public policy is directly attacked, I see no reason to anticipate such an attack and provide answers thereto which, as I feel, would be several fold and substantial.
It is to be noted that the offenses inveighed against in these statutes are not made to hinge on whether the violater committed any actual damage or not. The effect of the majority opinion is to nullify these statutes because it cannot be said to be a misdemeanor for a person to do what the Supreme Court says he has a right to do.
The Department of Game and Fish have published a booklet which is widely distributed advising the public of Game and Fish Laws and Regulations. A copy of this pamphlet before me admonishes: "Posted Property Does Not Furnish Hunting or Fishing," and declares to be among the sportsman's duties: "The first duty of every sportsman is to observe the letter of the law" and also quotes Sec. 43-301(9), heretofore quoted. Here we have a departmental construction that the law is as claimed by appellee. It is my opinion that the public policy of the state manifested by the foregoing acts of the legislature and as heretofore accepted and fostered by the Department of Game and Fish, is the best policy as tending to promote the greatest good to the greatest number, and that none more just and reasonable can be adopted *Page 252 for this state, and that even if there were a better one it should await the action of the legislature since the courts have no power to make or change public policy.
The experiment proposed and supported with great industry and zeal arises, I believe, from a desire to cater to the tourists who are said, in the language of the street, to be "our best crop". This is reflected in the language of the opinion as follows:
"Opportunities for enjoying general outside recreation, sports, and fishing, are recognized as one of the outstanding attractions of our state, as indeed they are of many of the states. The invitation to enjoy these activities is urgently and constantly extended by this and other states similarly situated, and millions of dollars are spent by tourists from less attractive areas who have come to enjoy them."
That consideration, if it is a sound one, should be addressed to the legislature and not to the courts. There are several objections to this reasoning of the majority. One is that it is not relevant. Another is that it is a sound observation of the law writers that: "It is easy to make precedents but very difficult to anticipate the ramifications of their application." And also, such reasoning is of doubtful value. Cf. 25 Mich.Law Review, 654 (659).
The Court of Errors and Appeals of New Jersey in Albright v. Cortright, 64 N.J.L. 330, 45 A. 634, 637, 48 L.R.A. 616, 81 Am. St. Rep. 504, said:
"It may be true that there is here, as there seems to be in England, a common misapprehension on this subject, and that a good deal of fishing that is thought to be of right is only permissive. But it is not desirable to change an important rule of law merely because it is sometimes misunderstood. In country life a multitude of acts are habitually committed that are technically trespasses. Persons walk, catch fish, pick berries and gather nuts in alieno solo, without strict right. Good natured owners tolerate these practices until they become annoying or injurious, and then put a stop to them. Little practical inconvenience results from this state of things, which the courts may well leave to regulate itself."
The prevailing opinion invites technical trespasses at least, closing eyes to feared actual damage which may follow such trespasses expressed in the plea of defendant and findings of the lower court. These threats of damage the plaintiff seeks to minimize by its allegation of its complaint as follows:
"That upon opening of the portion of the Conchas Dam reservoir to line B as shown on Exhibit A-4 to boating and fishing and other recreational purposes to the general public, the State of New Mexico will place adequate patrols on the shores of the lake in order to prevent any person from touching or allowing their boat to touch any part of the shore, or land on the bottom of the lake and will patrol and adequately *Page 253 control and supervise all portions of the lake in order to protect private property."
Just how this declaration of the plaintiff of its intention to "place adequate patrols on the shores of the lake" upon defendant's property squares with due process of law is not clear to me, and happily is not developed in the prevailing opinion. The foregoing allegation of the complaint, however, does indicate that the plaintiff anticipates that rights of defendant may be invaded and proposes to commit trespass of its own in order to repel damaging trespasses by members of the public whom it proposes to invite to commit what it appraises as mere technical trespasses.
The majority say that what is proposed to be permitted is not a trespass. This assertion, unsupported by citation of authorities, I may not let go unchallenged. What my learned associates of the majority mean, perhaps, is that in their opinion the trespasses invited will be inconsequential.
To say that in a case where there has been no separation of the land and the water, a going upon the water is not a trespass is of course shocking. And the principle that the land owner owns above and below the surface has been so uniformly asserted by law writers as to require little citation. "It [is] the consensus of the holdings of the courts in this country that the air space, at least near the ground, is almost as inviolable as the soil itself." See Herrin v. Sutherland, 74 Mont. 587, 241 P. 328, 332, 42 A.L.R. 937.
It has always been my understanding that the land owner is entitled to the "quiet, undisturbed, peaceable enjoyment" of the land. This old-fashioned idea finds support in Art. 2, Sec. 4 of our constitution where it is said that all persons have the right "of acquiring, possessing and protecting property."
To say that a trespass is not a trespass because the declarants do not anticipate that evil consequences will arise therefrom is a dangerous departure from principle.
Mr. Street in his work on "Foundations of Legal Liability," Vol. 1, page 19, et seq., shows how jealous the common law is in the protection of the owner of land against trespass. As I gather it, because there is often no other eye than that of the law to guard his lands, the law protects the land owner against trespass even though he is not able to prove a special damage, and if the trespass has been committed the plaintiff land owner suing for trespass will be entitled to nominal damages even though he has not been able to prove any actual damage. This deep concern for the land owner is illustrated by the following quotation from Mr. Street's comments on trespass upon realty heretofore cited:
"Upon comparing the rule in trespass upon realty (trespass quare clausum) with the rule in trespass for assault and battery, we note this distinction: In the field of battery, a touching which does no physical hurt is not actionable unless it be hostile. The person touched in a friendly way is *Page 254 perhaps supposed to consent to the touching. At any rate there is a legal presumption in favor of the friendly hand. In the field of trespass quare clausum it is different. There the legal presumption is against the intruder, and to escape liability he must nearly always show actual leave to enter. In both fields the state of the law seems to be such as to give the necessary protection respectively to person and property and no more. A man may well be expected to protect himself within certain limits from physical hurt. But there is often no other eye than that ofthe law to guard his lands.
"The reason for the stricter rule in trespass upon realty is apparently found in the fact that upon the action of trespass quare clausum has been largely put the burden of vindicating property right — one of the greatest ends, says Lord Camden, for which man entered into human society. The law unquestionably does not prize property more than it does personal security, but at some points it has had to put forth more energetic efforts to protect property than it has to protect personal security. When it was once determined that a man could resort to a form of trespass to settle a matter of disputed title, the character of the trespass upon realty was fixed. Thenceforth the common law, in considering liability for intrusions upon realty, could not undertake to discriminate between the much and the little. In the language of Littleton, J., `the law is all one, for great things and for small.'" (Emphasis supplied.)
Furthermore, the guess of the majority that the incursions into the space above the soil owned by the defendant will not be consequential is not shared by the trial court nor by the plaintiff, which has proferred its services to patrol the banks of the streams to minimize or prevent anticipated evil consequences, and it is not shared by our legislature which has inveighed against such incursions as heretofore pointed out.
The reference in the majority opinion to the extension beyond the conventional appropriation of water for beneficial use such as agriculture, mining, etc., are confusing unless the argument is that the practicing fisherman appropriates water to a beneficial use when he goes fishing in the waters of our natural streams.
It may be admitted that fishing is one of the best of the outdoor sports and beneficial to the individual and ultimately to society in general. But if it is claimed that the fisherman pursuing his art is effecting an appropriation of water for a beneficial use "in accordance with the laws of the state" to which the water is "subject," it is more than I can accept. It must be remembered that at the time of the adoption of Art. 16, Sec. 2 of our constitution, which says that the unappropriated water of natural streams is "subject to appropriation for beneficial use, in accordance with the laws of the state," we had a code governing the appropriation of water for beneficial use. Surely no one may reasonably claim that a fisherman appropriates water according to *Page 255 the provisions of this code. The only law that I know of that might be applicable to the fisherman in aid of his use of water is the code controlling and regulating game and fish which says that the fisherman must have a license before he may fish in our streams and the same law says that such a license does not afford fishing on posted lands or in the streams within enclosed lands without the consent of the owner. But the majority in effect say that the legislature had no power to impose these regulations and restrictions. So, the majority view reduces itself to the proposition that, while the appropriation of waters of natural streams for the beneficial purposes of agriculture, mining, power and industrial activities must be "in accordance with the laws of the state," there is no law and none may be enacted "in accordance with" which the fisherman may operate. This result, which is satisfactory to the minds of the majority, rather confirms my view that Sec. 2 of Art. 16 of our constitution has no application at all to the right of fishery as here involved.
From all of the foregoing and after painstaking consideration of the case, I am unable to comprehend any rational justification for the prevailing decision and believe it unjust and dangerous.
Therefore, I dissent.