The facts necessary to an understanding of this case are fully stated in the able opinion rendered by the court below, which is a part of the record in this case, and it is not necessary to re-state them here.
Two questions are to be determined in this case, first, can a company»be lawfully incorporated under chapter 12 of the acts of 1887, (sections 468-493 compiled Laws of 1897), go upon the lands of private persons for the purpose of making a preliminary survey, and acquire the right of way through such lands by the exercise of the right of eminent domain under the terms of said act, unless it is shown that there is a surplus of water in the stream from which it is proposed to-' divert water, unappropriated and subject to diversion and appropriation? Second, can the company, organized under such act, exercise the powers granted thereby, unless it is itself the owner of the lands to be irrigated by the water to be so diverted, or have been previously employed by the owners of' such land to divert water for their use?
As to th'e first proposition, it is sufficient to say that the court below has found, as a fact, that there is a surplus of water in the Rio Grande, subject to appropriation, and that from said river the appellees proposed to divert, carry and distribute the same. There is ample evidence to sustain the findings of the court below, and it is a well-settled proposition that this Court can not disturb such findings.
It is undoubtedly true that the diversion and distribution of water for irrigation and other domestic purposes in New Mexico, and other Western states where irrigation is necessary, is a public purpose. This has been held by the Supreme Court of the United States in the case of Fallbrook Irrigation District v. Bradley, 164 U. S. 112. It seems to us to be equally well settled that it' is not necessary that the company diverting, carrying, delivering and distributing water for such purpose shall be itself a consumer, provided that the water, when so carried and distributed,, shall, within a reasonable time, be applied to a beneficial use. The able opinion of the court below discusses these propositions so fully, that we adopt its opinion and make it the opinion of this court, as follows:
This cause was brought into this court by change of venue from the county of Bernalillo, and has been submitted upon bill, answer and replication; cross-bill, answer and replication; oral and documentary evidence, and arguments of counsel.
To avoid unnecessary repetition, let it be understood that wherever the word complainant or plaintiff is used it means cross-defendant as well, and wherever the defendant is used, it means cross-plaintiff or complainant as well, as the issues joined are embodied in both the original and cross-suit and they will be considered together.
The proceedings had in these causes before his Honor Judge Crumpacker, presiding judge of the Second judicial district, have restricted somewhat the issues before this court, inasmuch as this court will not presume to review the action of the court of the Second judicial district, whose jurisdiction is co-extensive with that of this court.
The following proceedings were had in the Second judicial district court before the venue was changed to this court: Temporary injunction was granted upon complainant’s bill, January 17, 1898, and the defendants were ordered to show cause why the injunction should not be continued on the twenty-fifth day of January, 1898.
Defendants filed answer, cross-complaint and affidavits, January 25, 1898, and the cause was heard by the court and taken under advisement.
On the eighth day of February, 1898, the court rendered his opinion in favor of the complainant in the bill, and entered an order continuing the injunction in force against the defendants until the further order of the court, and denying the injunction prayed for by the defendants in their cross-bill.
On the nineteenth day of February, 1898, the plaintiff in the original bill filed demurrer to the answer and cross-complaint of the defendants, but upon hearing the court overruled the demurrer by an order entered March 12, 1898. The cross-defendants filed answer to the- cross-complaint, March 14, 1898, and the necessary replications being filed, the issues were fully made up on the complaint and cross-complaint.
On the eighteenth of May, affidavit and motion for change of venue was filed, and upon the same day objections were filed to the granting of the motion, but the court sustained the motion and ordered the venue changed to the First judicial district.
It will thus be seen that before the cause came into this court, his Honor, Judge Crumpacker, had not only granted the injunction prayed for in the original bill, but ordered same continued in force until further order of the court; that the injunction prayed for by the defendants in their cross-bill had been denied; and that the demurrer of the complainants to the new matter in the answer of the defendants and to their cross-complaint had been overruled. Therefore, all these matters have been eliminated and will not be reviewed here. The entire case is before this court on its merits, but the sole question to be determined is, whether or not upon the pleadings and proofs now before the court, either of the parties are entitled to a perpetual injunction, and if so, which. To determine this, the court must decide whether or not the Albuquerque Land and Irrigation Company have a legal right to construct canals, ditches or pipe lines authorized by their charter, and whether or not they have the right 'to enter upon, examine and survey, and which practically involves the right to condemn and excavate, 'so- much of the land of private owners along the line of their proposed canals or ditches as may be necessary for such purpose.
If complainants have this right under the law, then it follows that the defendants had no legal right to interfere with or obstruct them in the pursuit of this lawful purpose. On the other hand, if the complainant had not such a legal right, the cross-complainants had a right to prevent the company from attempting to exercise the right of eminent domain upon their lands along the proposed canal. Many questions are suggested by the pleadings that I do not deem it necessary or proper to consider in determining this case, indeed, the proofs are not sufficiently specific to enable the court to do so. I apprehend that the sole reason why the court of the Second judicial district did not award the complainants a perpetual writ of injunction was because the court was of the opinion that the main question in the case, viz., whether or not there was surplus water in the river that the complainants would have a right to conduct through their proposed canal, for the purpose of irrigation or for some other beneficial use, should be determined upon proof and not upon bill, answer and affidavits.
That counsel on both sides so understood the issue is plain from the nature of the oral and documentary evidence taken at the hearing. The evidence taken on behalf of the complainant tended to prove that there was surplus water in the Rio Grande at the point where the proposed canal was to be taken out, and the evidence taken on the part of the defendants, to show that all of the water of the river had been appropriated and that there was no surplus water. Of course, there was some proof as to other matters, but this was the main controversy as shown by the evidence. Furthermore, in my opinion, the nature of the case, as well as the law applicable thereto, makes the matter of surplus water the controlling question.
In 1887 the Legislature of this Territory passed an act providing for the formation of companies for the purpose of constructing irrigation and other canals, and the improvement and colonization of lands. Section 1 of chapter 12, Laws of 1887, is as follows:
“Any five persons who may desire to form a company for the purpose of constructing and maintaining reservoirs and canals, or ditches and pipe lines, for the purpose of irrigation, mining, manufacturing, domestic and other public uses, including cities and towns, and for the purpose of colonization and improvement of lands, in connection therewith; for either or both of said objects, either jointly or separately, shall make and sign articles of incorporation, which shall be acknowledged before the secretary of the Territory, or some other person authorized by law to take the acknowledgment of conveyances of real estate, and when so acknowledged such articles shall be filed with such secretary.”
That the complainant company was incorporated under this act is admitted by the defendants in their answer. Section 2 provides in paragraph 2, that :
“The purpose or purposes for which said company is formed; and if the object be to construct reservoirs and canals or ditches and pipe lines for any of the purposes herein specified; the beginning point and terminus of the main line of such canals and ditches and pipe lines; and the general course, direction and length thereof shall be stated.”
The articles of incorporation of the complainant company provide:
“The purpose for which said company is formed and created a body politic and corporate is to build, construct and maintain reservoirs and feeders therefor, canals, ditches, pipe lines, flumes and such branch lateral and side canals, pipe lines, ditches and flumes as may be necessary for the supplying of water for the purpose of irrigation and the improvement and colonization of lands in connection with such irrigation; and to acquire, purchase, lease and sell water, water rights, reservoirs, canals, ditches, pipe lines, flumes and lands in the furtherance of said purpose.”
Section 3 of said article fixes the beginning point, course, direction, distance and terminus of their proposed canal, as required by law. From an examination of the -law referred to and the articles of incorporation just quoted, it seems clear that the complainant company has brought itself within the terms of the law and is therefore entitled to the benefits, and to exercise all the powers conferred by the act.
The Legislature which passed the act is charged with a knowledge of the community ditch system of the Territory, and its benefits and defects. In enacting the law under consideration it was manifestly the intention of the Legislature, while preserving the present system and the rights of parties under it, to provide for a more modern and iinproved system of irrigation in the future, wherever it was desired and did not interfere with prior rights. That improved methods of storing and conducting water by means of reservoirs, canals, ditches and pipe lines, may be constructed and operated, the right of eminent domain is fully given by the act in the following language:
Chapter 12, section 17. “Corporations formed under this act for the purpose of furnishing and supplying water for any of the purposes mentioned in section one, shall have, in addition to the powers hereinbefore mentioned, rights as follows :
1. “To cause such examinations and surveys for their proposed reservoirs, canals, pipe lines and ditches to be made, as may be necessary to the selection of the most eligible locations and advantageous routes, and for such purpose, by their officers, agents and servants to enter upon the lands or water of any person, or of this Territory.
2. “To take and hold such voluntary grant of real estate and other property, as shall be made to them in furtherance of the purposes of such corporation.
3. “To construct their canals, pipe lines or ditches upon or along any stream of water.
4. “To take and divert from any stream, lake or spring the surplus water, for the purpose of supplying the same to persons, to be used for the objects mentioned in section one of this act, but such corporations shall have no right to interfere with the rights of, or appropriate the property of any person except upon the payment of the assessed value thereof, to be ascertained as in this act provided: And, provided, further, that no water shall be diverted, if it will interfere with the reasonable requirements of any person or persons using or requiring the same, when so diverted.
5. “To furnish water for the purposes mentioned in section one, at such rates as the by-laws may prescribe; but equal rates shall be conceded to each class of consumers.
6. “To enter upon and condemn and appropriate any lands, timber, stone, gravel, or other material that may be necessary for the uses and purposes of said companies.”
It is difficult to see how the Legislature could have conferred more complete powers upon such companies than it did by that act, and that the Legislature has power to enact a law granting the right of eminent domain is settled, provided the property taken is for a public purpose.
irrigation* tRereforía*i011 That lands condemned and used for the right of way of reservoirs, canals, ditches and pipe lines, for the purposes specified in the act above referred to, are for a public purpose, is too plain to require extended discussion. Congress has liberally granted this right over the public domain for the purpose of the construction of railroads and for other public uses, and State and Territorial Legislatures have granted this right for purposes of irrigation, railroads, public roads and for other purposes. In arid regions the construction of systems of reservoirs, canals and ditches for the use of the public in irrigating lands, is certainly as much for a public purpose as railroads or public roads, and authority to exercise the right of eminent domain is even more of a necessity than for such purposes. Broder v. Mining Co., 101 U. S. 274; Fallbrooks Irrigation District v. Bradley, 164 U. S. 112; Bridal Veil Lumber Co. v. Johnson, 46 Pac. 790; 14 Lawyers’ Annotated Reports, page 762; Oury v. Goodwin, 26 Pac. 377. The Legislature of this Territory, however, placed a specific limitation upon the exercise of the right of eminent
■"^on^owersofirl rigation com-panics. domain, by the use of the following language: “To take and divert from any stream, lake or . , ,, „ , spring, the surplus water. Section 17, subsection 4.
Burden oí proof of surplus. If, therefore, the complainant company proposed to divert water, and obtain a supply for its canal from the Rio Grande alone, under the above section its power to exercise the right of eminent domain would be subject ability t0 show that there was surplus water in said stream, and for that purpose, the burden of pro.of is upon the complainant, as the court has ruled.
S™finYtíono£t6r: Now, what is surplus water? Surplus water, for the purpose of this case, is water which has not been diverted and applied to a beneficial use prior to the filing °£ complainants’ bill. To state the proposition another way: Surplus water is all water running in the Rio Grande not subject to a valid prior appropriation.
TersSipV£ofe°wai streams: puaoc-approp°lat?ou°r Defendants’ contention that there is no such thing as piivate ownership in the waters of the streams of this Territory is undoubtedly correct. All the right ob-tainable in the water of public streams of the Territory is the right to appropriate so much thereof as is actually used for some beneficial and legal purpose. This appropriation may become a vested right by continuous use, or it may be lost by non-use, and in this the right differs from private ownership.
The doctrine of the Common Law no longer obtains in what is known as the arid and mountainous region of the west, and the doctrine of prior appropriation has been substituted for the Common Law as a matter of necessity, on account of the peculiar conditions existing in most, if not all, ■the mountain States and Territories.
In the case of United States v. The Rio Grande Dam & Irrigation Co. (a case decided May 22, 1899), the Supreme Court of the United States discusses the law of water rights and refers to the laws of Congress on the subject, as follows:
“Notwithstanding the unquestioned rule of the Common Law in reference to the right of a lower riparian proprietor to insist upon the continuous flow of the stream as it was, and although there has been in all the western States an adoption or recognition of the Common Law, it was early developed in their history that the mining industry in certain States, the reclamation of arid lands in others, compelled a departure from the Common Law rule, and justified an appropriation of flowing waters both for mining purposes and for the reclamation of arid lands, and there has come to be recognized in those states, by custom and by state legislation, a different rule — a rule which permits, under certain circumstances, the appropriation of the waters of a flowing stream for other than domestic purposes. So far as these rules have only a local significance, and affect only questions between citizens of the state, nothing is presented which calls for any consideration by the Federal courts.” In 1866 Congress passed the following act (14 Stat. 253; Rev. Stat. 3339):
“Whenever, by priority of possession, rights to the use of water for mining, agricultural, manufacturing or other purposes, have vested and accrued, and the same are recognized and acknowledged by the local customs, laws and decisions of courts, the possessors and owners of such vested rights shall be maintained and protected in the same, and the right of way for the construction of ditches and canals for the purposes herein specified is acknowledged and confirmed; but whenever any person in the construction of any ditch or canal, injures or damages the possession of any settler on the public domain, the party committing such injury or damage shall be liable to the party injured for such injury or damage.”
In 1887 an act was passed for the sale of desert lands, which contained in its first section this proviso (19 Stat. 377) :
“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 lakes, rivers and other sources of water supply upon the public lands and not navigable, shall remain and be held free for appropriation and use of the public for irrigation, mining and manufacturing purposes subject to existing rights.”
On March 3, 1891, an act was passed repealing a prior act in respect to timber culture, the eighteenth section of which provided (26 Stat., 1101):
“That the right of way through the public lands and reservations of the United States is hereby granted to any canal or ditch company formed for the purpose of irrigation and duly organized under the laws of any State or Territory, which may have filed, or may hereafter file, with the Secretary of the Interior, a copy of its articles of incorporation, and due proofs of its organization under the same, to the extent of the ground occupied by the water of the reservoir and of the canal and its laterals, and 50 feet on each side of the marginal limits thereof; also the right to take, from the public lands adjacent to the line of the canal or ditch, material, earth and stone necessary for the construction of such canal or ditch; provided, that no such right of way shall be so located as to interfere with the proper occupation by the government of any such reservation, and all maps of location shall be subject to the approval of the department of the government having jurisdiction of such reservation, and the privilege of water for irrigation and other purposes under the authority of the respective States and Territories.”
This extended quotation from the most recent statement of the doctrine from that court will obviate the necessity of citing other cases.
Water is declared free in the public streams of the State of Colorado, by express provision of the constitution of that State, and the courts of that State apply the doctrine of prior apprppriation in determining its water rights. The decisions of the courts of Colorado are, therefore, very instructive in similar litigation in this Territory, inasmuch as the Legislature of this Territory in 1876 declared that “All currents and sources of water flowing from the natural sources in the Territory of New Mexico, shall be and they are by this act declared free.” Section 52, Compiled Laws of 1897.
Pbiobapprogriation: what it is. The doctrine of prior appropriation is the law governing water rights in this Territory, and to constitute a valid prior appropriation of the water of the Rio Grande two things must be established.
1\ There must be a rightful diversion,
2. ^n appiication to some beneficial use.
And neither of these is sufficient without the other. It is not essential that the water shall be used by the person or corporation diverting the water from the stream, for the law is well settled that water may be diverted from the streams by canals and ditches owned by individuals or corporations, and conducted long distances and beneficially used by others. This is fully established by the large canal and ditch systems existing in California, Colorado, Arizona and many other States. In such cases the beneficial user is held to have constituted the ditch or canal company his agent to divert and conduct water for his use, and the Latin maxim, qui facit per alium, facit per se, seems to apply in such cases.
I see-no reason, therefore, why such reservoir, canal and ditch companies as are authorized by the laws of the Territory should not be allowed to perform services in connection with the irrigation of lands in this Territory similar to those performed by such corporations in other States and Territories where the same law, as to water rights, prevails. I can see no legal reason for preventing them from exercising the power conferred upon such companies by the statute, provided there is surplus water subject to appropriation through the agency of such company.
To determine whether or not. there was any surplus water in the Rio Grande, subject to- appropriation and use by complainant’s proposed canal or ditch, it becomes necessary to ascertain from the evidence how much of the waters of that stream had been legally diverted and used for a beneficial purpose prior to the inception of plaintiff’s rights.
I find, from the evidence, that the headgate of complainant’s proposed canal is to be at a point on the Rio Grande three-eighths ($i) of a mile below or south of the Indian village of San Felipe, about 28 miles above the City of Albuquerque; that the terminus or point of discharge into the river is at the railroad bridge near Isleta, the entire length of the canal to be about 35 miles; the present proposed terminus is at the City of Albuquerque; that the engineer of the company, Mr. Harroun, was proceeding with a survey of the line between Albuquerque and the headgate when the interference of the defendants occurred, which led to the legal proceedings in which injunction issued as above referred to. The capacity of the canal I find to be 210 cubic feet of water per second.
There is controversy as to the number of ditches on either side of the river between the proposed headgate of the proposed canal and Albuquerque, and also from Albuquerque to the terminus. All of the witnesses agree that there are at least ten acequias taking water from the river between the proposed headgate and Albuquerque on the east side, and at least three upon the west side. There are seven ditches heading below Albuquerque, down to Isleta, as shown by Mr. Follett’s report, and all upon the west side of the river.
The capacity of these ditches must be ascertained from the testimony of Mr. Harroun, and Mr. Follett’s report, as none of the other witnesses testify upon this point.
Mr. Harroun, and Mr. Follett’s report practically agree that the io ditches on the east side of the river above Albuquerque have a capacity of 180 cubic feet per second, and that the three ditches on the west side above the city have a capacity of 45 cubic feet per second. Mr. Follett’s report alone gives the capacity of the ditches between the city and Isleta, and from this we find their capacity to be 273 cubic feet per second. Thus I find that the capacity of all the old ditches along the route of the proposed canal to have been 498 cubic feet per second, and this amount of the water of the Rio Grande was legally diverted by the old ditches prior to the existence of any rights of the complainant.
The proof as to whether or not this entire amount was used for a beneficial purpose is not sufficiently specific to enable the court to find that it was not. Mr. Harroun is of the opinion that about one-half of the water diverted by the old ditches is wasted, and while the court has no doubt that a large portion of the water thus diverted is wasted, still the proof is too general to warrant the court in holding that any specific part is wasted and not applied to a beneficial use. For the purposes of this case, therefore, I feel compelled to hold that there has been a prior appropriation of the water of the Rio Grande to the extent of the capacity of the ditches above referred to, but the court realizes that this is a very uncertain conclusion, as the testimony of Mr. Harroun is, that there are about 1,800 acres of swamp and meadow lands made thus by the waste waters from the old ditches. However, as this is not a final determination of this question, except for the purposes of this inquiry, it is the duty of the court to over-estimate rather than underestimate the quantity of water appropriated, that prior rights may be fully protected, in view of the uncertainty of the evidence on this point.
Turning now to the flow of water in the river at the point where the headgate of the proposed canal is to be located, I find the most reliable evidence to be that of Mr. Harroun, and the data submitted in connection with his testimony, inasmuch as his personal researches and investigations have been much greater than those of the other witnesses, and being a competent civil engineer, his means of knowledge are much better than those of other witnesses. Indeed, he is the only witness on either side who attempts to testify as to the amount of water flowing in the Rio Grande, in any specific manner. The other witnesses testify that the river was dry. at certain times, and give their opinion as to whether or not there was any surplus during the dry season, but none of them attempt to testify as to the amount of water flowing in the stream. Mr. Follett’s report as to this matter is based largely upon data furnished by Mr. Harroun, as the report states, and as to certain dates and places, agrees with the testimony and data of Mr. Har-roun, but Mr. Harroun testifies much more fully and sub'mits data made upon more extensive and reliable investigation than that upon which the Follett report is based, and is, therefore, more Satisfactory. These measurements are only approximately correct, it is true, but they are the best obtainable evidence and are superior to the evidence not based upon measurements.
In regard to the flow of water in the Rio Grande at Embudo, Rio Grande and San Marcial for the years 1895, 1896 and 1897, Mr. Harroun testifies:
“In 1895 the flow at Embudo aggregated 885,279 acre feet. That flow may be taken as. the flow of San Marcial. The flow at Rio Grande during the same year was 1,392,507; there was an increase between these two points of 57 per cent.
“Q. Between Embudo and San Marcial? A. Yes, sir; 57per cent, in 1895, between these two points. In 1896, the flow at Embudo was 467,960 acre feet.
“Q. What was it at San Marcial? A. There is no record made for 1896; no. record whatever; although the gauge heights are kept continually the channel is so shifting that with the few measurements that were made during 'that year no careful conclusions can be drawn from the gauge heights; but in 1896, the flow at Embudo was 467,960 acre feet with an increase of 47 per cent, between that and Rio Grande, which was 698,072 acre feet; the flow at San Marcial during 1896 was 566,499, or a loss between these two points of only 19 per cent.; in 1897, the Embudo flow was 1,112,382 acre feet, and Rio Grande 1,909,060 acre feet, showing an increase between these two points of 71 per cent.; the flow at San Marcial was 2,331,586 acre feet, an increase of 22 per cent, between these two points.
“Q. Explain what, you mean by acre feet? A. An acre foot is the amount covering one acre one foot, 43,560 cubic feet equal to about one acre foot in every 24 hours.
“Q. I will ask you to state if you have the data from which you can give the flow at these points in the months beginning with February and ending with October in each year of these years? A. Yes, sir; at Embudo the mean flow in 1895, during the month of February, was 503 cubic feet a second; in March, 759; April, 2,541; May, 2,679; June, 3,021; July, 1,335; August, 1,080; September, 636; and October, 494.
“Q. In 1895? A. Yes, sir. At Rio Grande, the same year, the flow in February was 591, this is the mean flow for the month; March, 1,371; April, 5,075; May, 4,411; June, 4 630; July, 1,768; August, i„ .81; September, ^22; October, 707; there is no record of San Marcial during 1895. In 1896, at Embudo, the mean February flow was 551; March, 957; April, 1,797; May, 1,598; June, 367; July, 299; August, 249; September, 222; October, 349; for 1896, at Rio Grande, there is no record from March 4th to March 31st; the first three days of March giving a mean flow of 1,355 second feet; for April, 3,483; May, 2,704; June, 535; July, 412; August, 243; September, 299, and October, 461; for 1896, at San Marcial the mean flow for February was 680; March, 679; April, 3,142; May, 2,019; June, 466; August, 1,181; September, 130; October, 742. In 1897, at Embudo, the'flow in cubic feet per second was, for February, 407; March, 561; April, 1,691; May, 5,443; June, 4,596; July, 1,248; August, 388; September, 344, and October, 1,535; at Rio Grande for the same year, the flow was for February, 541; March, 985; April, 5,056; May, 11,454; June, 6,153; July, 1,580; August, 458; September, 650; October 2,227; for San Marcial during the same months, the flow for February was 434; March, 660; April, 3,584; May, 12,173; June, 6,156; July, 1,117; August, 101; September, 1,907; October, 4,019; as I have said before the record for 1898 is not concluded; that is the mean flow for the months mentioned.
“Q. Now explain what you mean by mean flow? A. The mean flow as there noted, is the sum of the acre feet per day divided by the number of days in the month, the sum of the acre feet and the number of feet per second divided by the number of days in the month.
“Q. I want to get the flow in each month, for a given day in each month, for the months of May, June, July and August, of each of the years from which points your observations were taken nearest to this ditch. A. The nearest station is at Rio Grande; the flow for April was 1,610 cubic feet per second; these are all figures in cubic feet per second; in May, 2,240; June, 1,120; July, 1,005; August, 705; September, 530. In 1896, the mean flow for April was 1,265; May, 255; June, 255; July, 210; August, 255; September, 350. For 1897, the mean flow for April was 10,200; May, 8,800; June, 2,486; July, 200; August, 240; and September, 360.
“Q. How far is this Rio Grande station from the proposed headgate of this plaintiff’s canal? A. It is about thirty-five miles.”
Mr. Follett’s report shows the following flow at RÍO' Grande station for the years 1895 and 1896: Summer flow in second feet in 1895 — April, 5,070; May, 4,615; June, 4,630; July, 1,170; August, 1,480; September, 720. In 1896 — April, 3,480; May, 2,710; June, 580; July, 440; August, 195; September, 590. Winter flow for same years at same station: October, 705; November, 835; December, 710; January, 760; February, 790; March, 1,370.
Rio Grande station is selected for illustration because it is the nearest station, where measurements were taken yearly, to the .headgate of the proposed canal, thirty-five (35) miles, and Mr. Harroun further testifies that the flow at the headgate was substantially the same as at Rio Grande station for the reason that there are tributaries between those points supplying a sufficient amount of water to equal the loss from seepage and evaporation.
From this testimony, I find, as a fact, that while during a few months, or parts of the summer months, of the years 1894, 1895, 1896 and 1897, there was no surplus water flowing in the river at the proposed headgate, during a large' majority of the months of each of these years there was a large amount of surplus water flowing past that point. All of the witnesses testify that the years 1894, 1895 and 1896 were the dryest years known, some say for ten and others for twenty years, and the only years in which the river was dry at or above Albuquerque.
I also find, as a fact, that in a majority of the last ten years there has been surplus water flowing in the river at the proposed headgate at all times, as witnesses, some of whom were mayordomos of those ditches, testify there was no scarcity during those years/
I further find, as a fact, that the river became dry at Albuquerque about the last of June and remained so, as most of the witnesses testify, for twenty-two days in 1894, and also in July, 1896, the number of days cannot be definitely stated from the evidence. Mr. Follett’s report states that the river was dry at Albuquerque through July, 1895, but Mr. Follett doubts this, and it would seem clear that it was not, as Mr. Follett’s report states that there was “water all summer” in the river at Los Lunas. I find as a fact that the irrigation season begins in February and ends in October.
I find, as a fact, that the months of June, July, August and September, are considered the dry season, and I further find that what is known as the rainy season occurs during these months, also, so that it is possible for the dry season to become the wet season and the anomaly may be explained by stating that the term “dry season” refers to the water in the river rather than the rainfall.
I find, as a fact, that very few farmers, served by the present ditches, sow wheat, oats, barley or rye in the fall of the year, but do so in the spring, beginning during February or March; and I further find that very little, if any, of the water now appropriated is used for those crops after July 1st, in fact, very little is used for those crops after June 15th, but water is used for chile, corn, alfalfa and melons after that time, and for alfalfa as late as October. It appears, therefore, that less of the water diverted by the present ditches is used after the first of July, than is used before that date when the grain crops and all others are growing.
The witnesses for the defense were asked the following question: “From your knowledge of the existing system of community ditches and of the Rio Grande, is there, or is there not, any surplus of water in the Rio Grande in that vicinity during the dry season ?” The answer was that there was no- surplus.
As has been stated, there was also testimony that the river was dry in 1894 and 1896 at different dates during the dry season. It will be observed that this testimony is confined, especially, to the dry season. This period in-eludes June, July, August and September, but as a matter of fact there is usually a large surplus in June, and frequently in September, also.
The limitation to the dry season makes the testimony immaterial, because if there was surplus water flowing in the river there at any time it was subject to diversion and use, and being surplus and unappropriated water, there can be no injury done to any prior appropriator; the law will protect him in the use of the water actually appropriated. Section 17 of chapter 12 grants the right of eminent domain to companies utilizing surplus waters for certain beneficial purposes, and the use of the word surplus would indicate that the Legislature had in mind streams whose waters had been in part1 appropriated. If there is surplus and unappropriated water in the stream, companies have a right to organize and exercise the powers conferred upon them by the statute and this right is not dependent upon a contingency such as the possible failure of the water supply during a few months of exceptional years.
The court takes judicial notice of the fact that from October until about the first of March in each year there is very little water used for any purpose by the farmers in the valley of the Rio Grande, and as a matter of law, it is not an invasion of his rights for a subsequent appropriator to use water after a prior appropriator has ceased to do so.
I am unable to ascertain the acreage in cultivation, except from the testimony of Mr. Harroun, as the other witnesses do not know and do not attempt to state it. Mr. Harroun says there are probably 12,000 acres there, subject to irrigation, but that only about 3,200 acres are served by the present ditches, and this is the extent of present cultivation ; and he further says that at least 7,000 additional acres could be served by the proposed canal if a supply of water equal to the capacity of the canal can be obtained.
The witnesses on behalf of the defendants testified that they did not know of any beneficial use to which complainants could put the water in the event of the construction of the proposed canal. Such evidence is not of much value in view of the testimony that there are 7,000 acres of irrigable land which the present ditches are unable to serve. If any part of this additional acreage could be brought under cultivation by means of the canal it would be a beneficial purpose within the meaning of the statute. It is evident that these witnesses so testified from a belief that there is no surplus water, or, that the present method of irrigating and cultivating land cannot be improved. I am of the opinion that the premises are wrong in either case and their conclusions necessarily wrong.
The court has found that there is surplus water in the Rio Grande during a majority of months of every year, and is equally satisfied that the present system ,of both irrigating and cultivating lands in this Territory can be greatly improved by the adoption of more modern methods of storing and conducting water upon the lands, and a more economical use of it .when so conducted. Mr. Follett’s report shows that many of the present ditches were in use iod years ago, and it would seem strange that a system one hundred years old could not be improved upon.
I do not underestimate the present ditch system, for in some respects it is very good and so long as it is in existence its status and rights must be upheld by the courts; but that it is not an economical system, that it has no provision for storing water, and that there is an equal distribution of the water, is within the knowledge of this court, and is shown by the testimony.
The suggestion that the water cannot be used for a beneficial purpose during the six months when it is not used by the ordinary farmer I cannot accept. Mr. Blueher testifies that he uses water all the year in his market gardening, and in view of the provision of the statute, and of complainant’s charter, the court would not be warranted in holding that the water cannot be applied to some of the purposes declared to be a beneficial use by the statute.
The right of eminent domain may be exercised by corporations organized under chapter 12, Laws of 1887, in constructing reservoirs, canals, ditches and pipe lines for the purpose of conveying surplus water for irrigation, manufacturing or mining purposes, and the exercise of this right is not dependent upon the ownership of lands by the company or contracts with customers for the use of water. These considerations may be important when the actual diversion of the water through the canal is attempted, but for the purpose of constructing the system the existence of surplus water is the controlling consideration. These companies are quasi-public servants, and their existence is authorized by law.
In Wheeler vs. Irrigation Co., 17 Pac. 487, the Supreme Court of Colorado says that such a canal is a “quasi-public servant. It exists largely for the benefit of others, being engaged in the business of transporting for hire water owned by the public to the people owning the right to its use. It is permitted to acquire certain rights‘as against those subsequently diverting water from the same stream. It may exercise the right of eminent domain.”
In Coombs vs. Ditch Company, another Colorado case, it was held that an owner of land along the line of the ditch could compel the company to supply him with water; 28 Pac. 966.
In Broder vs. Mining Company, 101 U. S. 274, it was held that the rights of such companies “are rights which the government had recognized and encouraged and was bound to protect.”
In Ditch Company vs. Bennett, the court says:
“No sufficient reason has been suggested why the contemplated use may not be for and upon the possession of a person other than the appropriator. The authorities we have seem to support that it can be, and we believe it is correct upon principle. We take it, therefore, that the bona fide intention, which is required of the appropriator to apply the water to some useful purpose, may comprehend a use to be made through some other person and upon lands and possession other than those of the appropriator. Thus the appropriator is enabled to complete and finally establish his appropriation through the agency of the user.”
It is also held that such canal companies “must be regarded as an intermediate agency existing for the purpose of aiding consumers in tfm exercise of their constitutional rights, as well as a private enterprise prosecuted for the benefit of its owners.” Wyatt v. Irrigation Co., 33 Pac. 147; Reservoir Co. v. Southworth, supra; Strickler v. Colorado Springs, 26 Pac. 313; Oury v. Goodwin, 26 Pac. 377.
The law laid down in the cases cited above is applicable to similar litigation in this Territory, as the law of prior appropriation governs in both jurisdictions. These corporations are deemed to be beneficial in the development of the country and the right of eminent domain is accorded them to facilitate their operations. Sub-section 6 of section 17, quoted above, provides that lands, stone, timber, gravel or other material, or so much thereof as may be necessary, may be condemned and appropriated by such companies, but in case of a failure to agree upon compensation for property thus taken, section 18 provides:
“Should any such corporation be unable to agree with the owners as to the compensation to be paid for any such land, water, timber, stone, gravel or other materials, the amount shall be ascertained and determined by the appraisal of three disinterested commissioners, who shall be appointed on application of either party, and upon five days’ notice to the other party, by^he judge of the district court in and for the district in which such land, water, timber, stone, gravel or other material may be situated; and said commissioners, in their assessment of compensation, shall appraise such premises or property at what would have been the value thereof, if such reservoirs, canals, ditches or pipe lines for which such premises or property shall be required, had not, or was not in contemplation of being built or constructed; and upon a return into court of such ap-praisement, and upon the payment of the clerk thereof, or to the parties entitled to such compensation, the amount so assessed by such commissioners, the land, water, timber, stone, gravel or other materials so appropriated shall be deemed to be taken by such corporation, which shall thereby acquire full title to the same, for the uses and purposes aforesaid.”
In view of these provisions of the statutes, it cannot be considered an invasion of private rights, to condemn and appropriate so much of the lands of private owners as may be necessary, by such reservoir and canal companies. Compensation for such property is deemed sufficient for the owner, but the right to the use of so much water as has been lawfully appropriated is not subject to this rule, and the appropriator is given ample protection by the provision that only surplus water may be appropriated by such companies.
Defendants contend that under section 25 of the act above referred to, the complainant company is prohibited from appropriating any water from the Rio Grande between the fifteenth day of February and the fifteenth day of October in each year. While I do not deem it necessary to pass upon this question for the purpose of this case, I have given the matter consideration and have arrived at the conclusion that the Rio Grande is not within the operation of' that section.
The act of 1887, section 25, being section 492 of the Compiled Laws of 1897, provides in substance that no corporation organized for taking water for the purpose of irrigation or other purposes shall have any right to divert the use of the natural flow of water or any stream which by the law of 1854 had been declared a public acequia, for any use whatever, between the fifteenth day of February and the fifteenth day of October of each year, unless with unanimous consent of every person holding agricultural and cultivated lands under such stream or public acequia, etc.
A reference to the session acts of 1854 will show that there was no statute passed at that session of the Legislature on the subject referred to. In 1852 the act of January 7 was passed, which may be found in the Compiled Laws of 1865, page 20, in full; all the material sections of this act were also compiled in 1884, beginning with section 6 of the Compiled Laws of 1884, in fact section 6 is the only material section so far as the present inquiry is concerned. This section is also carried into the compilation of 1897, as section 6. As there was no act of 1854, as referred to in the act of 1897, it is clear that this was a mistake; the act of 1852 was evidently intended. In 1854 the Davenport compilation of the statutes was made and the act of 1852 was carried into that compilation in full. See Revised Code of New Mexico, page 86. This accounts for the mistake; reference was evidently had to that code instead of the Session Act.
A consideration of the section (6) above referred to, together with the entire act, will show that it could have no application whatever to a stream like the Rio Grande; what is meant by this section is such ditches, acequias or natural water courses used as acequias, as have become the subj ect of private or community ownership, and upon which labor is expended for the purpose of appropriating the water therefrom and using the same to irrigate the lands of the persons so working thereon.
The defendants seek to defend, not only on behalf of themselves, but also on behalf of their grantors, ancestors and others “to the number of many thousands,” and allege 'that for centuries, in some instances, their grantors and ancestors had used the waters of the Rio Grande and had secured rights under the laws of Spain and Mexico, guaranteed to them by the treaty of Guadalupe Hidalgo, to the full extent of the flow of said river during the planting and growing seasons, etc.
As to the first of these allegations of the answer, I must decline to consider the rights of other than the defendants and those interested along the line of the proposed canal. The court cannot consider the rights of all appropriators of water from the Rio Grande below the terminus of the proposed canal. First, because they are not parties to the suit, and therefore not subject to the orders, nor bound by the decision of this court. Second, the testimony of Mr. Harroun as to the flow of water shows that fully as much water flows-in the river at San Marcial far below Albuquerque, as flows at Albuquerque and above during most of the year, and sometimes much more, all of which tends to show that there are tributaries contributing waters to the lower part of the river that must be taken into account when the rights of appropriators below the proposed canal are determined. If the rights of appropriators below are affected by the diversion of water through the proposed canal, the courts are open for the protection of their rights. This case involves the right of eminent domain over the defendants’ land, or of land owners along the line of the canal, and as to that issue parties below the terminus of the ditch have no interest. The rights of parties to the use of water below the canal cannot be affected by this decision and. will not be considered/
Upon the other allegation of defendants as to treaty rights, I am of the opinion that the lands of citizens of New Mexico, since the cession, are subject to the operation of the law of eminent domain under the laws of the United States, and the States and Territories thereof, and not exempt therefrom by virtue of the treaty of Guadalupe Hidalgo. The appropriation and distribution of water must be governed by similar laws, inasmuch as the United States has, adopted its own system of water rights and adjusted the system to the different sections of'the country as necessity required, and the laws o'f the States and Territories are in harmony therewith. These laws must govern wherein they differ from the treaty provisions, and wherein they are harmonious, treaty provisions need not be considered. The laws of the United States and the States and Territories are ample for the protection of the rights of appropriators ofAwater in this Territory, and remedies for impairment or destruction of such rights, are adequate also.
It is insisted that the complainant company does not intend to construct a reservoir, or reservoirs, for the purpose of storing surplus water, nor has it the means to do so. The statute certainly authorizes such companies to do so ; the charter of this company provides for such construction; Mr. Childers, one of the incorporators, testifies that it is the intention of the company to construct reservoirs if it becomes necessary to do so; and Mr. Harroun’s testimony is to the same effect, and further, that it is feasible to do so. In view of this evidence, and the fact that other evidence in the case shows that the complainants are aware that the river may not contain surplus water at all times, I cannot accept the view that complainants do not intend to construct reservoirs for the storage of water; that they have not the means to do so is not a material matter at this time.
The fact that the headgate of the proposed canal is situated above the mouths of the other ditches is not material, as the rights of prior appropriators will be the same in any event.
It is true that the proposed canal may cross the line of one or more of the old ditches, but the construction of the canal cannot be prohibited for this reason. It is within the knowledge of this Court that the ditches now existing cross each other without affecting the flow of the water. Some of the ditches in the vicinity of Albuquerque cross each other, as shown by the plat filed as evidence. Of course, the complainant company will not be allowed to destroy the present ditches or in any way diminish the flow of water lawfully diverted by or flowing through the old ditches. If, however, the canal can be constructed without injury to the present capacity of the old ditches, it may lawfully be done. The remedy that the law provides cannot be invoked until injury is attempted or threatened, but the construction of the canal alone is not necessarily an injury, as it may not affect the rights of prior appropriators in the slightest degree.
The full scope of the defense in this case is to the effect, that all of the water of the Rio Grande had been legally appropriated before the inception of complainant’s rights. The logical conclusion from this would be, that there can be no further diversion of water from this stream, no further ditches or canals constructed, and no further lands brought under cultivation. I cannot so conclude from the evidence in this case, nor from the law of the case, as I understand it.
I am of the opinion that the complainant company had a legal right to construct the proposed canal at the time it attempted to do so, and for that purpose it was authorized to enter upon, examine and survey so much of the lands of the defendants as were necessary for the construction of said canal. That the defendants had no right to obstruct or interfere with the agents of the complainant in the prosecution of its work. That the injunction was properly granted and continued in force, and that the same ought to be made perpetual by the order of this court.
It is, therefore, ordered that the decrée rendered by. the court below, be affirmed, and that a decree be entered accordingly and that appellee have and recover its costs expended in this behalf, to be taxed.
Parker and Leland, JJ., concur. McFie, J., before whom the case was tried below, did not sit.