dissenting.
I respectfully dissent.
This is a show cause proceeding to give “each defendant the opportunity to establish his priority and to contest the priority of the Carlsbad Irrigation District.” State ex rel. Reynolds v. Pecos Valley Artesian Conservancy Dist., 99 N.M. 699, 701, 663 P.2d 358, 360 (1983). Of this procedure our supreme court has said:
In effect, the inter se portion of the suit will proceed simultaneously with the individual determinations, giving each junior user the opportunity to contest the priority or any other aspect of the senior water rights, to assert his own priority and to raise any defenses which would preclude the termination of his right to satisfy the senior rights. (Emphasis added.)
Id. It is well established that a groundwater right priority date may “relate back” as a matter of law to an antecedent surface right priority date under the Templeton doctrine. See Templeton v. Pecos Valley Artesian Conservancy Dist., 65 N.M. 59, 332 P.2d 465 (1958); State ex el. Reynolds v. Allman, 78 N.M. 1, 427 P.2d 886 (1967); State ex rel. Martinez v. City of Roswell, 114 N.M. 581, 844 P.2d 831 (Ct.App.1992). Parker Townsend has defended by asserting what at this stage of the proceedings is essentially a Templeton defense. A properly argued Temple-ton defense would permit the priority of their “supplemental” well drilled in 1949 to relate back to the priority of their antecedent surface right fixed at 1884 and to which right the well is “supplemental.”
This show cause proceeding was brought pursuant to a 1962 subfile order that fixed defendants’ “supplemental” well priority at 1949. To overcome the 1962 subfile order and to establish their Templeton defense, defendants produced a 1976 subfile order fixing their surface priority at 1884 with a right to take their annual duty from either the surface source or the “supplemental” well described in both the 1962 and 1976 subfile orders. The trial court ruled that the 1976 order constituted a preclusive Templeton defense as a matter of law. The majority affirms the ruling but indicates that the 1976 order was not preclusive as a matter of law but rather was insufficiently rebutted by the state. This leaves open the question of the effect of the 1976 subfile order as a matter of law. The majority also intimates that in order to sufficiently rebut the 1976 subfile order, the state may be required to first seek to modify it by a motion brought under SCRA 1986, 1-060(B) (Repl.1992).
This case has two masks. One mask has the application of the Templeton doctrine as a question of hydrogeological fact. In other words, it places before the trial court the question of whether the factual predicates were demonstrated for the correct application of the Templeton doctrine. The other mask, worn by the trial court and the majority in this case, shows the question as the proper construal of a court order; in other words, a question of law. I dissent because the trial court and the majority have put the wrong mask on this case.
Defendants presented a Templeton defense of which the 1976 order was a component. The majority has subsumed the factual question of the correct application of Templeton into the question of whether the 1976 subfile order established a Templeton defense as a matter of law. The record discloses the state factually challenged the application of the Templeton doctrine to defendants because the underlying geohydrology would not support its application. Affidavits of experts and diagrams detailing the factual dispute appear therein.
The 1976 subfile order may establish a prima facie case for summary judgment. However, even if it does establish a prima facie entitlement to summary judgment, I do not agree that the state failed to rebut the 1976 subfile order sufficient to demonstrate that a fact issue remained for trial. The state argued that relation back may only be demonstrated through a showing that the water in the “supplemental” well is water obtained pursuant to the doctrine established in Templeton. The record indicates that there are many “supplemental” groundwater wells in the Pecos stream system. Our appellate courts have never considered the relationship between the commonly-used “supplemental” language appearing in the 1976 subfile order and the predicate factual showing necessary to invoke the Templeton doctrine as a matter of law. The district court ruled that the 1976 subfile order sufficiently demonstrated that the groundwater at issue is Templeton water and the majority apparently agrees. Because I believe the defense advanced in this case must in the first instance establish the correct application of the Templeton doctrine as a matter of fact, I believe a fact issue remains as to whether the water in defendants’ “supplemental” groundwater well is actually water obtained pursuant to the doctrine established by Templeton and subsequent cases. See State ex rel. Martinez v. City of Roswell. Accordingly, I would reverse the summary judgment award.