I concur in the result. The trial court found a fact which was a matter of common knowledge, namely, that the Peters well tapped the water of the Roswell Artesian Basin. It did not find as a fact that there was surplus water within the basin subject to appropriation, although concluding as a matter of law that there was unappropriated *Page 160 water "within the area" where the Peters well was drilled at the time in question "in the amount of 2000 gallons of water per minute for 285.6 acres." Just what is meant by this conclusion is difficult to understand. At the time in question it was a fact so well known as almost, if not quite, to warrant the trial court in taking judicial notice of same that there were no surplus waters in said basin subject to appropriation. How, then, there could be surplus water in the "area" of this well drilled into a basin having no surplus waters is something that would stand explanation.
The exhaustive Fiedler reports completed in 1931 were based on an extensive study of the waters of the artesian basin. New Mexico appropriated $5,000 to furnish colloboration of our State Engineer with the U.S. Geological Survey in the work incident to preparation of these reports. They are referred to in the dissenting opinion of then justice and present Chief Justice Brice in the former appeal of this case reported at 50 N.M. 165,173 P.2d 490, 514, as "public records in the office of the State Engineer" and quoted arguendo to sustain his dissenting position. Mr. Fiedler, in his report, touching the existence or not of surplus waters in this artesian basin, says:
"The total draft, both above and below the ground, due to wells is therefore probably in excess of 200,000 acre-feet a year. A comparison with the 165,000 acre-feet of flow from springs and other natural outlets from the reservoir estimated as being available for use in the artesian area would seem to indicate that the present rate of withdrawal is probably not over 30,000 to 40,000 acre-feet in excess of the safe yield."
And again at page 284 of this report Mr. Fiedler states: "Ground-water supplies, in common with other sources of water supply, are not inexhaustible. Because of the increased demandfor water for irrigation the safe yield of the artesian reservoirhas been exceeded." (Emphasis mine.)
The situation arising from overdrafts on the water supply of the basin so long ago as 1931 was such that Mr. Fiedler concludes the Chapter of his report entitled "Legal Provisions Governing the Use of the Ground Water" (Page 290 of Report) with the pertinent observations:
"Further general draft upon the Artesian reservoir should beprevented. * * * Additional appropriations of water for new land or for land that was formerly irrigated and has been abandoned because of insufficient water should not be granted." (Emphasis mine.)
The author of the prevailing opinion on this appeal thought enough of this report to refer to it as a "public record" in the office of the State Engineer and to quote from it. At that time, in 1931, the fact that all the waters of the artesian basin available for *Page 161 the purpose already had been appropriated to beneficial use was a matter of such general knowledge that the Tenth Regular Session of the Legislature made the following recitation in the preamble to L. 1931, c. 70, then in session appropriating $20,000 for plugging leaky wells as a means of conserving the diminishing water supply, to-wit:
"Whereas, the boundaries of the Artesian Reservoirs, situated in Chaves and Eddy Counties in the Pecos Valley extending southward from above the city of Roswell, have been scientifically and definitely determined; and
"Whereas, all of the waters of said reservoirs have beenbeneficially appropriated and have been made available by the drilling of several hundred artesian wells, many of which have been in use for a long period of time, and because of the disintegration, or rusting of the casings in many of the same the waters which would otherwise be stored in said reservoirs are finding outlet to the surface through the upper strata of the earth or flowing into porous sub-strata where they cannot be used and thereby materially diminishing the water supply and depleting and destroying the value of the lands irrigated therefrom." (Emphasis mine.)
Furthermore, a long established policy of the office of State Engineer has held Roswell Artesian Basin closed to additional filings since 1931 because of prior appropriation of all available waters to beneficial use as shown by the Fiedler report. A policy so long maintained could hardly have escaped public notice especially in the very heart of the artesian basin to which it relates.
The foregoing observations are made only to demonstrate that in so far as the decree under review rests upon the assumption that there are, or at the time of the drilling of the Peters well there were, surplus waters in the Roswell Artesian Basin subject to appropriation, it rests on a false assumption resulting from failure on the part of the plaintiff (appellant) to produce proof of the fact established by the Fiedler report, recognized also by the State Engineer and declared as well by the Legislature in the preamble to L. 1931, c. 70 — either by invoking judicial notice by the trial court of such fact or by its establishment through other means.
Until the later decision of the Supreme Court of California in Tulare Irr. Dist. v. Lindsay-Strathmore Irr. Dist., 3 Cal. 2d 489,45 P.2d 972, prior decisions of that court seemingly would have cast the burden on the defendant, Peters, in the case at bar to establish that there was a surplus of water in the artesian basin available for appropriation. Miller v. Bay Cities Water Co.,157 Cal. 256, 272, 107 P. 115, 122, 27 L.R.A., N.S., 772 and Peabody v. City of Vallejo, *Page 162 2 Cal. 2d 351, 40 P.2d 486, 498. However, in the Peabody case, supra, the rule as laid down in the two earlier cases is modified in the respect pointed out in the majority opinion and there is no disposition on my part to challenge same. It should be said, however, that a practical application of the rule will preclude injunctive relief against unlawful raids on the existing water supply of any artesian basin. This is so because of the sheer expense to a plaintiff of making the hydrographic survey and furnishing the proof essential in establishing the prima facie case necessary to shift the burden to subsequent appropriator of showing there is a surplus. Until the plaintiff has made out his prima facie case, he will not be entitled to enjoin.
It requires but a moment's reflection to satisfy the mind that the foregoing observation is true. In a suit to adjudicate the waters of the Cimarron river pending for many years in the district court of Colfax County in which the present Chief Justice while judge of the fifth judicial district by designation sat as trial judge there were approximately two hundred and fifty defendants. The actual trial consumed nearly two months. It was a statutory suit to adjudicate waters of the Cimarron stream system brought by the Attorney General under authority of the act hereinafter referred to. Under the rule this day approved on where the burden of proof lies, if an individual water user from that stream instead of the state had instituted suit against a subsequent appropriator, who happened to be without right and a trespasser because there was no surplus water subject to appropriation, before having injunctive relief what must he do?
First, he would have to guage the stream over a period of years to ascertain and prove the quantity of water subject to appropriation. Having done so, he would then have to survey, or cause to be surveyed, every acre of land of the 250 appropriators using water from the stream and establish by proof what a reasonable use of water thereon would demand. In the event such proof showed no surplus, then and only then, he might enjoin; otherwise not. The cost of such a procedure would run literally into thousands of dollars. No litigant with sound reason would undertake it. Nevertheless, this seems a difficulty inhering in the very nature of the litigation and one which the legislature alone can remedy. It presents an issue almost as difficult to establish as if one alive today were called upon to prove himself a lineal descendant of Adam.
Our legislature evidently sensed and attempted, although inadequately, to alleviate this burden when it enacted as a part of L. 1907, c. 49 (Secs. 18 to 21), provision for hydrographic surveys of stream systems in New Mexico appropriating several thousand dollars to cover the cost thereof, and *Page 163 authorizing suits by the Attorney General to adjudicate the waters of any stream system, directing the cost of same including that of the hydrographic survey, to be taxed against the private parties to such suits in proportion to the water rights allotted. See 1941 Comp., Secs. 77-401 to 77-411. Resort to this statute, in most instances, for an adjudication of the waters of an entire stream system or artesian basin, would seem to furnish the only escape from an otherwise impossible burden.
The prevailing opinion states that an action of this kind is in the nature of a suit to quiet title to realty, citing Harris v. Chapman, 51 Idaho 283, 5 P.2d 733, Whitcomb v. Murphy, 94 Mont. 562, 23 P.2d 980 and Tulare Irr. Dist. v. Lindsay-Strathmore Irr. Dist., supra. In procedural respects, yes — fundamentally, no. The contention was strongly urged on us in the former appeal by counsel for the defendant (appellee) and accepted by the present Chief Justice in his dissent, that this is a suit to adjudicate water rights. We rejected the contention. The conservancy district owns neither land nor water rights and sues only by virtue of its statutory duty to conserve waters of the artesian basin supplying its water users. Of course, as the plaintiff it must prove the facts entitling it to recover the judgment prayed for. In that respect, it is like a suit to quiet title to real estate. So, also, it is like an action to recover on a note.
One has only to compare this suit with a real suit to adjudicate water rights to be impressed by the points of distinction. One is impressed more by differences than by similarities. See City of Pasadena v. City of Alhambra, Cal. App., 180 P.2d 699, especially portion of the opinion supporting paragraph 9 of the syllabi. The cases cited to support the supposed analogy disclose the disparity. If seeking a true analogy, we would come nearer finding it as respects status of the conservancy district as plaintiff in a suit by a bailee of personal property to protect same against conversion or damage by third parties. The plaintiff there is not the owner, it is true, but is charged by the law of bailment with conserving and protecting the property in custody. So, here, the plaintiff owns neither land nor water right, but as a statutory corporate agency of the water users within the district, it is charged by law with the duty of conserving their water supply.
As well may be inferred from the foregoing, a strong impression prevails in my mind that the judgment in defendant's favor rests fundamentally on the false assumption that surplus waters exist in Roswell Artesian Basin subject to appropriation to beneficial use. Nevertheless, the plaintiff having failed to sustain its burden of making out a prima facie case that all available waters in the basin had already been appropriated to beneficial use *Page 164 when the Peters well was drilled, my concurrence in the result based on that single ground is herewith noted.
A.W. MARSHALL, District Judge, concurs.