On Second Motion for Rehearing. After appellee's first motion for a rehearing was overruled, it was granted leave to file and filed a second motion for rehearing. The cause is now before us on said motion.
It is said by the appellee that the majority opinion, in disposing of the first motion for a rehearing, "misconstrued appellee's contention as to the ownership of the water involved." Commenting on this point, the appellee states:
"We have never intended to contend, as stated on page 1 of the majority opinion on Motion for Rehearing [182 P.2d 457], that `all waters thereon (on the Grant) not theretofore (prior to date of patent) appropriated to some beneficial use, became the property of appellee as assignee of the United States.' Nor have we intended to contend `that lands granted by a United States patent carried title to running water passing through them.' (Opinion on Motion for Rehearing, page 7 [182 P.2d 460]). What we have contended, and do contend, is that after the patent, the water remained subject to appropriation for any beneficial use, but that any such appropriation or use must be derived from some Act of Congress permitting such appropriation or use, and that there is no such Act permitting use by the public for fishing or any other general use, the acts of Congress being limited to appropriation for some specific purpose.
"We start with the premise, which seems to be uncontroverted, that the United States owned both the land and water on its public domain, and had the right to dispose of the land and the water either together or separately. California Oregon Power Co. v. Beaver Portland Cement Co., *Page 278 295 U.S. 142, 145, 55 S. Ct. 725,79 L. Ed. 1356, 1364.
"It disposed of its land by patent, but left the disposal of the water to appropriation for beneficial use under local customs and laws. It did not, however, give the states blanket authority to dispose of or permit the use of the water. * * *
"None of these acts of Congress give the public generally any right to use the water for fishing or otherwise. The rights given are those of appropriation to some specific beneficial use — `irrigation, mining and manufacturing.' As is stated in California Oregon Power Co. v. Beaver Portland Cement Co., supra, `the only rule spoken of (in these acts of Congress) is that of appropriation.'
"We have then this situation in the case at bar: The United States owned both the land and the water. It has disposed of the land. It has authorized the acquisition of rights in the water by appropriation for specific beneficial purposes. It has not authorized the acquisition of rights by the public generally, and such right consequently can not exist."
We accept the statement of appellee that it did not contend that all waters on the grant not theretofore appropriated to some beneficial use became the property of appellee as assignee of the United States; nor that lands granted by a United States patent carried title to running water passing through them.
The statement in the majority opinion on rehearing, was in answer to the following statement in appellee's brief:
"It is, of course, well settled that the United States owned both the land and the waters on its public land, and had the right to dispose of land and water together or separately. * * *
"The Pablo Montoya Grant was, as above stated, a part of the public lands of the United States, and the same was confirmed and patented without any restrictions or qualifications whatever. The confirmation and the patent purport to vest in the confirmee the complete title to everything within the boundaries of the Grant as surveyed. No mention is made of any reservation of any right in the public to fish in or use the waters of any stream within the Grant. Existing legislation of Congress saved vested rights to the use of water acquired by appropriation in accordance with local customs, but nothing more."
Appellee then states as its conclusion on the question:
"* * * Our contention is that after the patent issued for the Pablo Montoya Grant, anyone had, and now has, the right to appropriate this water for any of the purposes specified in the Acts of Congress above referred to, but that after such patent, the water could not be used for any purposes not specified in the acts of Congress."
But a pertinent question is, What interest has appellee in the water or its use? *Page 279
Appellee, at least inferentially concedes, as indeed it must, that the United States patent to the Pablo Montoya Grant conveyed to its predecessor in title the land only, after the water had been severed therefrom. "As the owner of the public domain, the government possessed the power to dispose of land and water thereon together, or to dispose of them separately. * * * That Congress intended to establish the rule that for the future (after March 3rd 1877) the land should be patented separately; and that all nonnavigable waters thereon should be reserved for the use of the public under the laws of the states and territories named." California-Oregon Power Co. v. Beaver Portland Cement Co., 295 U.S. 142, 160, 55 S. Ct. 725, 731,79 L. Ed. 1356, and Ickes, Secretary v. Fox, 300 U.S. 82,57 S. Ct. 412, 81 L. Ed. 525, quoted from in our opinion on motion for rehearing.
Regarding the interest of the state in the public waters within its boundaries, it is said:
"Nothing we have said is meant to suggest that the act, as we construe it, has the effect of curtailing the power of the states affected to legislate in respect of waters and water rights as they deem wise in the public interest. What we hold is that following the act of 1877, if not before, all nonnavigable waters then a part of the public domain became publici juris, subject to the plenary control of the designated states, including those since created out of the territories named, with the right in each to determine for itself to what extent the rule of appropriation or the common-law rule in respect of riparian rights should obtain." California Oregon Power Co. v. Beaver Portland Cement Co., supra.
The claim heretofore made, and upon which the minority opinion rests, is that the appellee as the owner of the land, had certain riparian rights in the water, among them the right of fishery; and that such rights were subordinate only to the rights of individuals who had appropriated the water and used it beneficially. Whether this contention has been abandoned is not plain; but we will assume that the present contention, to-wit that the state has not a plenary control over public waters, but that its authority is limited to providing for appropriations for irrigation, mining and manufacturing purposes is in addition to its claim of riparian rights, or the common law right of fishery.
The question of the extent of state control over public waters has been so definitely settled by decisions of the Supreme Court of the United States, and considered in our opinion on motion for rehearing, that but slight reference need be made here. These waters are publici juris and the state's control of them is plenary; that is, complete; subject no doubt to governmental uses by the United States. California Oregon Power Co. v. Beaver Portland Cement Co., supra; Ickes v. Fox, supra; Sec. 2, Art. 16, N.M. Const.; Ch. 49 N.M.L. 1907. Mr. Justice Sadler in his dissenting opinion, states: *Page 280
"I make no argument that appropriation of waters to recreational purposes, such as fishing, boating and the like, may not be deemed a beneficial use and properly so — I have conceded that all along."
But he believes that such right should be exercised by the State through condemnation proceedings. If the use of water for establishing public fisheries is a public use, within the meaning of our Constitution and laws, as Mr. Justice Sadler concludes, then it may be taken and appropriated for such use without condemnation. Such use is in the same category as that of use for irrigation, mining and manufacturing; and it has never been suggested that the appropriation and diversion of water for these purposes, though destructive of fisheries, require condemnation proceedings before they can be exercised. If the state may use public waters to establish public fisheries, upon the theory that such use is a beneficial one, then the State's plenary power over public water is its authority therefor. The legislature has made ample provision for the public use of public waters for fishing, by Ch. 43, N.M.Sts. 1941, a comprehensive law authorizing the State Game Commission, (among other things) "to establish and * * * operate fish hatcheries for the purpose of stocking public waters of the state * * *"; all for the use and benefit of the public, to be enjoyed under the protection of state laws.
But upon what theory can the appellee object to the use of public water by the authorized public? It has not now, nor has it ever had, any right, title or interest in these waters. No water, water right, or the use of water, was conveyed to it by the United States. The water was reserved for the use of the public. California Oregon Power Co. v. Beaver Portland Cement Co., supra. Appellee has no more right to the use of the unappropriated water on the land grant than has any other person, except as the law against trespassing on private property favors it. The public waters of this state, by legislative authority, have been dedicated to the use of the public for fishing and recreation, and the Conchas lake is not an exception. We do not find that we erred in so holding.
The appellee asserts that "the majority opinion on the motion for rehearing misinterprets the finding of the district court as to the making of the Pablo Montoya Grant."
We may assume for the purposes of this case that appellee was entitled to show the lack of jurisdiction in the Mexican authorities to make the original grant, as it contends. But the United States conveyed no water, water right, or the right to use water, to its predecessor in title; and it is entirely immaterial whether the Mexican title was invalid.
Another question posed was fully considered and decided in our opinion on the first motion for rehearing, and we adhere to the views therein stated.
Amici Curiae have filed a brief in opposition to the claims of the state. The *Page 281 questions submitted therein were either not presented below or have been fully answered in one or more of the majority opinions. We adhere to our original views, particularly those stated in our opinion on rehearing. Such being the case, the second motion for rehearing will stand denied by operation of law. Flaska v. State, 51 N.M. 13, 177 P.2d 174.