A question as to the relief sought by plaintiff in its amended complaint prompts me to explain my position on the subject of limitations. I agree with the opinion in its treatment and disposition of all other questions. I do not disagree with it on the question of limitations if, by its amended complaint, the plaintiff seeks only the damages recoverable under 1929 Comp. St. § 43-301, viz., such as are permanent in character, as I seriously doubt.
In its original complaint filed January 12, 1935, the invasion of its water rights was set back six years beginning with the cropping season of 1929. In that year and succeeding years, as alleged, only inadequate irrigation for small acreages was had until 1934, when none at all occurred. And so, following this historical treatment of the deprivations, in paragraph 17 of the original complaint, plaintiff alleges that because of said conditions the defendant New Mexico Power Company has damaged *Page 323 and impaired plaintiff's water rights on said lands, "and that the damage and impairment to the said complainant's lands and water rights as above set forth are now total and permanent." (Italics mine.) Damages in the sum of $30,000 are laid.
Thereafter, the trial court sustained the joint demurrer of New Mexico Power Company and city of Santa Fe to the complaint as thus drawn. One ground of the demurrer was that plaintiff's action was barred by the four-year statute of limitations. Whereupon, under leave, the plaintiff amended his complaint and by stipulation the previous demurrer stood and was considered directed to the complaint as thus amended. So treated, it was again sustained. The amended complaint was filed November 22, 1935. In its historical statement of deprivations caused by defendants, the years 1929 and 1930 were dropped and, its filing extending beyond the current cropping season, the year 1935 was added.
It seems appropriate at this point to set out in full paragraph 17 of the complaint as amended. It reads:
"The complainant further shows that because of the conditions outlined above and because of the diversion of water of the said New Mexico Power Company from said creek into its said reservoirs and from its reservoirs through its system to those persons who shall pay it for the same, the said New Mexico Power Company has damaged and impaired for the years set forth the said complainant's water rights with respect to said lands. That saiddamage and impairment are continuing wrongs and injuries,impairing and damaging from year to year and from season toseason, the use of said lands for irrigation purposes to which the said complainant has used said lands and intends to use themand that the crops and produce of the said lands of saidcomplainant for the years set forth are damaged to the extent andin the manner set forth in the preceding paragraph." (Italics mine.)
While the allegation of "damage and impairment" of plaintiff's water rights persists, it is said to be only "for the years set forth" and such damage and impairment are characterized by plaintiff itself as "continuing wrongs and injuries," recurring "from year to year and season to season"; damaging the "crops and produce" of said lands to the extent and in the manner set forth. This sounds very much like the assertion of a claim for corp damage resulting from seasonal trespasses by defendants. If so, I think there can be no doubt that it is governed by the four-year statute of limitations. Eminent domain proceedings could not have been resorted to in the first instance to acquire the right so to trespass. Cf. Patterson v. Horsefly Irrigation Dist. (Or.)69 P.2d 282, 283, 289. Nor may a statute (1929 Comp. § 43-301) authorizing recovery of damages, after the event, from any person, firm, or corporation empowered under the Constitution and laws of this state to exercise the right of eminent domain, who has "taken or damaged" private *Page 324 property for public use, be made the basis of a recovery therefor.
This brings me to the point of disagreement with the majority, if I correctly understand their position. In so far as the opinion holds the ten-year statute of limitations applicable to damages claimed for a permanent taking or impairment of plaintiff's water rights, I think it is sound. If it embraces a holding, agreeable to the views of the Justices signing it, as I understand their position, that plaintiff can recover under section 43-301 damages of the kind its amended complaint seems to assert, recurring and seasonal in character, over a period of ten years prior to filing of the amended complaint, then I disagree with such a construction of the statute mentioned.
My view of said statute is that under it only such damages may be recovered as could have been awarded in eminent domain proceedings had they been resorted to in the first instance. This seems obvious from the fact that recovery must be against, and is confined to, a "person, firm or corporation authorized by the constitution or laws of this state to exercise the right of eminent domain who has heretofore taken or damaged * * * private property for public use without making just compensation therefor." The statute uses the very language "taken or damaged" found in the constitutional provision, article 2, § 20. As used in the Constitution and eminent domain statutes, no one would challenge the proposition that only permanent injury may be compensated in such proceedings. See 2 Nichols on Eminent Domain (2d Ed.) § 312; 1 Lewis Eminent Domain (3d Ed.) § 363; Knowles v. New Sweden Irr. Dist., 16 Idaho, 217, 101 P. 81, 85; Stockdale v. Rio Grande Western Ry. Co., 28 Utah, 201, 77 P. 849; City of Lawton v. Johnstone, 92 Okla. 280, 219 P. 414. Do the words "taken or damaged" mean one thing in the Constitution and something else in a statute supplementary thereto? I do not think so.
The last-mentioned case, City of Lawton v. Johnstone, brings out clearly the distinction between a cause of action for permanent damage to realty and successive actions to recover damages for continuing and recurring trespasses in relation thereto. It is perhaps more accurate to speak of it as permanent "injury" rather than permanent "damage." Eminent domain proceedings provide recovery for permanent injury only. And the damages awarded therefor, once paid, transfer to the defendant title to the real estate, if there has been a complete taking, or some right or interest permanent in character in relation thereto, if defendant's title and possession remain undisturbed, leaving the property with a depreciated value thereafter. Cf. Knowles v. New Sweden Irr. Dist., supra. But sufficient proof that only permanent injury may be compensated in eminent domain proceedings (and as I insist under a statute such as ours, section 43-301, supplementing such proceedings) is furnished by the measure of damages applicable to the award of compensation, namely, the decrease in the market value of plaintiff's *Page 325 land. 2 Nichols on Eminent Domain (2d Ed.) § 327.
The point to these observations is this: If the amended complaint is what it appears to be, an action for continuing trespass, seasonal in character, the plaintiff may not recover thereunder any damages accruing more than four years next before filing its amended complaint. It is then not an action under section 43-301 at all, but an ordinary action in damages for trespass. And sections 43-301, 43-302, may not be looked to for the purpose of supplying a ten-year period of limitation, when the damages sought are not of the kind contemplated by section 43-301, compensation for permanent injury to real estate.
As the amended complaint now stands, it seems nothing more than an ordinary action to recover damages for recurrent trespasses. So viewed, plaintiff should be limited at the trial to proof of such damage as occurred within four years prior to filing of the amended complaint. Counsel for defendants assert without contradiction or challenge on the part of plaintiff's counsel that at the trial "it was expressly conceded * * * that it was the four-year statute that is involved." The amended complaint reasonably bears an interpretation supporting such an assumption. The trial court having so interpreted it, and that interpretation being reasonable, we should adopt same here. Summerford v. Board of Commissioners, 35 N.M. 374, 298 P. 410. I think the amended complaint states a cause of action and is sufficient to withstand the demurrers interposed against it. Hence, I agree with the prevailing opinion in remanding the cause to the district court with directions to overrule the demurrers.