1. The provisions of the corporation laws of the Territory of
New Mexico relating to the formation and rights of irrigation
companies are not invalid because they assume to dispose of
property of the United States without its consent. By the Act of
July 26, 1866, 14 Stat. 233; Rev.Stat. § 2339, and the Act of March
3, 1877, 19 Stat. 377, Congress recognized as respects the public
domain and so far as the United States is concerned, the validity
of the local customs, laws and decisions in respect to the
appropriation of water, and granted the right to appropriate such
amount of water as might be necessarily used for the purpose of
irrigation and reclamation of desert land, part of the public
domain, and as to the surplus, the right of the public to use the
same for irrigation, mining, and manufacturing purposes subject to
existing rights. The purpose of Congress to recognize the
legislation of territories as well as of states in respect to the
regulation of the use of public water is evidenced by the Act of
March 3, 1891, 26 Stat. 1095. The statute of New Mexico is not
inconsistent with the legislation of Congress on this subject.
2. The Act of March 3, 1877, is not to be construed as an
expression of Congress that the surplus public waters on the public
domain, and which are within the control of Congress or of a
legislative body created by it, must be directly appropriated by
the owners of lands upon which a beneficial use of the water is to
be made and that consequently a territorial legislature cannot
lawfully empower a corporation to become an intermediary for
furnishing water to irrigate the lands of third parties.
Page 188 U. S. 546
The question whether the appropriation of water interferes with
the rights of other appropriators below the mouth of a proposed new
irrigation canal cannot be raised by parties who are strangers to
such other appropriators not parties to the action.
This litigation was begun by the appellee, in the District Court
for the Second Judicial District of the Territory of New Mexico,
within and for the County of Bernalillo. In the bill of complaint,
equitable relief was sought against the now appellants. It was
alleged in substance that plaintiff, on December 31, 1897, became a
body corporate, pursuant to the provisions of an Act of the General
Assembly of the Territory of New Mexico approved February 24, 1887,
for the purpose of constructing a canal, ditch, and pipeline
between named points in the County of Bernalillo, in the Territory
of New Mexico; that, as preliminary to the construction of such
canal, ditch, and pipeline, a survey of lands along the proposed
route thereof was necessary, and such survey was authorized by law,
and that the defendants, asserting ownership of lands along such
proposed route, had forcibly prevented the employees of the
plaintiff from entering on said lands to make survey thereof. It
was prayed that temporarily, pending the suit, and perpetually by
the final decree, the defendants might be enjoined from further
interference with the making of the survey, and there was also a
prayer for general relief. In their answer, the defendants admitted
their interferences with the proposed survey as complained of in
the bill, but asserted their right to do so. Reiterating the
allegations of the answer, by cross-complaint, a perpetual
injunction was asked restraining entry by the plaintiff upon the
lands. An order was issued temporarily restraining the defendants
as prayed, and thereafter a demurrer to the answer and
cross-complaint of the defendant was filed and overruled. After
replication by the respective parties, the cause was transferred to
the District Court of the First Judicial District and for the
County of Santa Fe. In that court, trial was had and judgment was
entered in favor of the plaintiff perpetuating the preliminary
injunction and dismissing the cross-complaint of the
defendants.
Page 188 U. S. 547
The following findings of fact and conclusions of law were
embodied in the judgment:
"
Findings of Fact"
"I. That the plaintiff is a corporation and has complied with
the provisions of the laws of the Territory of New Mexico. It is
organized for the purpose of constructing a canal from a point on
the Rio Grande about twenty-eight miles above the City of
Albuquerque to the railroad bridge across said Rio Grande at
Isleta, the initial and terminal points of said canal being within
the County of Bernalillo."
"II. That the headgate of plaintiff's proposed canal is to be at
a point on the Rio Grande three eighths (3/8) of a mile below or
south of the Indian village of San Felipe, about twenty-eight miles
above the City of Albuquerque; that the ultimate terminus or point
of discharge into the river is at the railroad bridge near Isleta,
the entire length of the canal to be about thirty-five (35) miles.
The present proposed terminus is at the City of Albuquerque."
"III. That the engineer of the company was proceeding with a
survey of the line between Albuquerque and the headgate when
defendants interfered with and obstructed the said engineer in the
making of said survey."
"IV. That the capacity of the said proposed canal is two hundred
and ten (210) cubic feet of water per second."
"V. That there are at present thirteen ditches taking water from
the river between the proposed headgate of plaintiff's canal and
Albuquerque, and seven between Albuquerque and the Indian Town of
Isleta."
"VI. That the aggregate capacity of all the said old ditches is
four hundred and ninety-eight (498) cubic feet per second, and the
court finds that there has been a valid prior appropriation by the
owners of said old ditches of the said four hundred and
ninety-eight (498) feet per second of water."
"VII. That 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, but during a large
majority of the months of each of these years
Page 188 U. S. 548
there was a large amount of surplus water flowing past that
point, and that those years were the only years within ten or
twenty years in which the river was dry at or above
Albuquerque."
"VIII. That in a majority of the last ten years, there has been
surplus water flowing in the said river at the proposed headgate at
all times."
"IX. That the river became dry at Albuquerque about the last of
June, 1894, and remained so for twenty-two days, and also in June,
1896, for a number of days, the court being unable to find the
exact number or length of time from the evidence."
"X. That the months of June, July, August, and September are the
'dry season.'"
"XI. That the planting and growing season in the Rio Grande
valley begins in February and ends with October."
"XII. 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 that very
little, if any, of the water now appropriated is used for these
crops after June 15th, but the water is used for chili, corn,
alfalfa, and melons after that time, and for alfalfa as late as
October."
"XIII. That for all the months in most years, and for most of
the months in every year, there is a surplus of water flowing in
the Rio Grande over and above the amount appropriated by said old
ditches."
"XIV. The court finds that there is no evidence that plaintiff
relies on any source of water supply than the Rio Grande, or that
the proposed canal of plaintiff is expected or intended to receive
and distribute stored waters."
"XV. That the plaintiff is not the owner of any lands along the
line of its proposed canal or elsewhere."
"XVI. That there is no evidence that plaintiff has any contract
with or employment by any person who is the owner of lands
irrigable from said proposed canal for the conduct of water upon
any such lands, or that any owner of lands not now irrigated from
existing acequias, desires or intends to irrigate such lands from
plaintiff's canal when completed. "
Page 188 U. S. 549
"XVII. That the proposed canal of the plaintiff will cross and
recross the existing acequias of Bernalillo nine times within a
distance of one mile of its length."
"XVIII. That some of the defendants and some of their associates
are the owners of lands through which the plaintiff proposes to
construct its canal."
"
Conclusions of Law"
"I. That the plaintiff corporation is entitled to exercise the
power of eminent domain."
"II. That the plaintiff, by the filing of its articles of
incorporation with the Secretary of the Territory of New Mexico,
and complying with the provisions of the act under which it is
incorporated, has acquired a right to construct its canals and
reservoirs to divert through its proposed canal surplus and
unappropriated waters flowing in the Rio Grande, and that such a
right of eminent domain does not depend upon the ownership of lands
by plaintiff or the employment of plaintiff prior to the
construction of its canal by owners of lands to carry waters for
such owners."
"III. That the defendants, at the time of the filing of the
complaint herein, unlawfully obstructed the plaintiff in the
exercise of powers lawfully conferred upon it by the act under
which it is incorporated."
"IV. That the defendants do not and cannot in this action
lawfully represent the rights of such persons claiming a right to
the use of the waters of the Rio Grande, by prior appropriation,
when the appropriation of such persons was effected at a point
below the mouth of the proposed canal of plaintiff."
"V. That the defendants cannot lawfully set up in this action
any rights secured to them and their associates or their
predecessors in title by the Treaty of Guadalupe Hidalgo, and that
the allegations of paragraph ten of the answer of defendants with
reference to the treaty of defendants are immaterial."
"VI. That the plaintiff is entitled to the relief demanded in
the complaint, including a perpetual injunction, as prayed
for."
"VII. That defendants are not entitled to any part of the
Page 188 U. S. 550
relief demanded in their cross-complaint, but the same should be
dismissed."
A motion to set aside the findings and judgment and for a new
trial having been overruled, the cause was taken to the supreme
court of the territory. That court affirmed the judgment of the
trial court and adopted as its own the findings of fact made by the
judge of the district court. Thereupon this appeal was allowed.
MR. JUSTICE WHITE, after making the foregoing statement,
delivered the opinion of the Court.
The pertinent portions of the Territorial Act of February 24,
1887, under which the plaintiff below was incorporated, are noted
in the margin.
*
Page 188 U. S. 551
It will be seen that the act authorized the formation of
corporations for the purpose of constructing and maintaining
reservoirs and canals, or ditches and pipelines, and that two
purposes
Page 188 U. S. 552
were to be subserved by the formation of such companies (1) the
supplying of water for irrigation, mining, manufacturing, domestic,
and other public uses, including cities and towns, and (2) the
colonization and the improvement of lands in connection therewith.
The articles of association of the appellee set out the second of
the aforesaid objects as being the purpose for which the company
was formed. The organization of the company in conformity to the
requirements of the statute is not questioned, and the existence of
surplus water over and above the needs of prior appropriators of
water at the point where it was proposed to divert the waters of
the Rio Grande for the proposed canal is a fact found by the trial
court and not disputed either in the supreme court of the territory
or in the argument made at bar.
The contentions urged upon our notice substantially resolve
themselves into two general propositions: first, that the
territorial act was invalid because it assumed to dispose of
property of the United States without its consent; and, second,
that said statute, insofar at least as it authorized the formation
of corporations of the character of the complainant, was
inconsistent with the legislation of Congress, and therefore void.
These propositions naturally admit of consideration together.
The argument in support of the first proposition proceeds upon
the hypothesis that the waters affected by the statute are public
waters, the property not of the territory or of private
individuals, but of the United States; that, by the statute,
private individuals, or corporations, for their mere pecuniary
profit, are permitted to acquire the unappropriated portion of such
public waters, in violation of the right of the United States to
control and dispose of its own property wheresoever situated.
Assuming that the appellants are entitled to urge the objection
referred to, we think, in view of the legislation of Congress on
the subject of the appropriation of water on the public domain,
Page 188 U. S. 553
particularly referred to in the opinion of this Court in
United States v. Rio Grande Irrigation Co., 174 U.
S. 690,
174 U. S.
704-706, the objection is devoid of merit. As stated in
the opinion just referred to, by the Act of July 26, 1866, 14 Stat.
253, c. 262, sec. 9, Rev.Stat. sec. 2339, Congress recognized, as
respects the public domain, "so far as the United States are
concerned, the validity of the local customs, laws, and decisions
of courts in respect to the appropriation of water." By the Act of
March 3, 1877, 19 Stat. 377, c. 107, the right to appropriate such
an amount of water as might be necessarily used for the purpose of
irrigation and reclamation of desert land, part of the public
domain, was granted, and it was further provided that
"all surplus water over and above such actual appropriation and
use, together with the water of all lakes, rivers, and other
sources of water supply upon the public lands and not navigable,
shall remain and be held free for the appropriation and use of the
public for irrigation, mining, and manufacturing purposes, subject
to existing rights."
That the purpose of Congress was to recognize as well the
legislation of a territory as of a state with respect to the
regulation of the use of public waters, is evidenced by the Act of
March 3, 1891, 26 Stat. 1095, c. 561. By the eighteenth section of
the act of 1891, it was provided as follows:
"SEC. 18. 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 shall
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 fifty 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
Page 188 U. S. 554
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 herein granted
shall not be construed to interfere with the control of water for
irrigation and other purposes under authority of the respective
states or territories."
It may be observed that the purport of the previous acts is
reflexively illustrated by the Act of June 17, 1902, 32 Stat. 388.
That act appropriated the receipts from the sale and disposal of
the public lands in certain states and territories to the
construction of irrigation works for the reclamation of arid lands.
The eighth section of the act is as follows:
"SEC. 8. That nothing in this act shall be construed as
affecting or intended to affect or to in any way interfere with the
laws of any state or territory relating to the control,
appropriation, use, or distribution of water used in irrigation, or
any vested right acquired thereunder, and the Secretary of the
Interior, in carrying out the provisions of this act, shall proceed
in conformity with such laws, and nothing herein shall in any way
affect any right of any state or federal government or of any
landowner, appropriator, or user of water in, to, or from any
interstate stream or the waters thereof:
Provided, That
the right to the use of water acquired under the provisions of this
act shall be appurtenant to the land irrigated, and beneficial use
shall be the basis, the measure, and the limit of the right."
It would necessarily seem to follow from the legislation
referred to that the statute which we have been considering is not
inconsistent with the legislation of Congress on the subject of the
disposal of waters flowing over the public domain of the United
States. Of course, as held in the
Rio Grande case, p.
174 U. S. 703,
even a state, as respects streams within its borders, in the
absence of specific authority from Congress,
"cannot, by its legislation, destroy the right of the United
States, as the owner of lands bordering on a stream, to the
continued flow of its waters, so far at least as may be necessary
for the beneficial uses of the government property,"
and the power of a state over navigable streams and their
tributaries is further limited by the
Page 188 U. S. 555
superior power of the general government to secure the
uninterrupted navigability of all navigable streams within the
limits of the United States. Necessarily, these limitations are
equally applicable in restraint of the legislative branch of a
territorial government, controlled, as is such body, by Congress.
If we assume that a restriction on the power of a territory similar
to that first stated prevails in favor of private owners of lands
along a running stream, the act in question clearly is not
violative of such rights, for the same does not attempt to
authorize an infringement of them. The water which it is provided
may be appropriated is "surplus" water, of any stream, lake, or
spring, and it is specifically provided in subdivision 4 of sec. 17
of the act "[t]hat 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." So also, in section 25, it is
declared
"that no incorporation of any company or companies shall
interfere with the water rights of any individual or company
acquired prior to the passage of this act."
The finding of the court below that "surplus" water existed
negates the idea that any legitimate appropriation of water which
can be made by the appellee can in anywise violate the rights of
others.
We perceive no merit in the contention that the proviso in the
Desert Land Act of March 3, 1877, declaring that surplus water on
the public domain shall remain and be held free for the
appropriation and use of the public for irrigation, mining, and
manufacturing purposes, subject to existing rights, is an
expression of the will of Congress that all public waters within
its control or the control of a legislative body of its creation
must be
directly appropriated by the owners of land upon
which a beneficial use of water is to be made, and that, in
consequence, a territorial legislature cannot lawfully empower a
corporation such as the appellee to become an intermediary for
furnishing water to irrigate the lands of third parties. As all
owners of land within the service capacity of appellee's canal will
possess the right to use the water which may be diverted into such
canal, the use is clearly public,
Fallbrook Irrigation District
v. Bradley, 164 U. S. 163,
and appellee is therefore a public
Page 188 U. S. 556
agency, whose right to divert water and whose continued
existence is dependent upon the application by it within a
reasonable time of such diverted water to a beneficial use.
Irrigation corporations generally are recognized in the legislation
of Congress, and the rights conferred are not limited to such
corporations as are mere combinations of owners of irrigable
land.
It is conceded on behalf of appellant that, by the laws of
Mexico in force when the Territory of New Mexico was ceded to the
United States, the use of the waters of both navigable and
unnavigable streams was not limited to riparian lands, but extended
as well to lands which did not lie upon the banks of the rivers,
and that such use was subject to be regulated and controlled by the
public authorities. It is, however, contended that the effect of
the statute under consideration is to free the waters from public
control and to transfer them to private control, a position which
is manifestly unsound, in view of the public nature of such
corporations and their liability to regulation by the legislative
authority which has in effect created them. The concession above
referred to and the implication arising from the statement in the
answer and cross-bill to the purport that the title of the
defendants to their lands was derived, mediately or immediately,
from those who held title thereto at the time of the acquisition of
New Mexico by the United States, coupled with the finding by the
trial court that, after making all due allowances for valid
appropriations of water within the portion of the Rio Grande
directly affected by the canal of the appellee, there yet existed a
surplus of unappropriated water, warranted the trial court in
treating as immaterial the claim asserted in the tenth paragraph of
the answer of the defendants to the effect that, by the treaty of
cession of New Mexico to the United States, the defendants and
their associates acquired the right of user of all the waters of
the Rio Grande adjacent to their lands. Neither do we think that
the trial court was called upon at the instance of the defendants,
entire strangers in every aspect to other appropriators, to inquire
into and pass upon the question whether appropriators of water
below the mouth of the proposed canal of appellee would be injured
by the construction of the canal. The rights of such persons
Page 188 U. S. 557
will not, of course, be injuriously affected by the decree in
this cause, and
non constat but that they may yet
intervene for their own protection if they deem that the
construction of the canal will be an invasion of their rights, or
that they may be willing to forego objection to the construction of
the canal.
On the whole, we are of opinion that the decree of the Supreme
Court of the Territory of New Mexico was correct, and it is
therefore
Affirmed.
MR. JUSTICE McKENNA dissents.
* Corporation Laws of New Mexico, 1897.
"§ 468. Any five persons who may desire to form a company for
the purpose of constructing and maintaining reservoirs and canals,
or ditches and pipelines, for the purpose of supplying water for
the purpose of irrigation, mining, manufacturing, domestic, and
other public uses, including cities and towns, and for the purpose
of colonization and the 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 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."
"§ 469. Such articles shall set forth: First. The full names of
the incorporators and the corporate name of such company."
"Second. The purpose or purposes for which such company is
formed, and, if the object be to construct reservoirs and canals,
or ditches and pipelines for any of the purposes herein specified,
the beginning point and terminus of the main line of such canals
and ditches and pipelines, and the general course, direction, and
length thereof shall be stated."
"Third. The amount of the capital stock and the number of shares
as definitely as practicable."
"Fourth. The term of existence of the company, which shall not
exceed fifty years."
"Fifth. The number of directors, and the names of those who
shall manage the business of the company for the first year."
"Sixth. The name of the city or town and county in which the
principal place of business of the company is to be located."
"
* * * *"
"§ 484. Corporations formed under this act for the purpose of
furnishing and supplying water for any of the purposes mentioned in
section four hundred and sixty-eight shall have, in addition to the
powers hereinbefore mentioned, rights as follows:"
"First. To cause such examination and surveys for their proposed
reservoirs, canals, pipelines, 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."
"Second. 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."
"Third. To construct their canals, pipelines, or ditches upon or
along any stream of water."
"Fourth. 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 four hundred and
sixty-eight of this act, but such corporations shall have no right
to interfere with the rights of, or appropriate the property of,
any persons 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."
"Fifth. To furnish water for the purposes mentioned in section
four hundred and sixty-eight at such rates as the bylaws may
prescribe; but equal rates shall be conceded to each class of
consumers."
"Sixth. 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."
"
* * * *"
"§ 492. That no incorporation of any company or companies to
supply water for the purposes of irrigation and other purposes
shall have any right to divert the usual and natural flow of water
of any stream which by law of 1854 has 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 it be with
the unanimous consent of all and every person holding agricultural
and cultivated lands under such stream or public acequia, and to be
irrigated by the water furnished by said stream or public acequia,
and that no incorporation of any company or companies shall
interfere with the water rights of any individual or company
acquired prior to the passage of this act."
