1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

2 Opinion Number: ___________

3 Filing Date: August 22, 2016 

4 NO. 34,588

5 DAVID CHRISTOPHER and JULIA M. CHRISTOPHER, 

6 husband and wife,

7 Plaintiffs/Counter-Defendants-Appellees,

8 v.

9 KENNETH H. OWENS, 

10 Defendant/Cross-Defendant-Appellee, 

11 and

12 SONORA CORPORATION, a New Mexico Corporation, 

13 Defendant/Counterclaimant/Cross-Claimant-Appellant.

14 APPEAL FROM THE DISTRICT COURT OF OTERO COUNTY

15 James Waylon Counts, District Judge

16 Hennighausen & Olsen, L.L.P.

17 A. J. Olsen 

18 Alvin F. Jones

19 Olivia R. Mitchell

20 Roswell, NM

21 for Appellees David & Julia M. Christopher
1 Sanders, Bruin, Coll & Worley, P.A.

2 Kelly Mack Cassels

3 Roswell, NM

4 for Appellee Kenneth H. Owens

5 J. Robert Beauvais, P.A.

6 J. Robert Beauvais

7 Ruidoso, NM

8 for Appellant
1 OPINION

2 BUSTAMANTE, Judge.

3 {1} This case—which may turn out to be much ado about nothing—presents an

4 object lesson in how not to structure the purchase and sale of water interests in New

5 Mexico. The district court ruled that Appellee Kenneth Owens did not—indeed, could

6 not—reserve any cognizable water interest when he sold a ranch to Appellees David

7 and Julia Christopher (Christophers). The district court also held that Owens did not

8 provide any actionable warranty covenants when he deeded his interest to Appellant

9 Sonora Corporation. Only Sonora appeals. We reverse.

10 FACTUAL AND PROCEDURAL BACKGROUND

11 {2} The historical facts giving rise to this case are simple and undisputed. In 1998

12 Owens sold his “High Nogal Ranch” to the Christophers by warranty deed. The ranch

13 included a water source commonly known as the Maxwell Springs. Owens was

14 apparently initially reluctant to include the land surrounding the Maxwell Springs in

15 the sale, but eventually agreed to include the property in exchange for an additional

16 $100,000 over the sale price and an agreement that he could retain an interest in the

17 water produced from it. The warranty deed conveying the real estate includes the

18 following language:
2

1 Reserving, however, a right of way over the existing roads from

2 Highway 54 to the Apache Ranch. 

3 Together with a full three[-]inch pipe line of water from Maxwell

4 Springs to the High Nogal Ranch house through the existing three[-]

5 inch pipe line. Water flow will be 24 hours a day 7 days a week. The

6 balance of water produced from Maxwell Springs now existing or as

7 developed in the future will be owned [fifty percent] each by David

8 Christopher and Kenneth H. Owens. 

9 {3} Owens then sold his fifty percent interest to Appellant Sonora in 2002 using

10 a New Mexico form real estate contract. The real estate being conveyed was

11 described as follows:

12 All the Grantor’s right, title and interest in and to the reservation

13 to him of water and rights thereto from the Maxwell Springs located on

14 the High Nogal Ranch contained in that certain [w]arranty [d]eed dated

15 May 8, 1998[,] and filed for record on May 15, 1998[,] in Book 889 at

16 Page 43 of the records of Otero County, New Mexico, by and between

17 the Grantor and David Christopher and Julia M. Christopher, his wife,

18 as Grantees. The division of water from said Maxwell Springs is stated

19 therein as follows:

20 “Together with a full three[-]inch pipe line of water from Maxwell

21 Springs to the High Nogal Ranch House through the existing three[-]

22 inch pipe line. Water [f]low will be 24 hours a day 7 days a week. The

23 [b]alance of water produced from Maxwell Springs now existing or as

24 developed in the future will be owned [fifty percent] each by David

25 Christopher and Kenneth H. Owens.”

26 This conveyance is intended to not impair any rights granted to the

27 Christophers, but includes all right, title and interest in said water from

28 the Maxwell Springs retained by Kenneth H. Owens in said warranty

29 deed. 
3

1 The warranty deed accompanying the real estate contract repeated this legal

2 description and, in accord with the statutory deed form, concluded “with warranty

3 covenants.” For reasons not important to our analysis, the real estate contract was

4 later converted to a note and mortgage. As a result of the conversion, the deed was

5 recorded in February 2009. 

6 {4} The difficulties between the parties arose from their efforts to develop and

7 market water from the Maxwell Springs. In January 2003 the Christophers filed an

8 “Application for Permit to Appropriate” water from the Maxwell Springs with the

9 New Mexico State Engineer. The record does not reveal what the current status of the

10 application is, but it is not disputed that the City of Alamogordo (the City) filed an

11 objection to the Christophers’ application with the State Engineer. In January 2007

12 the Christophers and the City settled their differences by entering into an agreement

13 whereby they would not interfere with each other’s attempts to establish water

14 appropriation rights. In addition, the City agreed to purchase “up to the permitted

15 amount of Maxwell Spring[s] water” subject to certain conditions. The record does

16 not reveal whether the Christophers have received a permit or whether this agreement

17 has been put to actual effect as yet. 

18 {5} On or about July 2, 2007, Owens filed his own “Application for Permit to

19 Appropriate” water from the Maxwell Springs. Given that Owens had sold his interest
4

1 in the Maxwell Springs water to Sonora some five years earlier, it is not clear why

2 Owens filed the application. The record below provides no clarity on the matter. In

3 any event, Owens’ application and the recording of the Owens/Sonora warranty deed

4 apparently prompted the filing of this action. 

5 {6} In March 2009 the Christophers filed a complaint naming only Owens as a

6 defendant. Within three weeks they filed an amended complaint naming Sonora as an

7 additional defendant. The substantive allegations ofthe complaints are the same. The

8 complaints sought a declaration that Owens did not own an interest in the water from

9 the Maxwell Springs and that his attempt to reserve an interest in the water was a

10 legal nullity. The complaints also asserted that since Owens owned no legally

11 cognizable interest in the waters of the Maxwell Springs, he had conveyed nothing

12 to Sonora. And, thus Sonora had no basis on which it could seek to appropriate water

13 from the Maxwell Springs either. The complaints also asserted claims of slander of

14 title, civil conspiracy, and tortious interference with the contractual relations between

15 the Christophers and the City.

16 {7} Initially represented by the same counsel, Owens and Sonora filed a joint

17 answer, including a counterclaim for declaratory judgment in their favor as to the

18 legal “effect of the reservation contained in the Owens-Christopher deed.” 
5

1 {8} After an initial discovery period, the parties filed motions for summary

2 judgment. Relying on general water law principles, the Christophers argued that

3 Owens never had a recognized water right in the Maxwell Springs water because he

4 did not do anything required by New Mexico law while he owned the ranch to have

5 such a right acknowledged and approved by the State Engineer. The Christophers also

6 argued that he could not legally reserve any interest in the Maxwell Springs water

7 because of the inherently speculative nature of such an interest. And, the Christophers

8 argued, Owens’ simple ownership of the land over the Maxwell Springs did not by

9 itself create an ownership interest in the water located beneath the land. Hydro Res.

10 Corp. v. Gray, 2007-NMSC-061, ¶ 17, 143 N.M. 142, 173 P.3d 749 (noting that “a

11 water right is not an automatic stick in the bundle of rights a landowner receives upon

12 purchasing even a fee interest in land” (internal quotation marks and citation

13 omitted)).

14 {9} Still represented at the time by the same attorney, Owens’ and Sonora’s motion

15 for summary judgment took an entirely different tack. Their argument was that the

16 Owens/Christophers deed created a “joint relationship in which they would each own

17 an undivided [fifty percent] interest in the present or future water to be derived from

18 Maxwell Spring[s].” Carrying the thought further, Owens and Sonora argued that

19 through the deed to the Christophers, Owens and the Christophers “agreed to become
6

1 joint developers as to the excess water derived and to be derived from Maxwell

2 Spring[s].” Owens and Sonora thus attempted to frame the issue as a matter of

3 contract between the parties. 

4 {10} The district court heard arguments on the two motions at the same time. Over

5 two years later the district court entered a “Minute Order” granting the Christophers’

6 motion and declaring that Owens and Sonora “have no rights to any water rights

7 arising out of the Maxwell Springs.” The district court also denied Owens’ and

8 Sonora’s motion for summary judgment. The district court certified its order for

9 interlocutory appeal, but this Court refused to accept the appeal. 

10 {11} At this point the parties’ tactics changed. The attorney who had represented

11 both Owens and Sonora withdrew from the case and was replaced by separate counsel

12 for the two defendants. Sonora promptly sought leave to supplement its answer and

13 add a cross-claim against Owens. The cross-claim asserted that Owens was in breach

14 of his warranty obligations under the Owens/Sonora deed to properly convey title and

15 to defend the title conveyed. 

16 {12} As before, this phase of the litigation was conducted by way of competing

17 motions for summary judgment. Sonora filed its motion first, relying on the district

18 court’s ruling that Owens had no ownership in the Maxwell Springs to argue that

19 Owens necessarily breached the warranty covenants of the deed as defined in NMSA
7

1 1978, Section 47-1-37 (1947). Owens filed a lengthy response, arguing that the

2 warranty covenant was of no effect given the manner in which the property being

3 conveyed was described in the deed. Sonora filed a second motion for summary

4 judgment against Owens arguing a breach of contract theory that relied on the real

5 estate contract the parties entered into in 2002. Owens’ response relied on the theory

6 of merger to argue that the real estate contract was no longer in effect or even relevant

7 to the transaction. 

8 {13} The district court agreed with Owens’ arguments and dismissed Sonora’s cross9 claim in two orders—a “Minute Order” filed in December 2013 and a more formal

10 judgment entered in March 2015. 

11 {14} Interestingly, in August 2014 Owens filed a disclaimer wherein he disclaimed

12 “any interest in the water rights which are the subject of this action.” And, as a matter

13 of historical note, the Christophers sold the High Nogal Ranch in February 2007

14 reserving in themselves “water rights for commercial, domestic, municipal, industrial,

15 and subdivision purposes from Maxwell Springs per Grantors’ pending application

16 No. SP-4896 on file with the Office of the New Mexico State Engineer.” 

17 ANALYSIS

18 {15} The odd circumstances in this case present three issues: Did Owens reserve any

19 cognizable interest in the water of the Maxwell Springs? If he did not, did he breach
8

1 any warranty covenants when his deed failed to convey to Sonora any interest in the

2 waters of the Maxwell Springs? Did he breach any contractual obligations when the

3 deed he delivered to Sonora failed to convey any interest in the Maxwell Springs? We

4 deal with each issue in turn. 

5 A. Owens Reserved an Interest in the Maxwell Springs Waters Rights

6 {16} We conclude that Owens did reserve a cognizable interest in the water of the

7 Maxwell Springs that he could enforce as to his buyers, the Christophers. We also

8 conclude that Owens could sell and assign his interest to Sonora.

9 {17} Summary judgment is proper where there are no genuine issues of material fact

10 and the movant is entitled to judgment as a matter of law. Self v. United Parcel Serv.,

11 Inc., 1998-NMSC-046, ¶ 6, 126 N.M. 396, 970 P.2d 582. Our review is de novo. Id.

12 {18} Unlike most cases in which the parties argue about the existence of material

13 questions of fact based on a plethora of evidence in the record, this matter is marked

14 by the paucity of its record. For example, the deed conveying the High Nogal Ranch

15 from Owens to the Christophers is the only document executed by them

16 memorializing the sale. There are no affidavits in the record from the parties

17 describing what they thought they were buying and selling. The Christophers’

18 deposition testimony in the record does not reveal any questions and answers

19 concerning what they thought the reservation language meant. Owens’ deposition
9

1 testimony does include his view of what he owned in the Maxwell Springs. Owens

2 asserted in his deposition that he had not sold water rights. Rather, in his view, he

3 simply sold “half the spring[s]” as an asset that he owned as part of the ranch. He saw

4 it as an asset that he could sell or not. Over coffee with David Christopher, Owens

5 agreed to sell the land surrounding the Maxwell Springs if he could keep a fifty

6 percent interest in the water that might be developed from it. 

7 {19} In short, the record is essentially devoid of evidence concerning the parties’

8 construction of the deed. Given the state of the record we are left to “interpret the

9 intention [of the parties] from the language of the instrument itself.” Atl. Ref. Co. v.

10 Beach, 1968-NMSC-003, ¶ 8, 78 N.M. 634, 436 P.2d 107. Thus, the inquiry as to the

11 meaning and effect of the “reserving” language in the deed presents a question of law.

12 Our review again is de novo. Papatheofanis v. Allen, 2009-NMCA-084, ¶ 8, 146

13 N.M. 840, 215 P.3d 778.

14 {20} Interestingly, the parties do not agree on which body of law should be applied.

15 The Christophers argue that New Mexico’sstatutory and regulatory water law regime

16 overrides all other considerations, and under that law Owens did not own any water

17 rights that he could convey or retain. From the Christophers’ standpoint the only

18 relevant undisputed facts are that Owens never did anything before he sold the ranch

19 to perfect a water right as such. He never filed for a permit to appropriate water or a
10

1 declaration of ownership of water in connection with the Maxwell Springs with the

2 State Engineer. In fact he had no dealings with the State Engineer while he owned the

3 ranch. And he did not put the water from the Maxwell Springs to beneficial use for

4 anything other than limited domestic use and whatever “irrigation” occurred

5 naturally. 

6 {21} Owens’ and Sonora’s position below relied on contract principles. They

7 asserted that the deed reservation reflected an intent to create a joint effort in which

8 the Christophers and Owens would work together to develop and market the waters

9 of the Maxwell Springs. On appeal, Sonora argues that the deed was sufficient to

10 reserve—as against theChristophers—one-half of the pre-1907 rights asserted by the

11 Christophers in the Application for Permit to Appropriate they filed with the State

12 Engineer. 

13 {22} The district court apparently agreed with the Christophers’ theory of the case,

14 since it ruled that Owens and Sonora “have no rights to any water rights arising out

15 of the Maxwell Springs.” We disagree.

16 {23} We begin by reminding ourselves—and the parties—that the case does not

17 involve a claim to “water rights” as against the world. Rather, the issue to resolve is

18 what the Owens/Christophers deed means as between the parties to it. The concepts

19 the Christophers rely on are thus largely irrelevant to this case because they are
15 We recognize that issues can arise with regard to the unintended conveyance 1

16 of unsevered appurtenant water rights. See Turner v. Bassett, 2005-NMSC-009, ¶ 24,

17 137 N.M. 381, 111 P.3d 701 (recognizing a presumption that the issuance of a permit

18 by the State Engineer allowing recognized irrigation water rights to be shifted to other

19 users works as severance of those water rights from the land). No one here argues that

20 there were any permitted, licensed, orrecognized water rights appurtenant to the High

21 Nogal Ranch when it was sold.

11

1 designed to order the ownership and use of water in a larger public arena. Water is

2 a public and scarce resource. Competing claims against it must be known, weighed,

3 tested, and balanced. The competition for recognition of permitted, licensed, and

4 recognized “water rights” in a scarce public good—with as early a priority date as

5 possible—is what drives the need for the statutory and regulatory process Owens

6 admits he never followed.

7 {24} But the regulatory process of recognizing and prioritizing water rights is not

8 applicable to the issues that may arise as between a buyer and seller and how they

9 choose to structure a transaction between themselves. The Christophers do not assert 1

10 that they thought they were buying a recognized, licensed, and permitted water right.

11 Owens does not assert that he was selling and reserving a recognized, licensed, and

12 permitted water right. In fact, so far as the record here is concerned, there is still no

13 recognized, licensed, and permitted water right founded on the Maxwell Springs.

14 What, then, is the most likely interpretation of what the deed means? The parties
12

1 obviously thought they were buying, selling, and reserving something—with that

2 something valued by them at $100,000.

3 {25} It is a given that Owens did not own a recognized “water right” in the sense

4 that term is normally used in New Mexico. He owned land that included water

5 sources, specifically the Maxwell Springs. As the landowner he had the inchoate right

6 to pursue the development, establishment, and perfection of water rights for the

7 waters of the Maxwell Springs. The Christophers received no more than Owens had:

8 a right to—or opportunity to—pursue the development, establishment, and perfection

9 of water rights. They took advantage of that opportunity when they started their

10 proceedings with the State Engineer. 

11 {26} We fail to see why the parties could not agree to split or share that inchoate

12 right to pursue “water rights.” To the contrary, we conclude that the parties could

13 agree to split the opportunity as they saw fit and that agreement would be enforceable

14 as between them. The interpretation of the deed that best fits the facts as we know

15 them is that Owens conveyed the realty within which the Maxwell Springs lay, but

16 kept—or reserved—the right to pursue perfection of a water right equal to fifty

17 percent of whatever water might be provable and available for application to

18 beneficial use. On the Christophers’ side of the ledger, they received the real estate

19 surrounding the Maxwell Springs, which included the right to pursue perfection of
13

1 a water right to an undivided half of the water available from the Maxwell Springs.

2 The deed does no more than allocate the opportunity evenly between them. 

3 {27} The Christophers cite no authority prohibiting two parties from entering into

4 an arrangement such as we describe. As they note, except for appurtenant rights,

5 water interests are separate from real estate surface interest. See Hydro Res. Corp.,

6 2007-NMSC-061, ¶ 17. We see no reason why this concept does not apply to the

7 inchoate interest the parties were dealing in here.

8 {28} The most relevant argument the Christophers make is that Owens could not

9 reserve an interest because of the speculative nature of his intent to divert water. The

10 cases cited by the Christophers simply do not apply here. The facts in those cases

11 involve situations in which someone attempts to divert more water from a common

12 source than they can actually use with the intent or purpose of then essentially

13 extorting other potential users of water from the same source. See Millheiser v. Long,

14 1900-NMSC-012, ¶¶ 30-32, 10 N.M. 99, 61 P. 111 (holding that simply because

15 claimants had diverted the entire run of the water at issue did not give them the ability

16 to claim a right to all the water when they could not and had not put it to beneficial

17 use); see also New Mercer Ditch Co. v. Armstrong, 40 P. 989 (Colo. 1895) (same);

18 Toohey v. Campbell, 60 P. 396, 397 (Mont. 1900) (same); Power v. Switzer, 55 P. 32,

19 34-35 (Mont. 1898) (same). There is no evidence of such diversion or intent here. 
14

1 {29} Further, we observe that the same objection—if available at all—could be

2 made to the Christophers’ use and potential development of the water. There is no

3 evidence that they had any plan for diversion and use of the Maxwell Springs water

4 when they purchased the High Nogal Ranch. As argued by the Christophers, the same

5 charge of speculation could be made as to their reservation of “water rights for

6 commercial, domestic, municipal, industrial, and subdivision purposes from Maxwell

7 Springs per Grantors’ pending application No. SP-4896” when they sold the High

8 Nogal Ranch. There is no evidence that the Christophers had then applied any of the

9 water to beneficial use. There is no indication that a permit had been issued prior to

10 the sale or that one has been issued to date. As such, it could be argued that the

11 Christophers did not have a water right to convey or reserve either. At most, they had

12 an inchoate right that might eventually blossom into a water right. See Hanson v.

13 Turney, 2004-NMCA-069, ¶¶ 9-10, 136 N.M. 1, 94 P.3d 1. 

14 {30} It is important to note what we are not deciding. The record does not allow any

15 discussion about the nature of the relationship between Owens (now Sonora) and the

16 Christophers. The district court was correct in denying the motion for summary

17 judgment asking it to hold that a joint development venture had been formed. The

18 record does not support such a ruling in the summary judgment context; and—as with

19 other aspects of this case—may never, even after discovery. Neither are we deciding
15

1 whether the deed made Owens (now Sonora) joint tenants or co-tenants or simply

2 separate owners of an undivided half interest. We leave this and other related

3 questions to further litigation on remand. We decide only that Owens and the

4 Christophers could divide the potential for water as between themselves and, as

5 between them, the arrangement is enforceable. 

6 {31} Given our ruling that Owens had a cognizable interest in the development of

7 the Maxwell Springs, which he could reserve, we must also reverse the district court

8 orders concerning the failure of the warranty covenants in Owens’ deed to Sonora and

9 applying the doctrine of merger. Sonora’s cross-claim was based on the district

10 court’s ruling that Owens had nothing to convey to Sonora. Our ruling means that

11 Owens did have something he could convey. Thus, the rationale for the cross-claim

12 has evaporated. We reverse on that basis only. We venture no opinion on the law

13 relied on by the district court for its ruling. 

14 CONCLUSION

15 {32} We reverse and remand for further proceedings consistent with this Opinion.

16 {33} IT IS SO ORDERED.

17 __________________________________

18 MICHAEL D. BUSTAMANTE, Judge
16

1 WE CONCUR:

2 ___________________________________

3 LINDA M. VANZI, Judge

4 ___________________________________

5 M. MONICA ZAMORA, Judge