Santa Fe new Mexican. [volume] (Santa Fe, N.M.) 1898-1951, 1898-06-25
The ALBUQUERQUE DITCH CASE.
Order Made by Judge McFie Yesterday
The Company can Proceed With Con-
struction Of its bitches Question
of Water Rights to be De-
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In the case of the Albuquerque Lane
& Irrigation company against the Pu
eblos of Sandia and Santa Ana. dis
missed yesterday, the said pueblos, al
cross complainants, desired an injunc
ton restraining the ditch company from
constructing its ditch system across tht
lands of the pueblos. The attorneys
appearing for the Albuquerque Land &
Irrigation company were w. B. Child
ers, ESQ.,, and Messrs. Collier & Marion
and for the defendants and cross com.
plainants, Geo. Hill Howard, Esq.
The following is the order as made
by the court yesterday in the case:
In the District court of the 1st Judi
cial district, county of Santa Fc, terri
tory of New Mexico.
Albuquerque Land
& Irrigation Co.,
VS.. No. 1867. Decree
Pueblo of Sandia
ct AL
This cause coming on to be heard
upon the original complaint. answer
cross-complaint, and the reply thereto
and upon the agreed statement of facts
submitted by the parties, and the court
having heard counsel for the respective
parties, and being fully advised in the
premises, finds:
That the preliminary survey which
was obstructed by the said defendants
has been fully completed, and all the re-
lief prayed for in the original complaint
has already been had
And the court, upon the issues arising
upon the cross-complaint, the answer
thereto, finds: First, That the said
plaintiff is regularly Incorporated, and
authorized to exercise the right of emf
nent domain for the purpose of con-
structing the ditch referred to in the
pleadings in this cause, and second,
that the said plaintiff is entitled as q
matter of law to construct said ditch,
and to exercise the right OF eminent do
main by going upon the lands of the
said defendants in compliance with the
statute, and appropriating so much of
said lands as may be necessary for the
construction of said ditch.
The court further finds that the cross
complainants are not entitled to the relief
prayed for in and by their cross-com-
plaint filed in this cause, that in accord
ance with the stipulation and agreed
statement of facts filed herein, the said
cross-complainants are entitled to their
rights us prior appropriations Of water
in said stream, and the same are not to
be adjudicated or affected by this de-
cree.
The court further finds that the rights
of said cross-complainants as such prior
appropriations are not and cannot be
affected in any way by the construction
of said ditch, and that the decree rem
dered in this cause is subject to such
rights as the said cross-complainants
have, to the use of the water in said
stream as such prior appropriations, and
for the purpose OF protecting said rights
said cross-complainants are not now en-
titled to an injunction.
The court, having fully considered
the issues arising upon the pleadings
and the agreed statement of facts here
inbefore referred to
Doth order, adjudge and decree that
the said original complaint, and tho
cross-complaint, be and the same are
hereby dismissed, and that the said
complainant have and recover its costs
in its behalf expended, to be taxed, and
execution issue therefor An appeal to
the Supreme court Of the territory on
the prayer Of said cross-complainants is
hereby granted.
JOHN r. MCFIE.
Associate Justice of the Supreme Court
Of the Territory of New Mexico, and
Judge Of the First Judicial District
Court thereof.