Albuquerque daily citizen. [volume] (Albuquerque, N.M.) 1895-1903, 1898-02-01
AN INTERESTING CASE !
Hon. Neill B. Field Closed His
Mastery Argument.
He Quoted Strong Decisions to Sus-
tain Bis Case.
United States Attorney chllders opened for
the Canal Company.
HE MADE A FnE ARsumEHr.

OF yesterday afternoon in finishing the
opening argument in behalf Of the de-
PENDANTS In the injunction case.
His main contention was that a corpo
ration like the plaintiff in the present
case cannot appropriate the water OF
streams similar 10 the Bio Grande, and
all that IL can do Ia 10 serve as q public
carrier Of water belonging TO the people,
the same as a railroad carrying freight.
He quoted from q decision Of the su-
preme court Of Colorado, holding that
before an irrigation company can take
the water OF stream IL must first show
contracts with the people who have the
right 10 use the water.
Mr.. Field also elaborately reviewed the
laws and customs OF Mexico and Spain
In regard 10 irrigation and water rights,
which were In force here prior 10 the ces-
satiOn Of this territory 10 the United
States by Old Mexico and which were
then secured 10 the people OF this section
by the treaty Of Guadalupe Hidalgo. Mr..
Field showed that by the laws Of Spain
no one had a right 10 ownership OF water
In streams but only 10 the use Of IL.
No company could therefore apprOpri.
ate the water TO Its own use and for spec.
ulative purposes.
When Mr.. Field finished his argument,
an adjournment was taken until 10
o'clock this morning.
This morning Hon. W. b. Childers
made the opening argument in behalf OF
the canal company. He commenced at
10 o'clock and finished at noon, when an
adjournment was taken until 10 morrow
morning at 10 o'clock. when Judge N. @.
Collier will make the closing argument
In behalf Of the plaintiff company.
In his argument this morning Mr..
Childers maintained that the plaintiff In
the present case Ia public corporation.
regularly organized under the Legislative
act Of 1887, which act gave II ample
rights 10 90 on the land Of the defend
ants, make surveys and all preliminary
Investigations and TO exercise the right
OF eminent domain. This act also fully
protected the vested rights Of the prior
appropriations OF the water and II was time
enough for the defendants 10 come into
court and ask for Its protection when
those vested rights were violated and get
relief when they we're damaged and not
before.
All the conditions o; the act OF 1887
had been complied with by the company
and II therefore had the right TO proceed
with the construction OF the ditch.
He quoted United States laws In which
the riparian rights which man had
under the common law were done away
with In the arid regions Of the country,
where person by prior appropriation
could devote the water 10 beneficial uses.
The prior appropriations, however, had no
exclusive privilege but onlya conditional
one to use the water actually required.
The United States laws justify the apprO-
priatiOn OF the surplus water, and the
territorial legislature can grant and have
granted corporate rights 10 companies TO
appropriate this surplus water for pub.
lie benefit, The company then has the
right to take out the water and 10 charge
for Its delivery and TO exercise the right
OF eminent domain, which rests solely on
legislative consent.
He agreed that II the company did not
secure customers, then 1t had no right TO
the water, but cOntended that II could
not be urged against the construction Of
the ditch that IL would secure no custom
ers any more than II could be urged
against the building OF railroad that II
would get no freight to carry after II was
constructed
In conclusion he argued that II the use
of the canal was to be public, then the
necessity and propriety Of exercising the
right 10 construct II is not matter OF
judicial cOgnizsnce and the only ques'
tiOn TO be decided Is whether II Is pub
lie use OF not.