Santa Fe new Mexican. [volume] (Santa Fe, N.M.) 1898-1951, 1900-05-10
IMPORTANT OPINIONS
In Three Cases Handed Down by the
Supreme Court of New Mexico
At It's Last Session.
FORMER DECISIONS BINDING
The Statute Of Limitation Does Not Hold
Where An Admission of Debt Is Made
By the Defendant Water
Rights Case.

A number Of supreme court opinions
growing out Of the January term have
lately been filed in the office of Supreme
Court Clerk J. D. Sena. Among them is
the opinion by Judge McFie, in which
Chief Justice Mills and Associate Jus
tice Parker concur, in the long pending
case entitled Hattie e. Crary, appellant,
vs.. Neill B.Tield, executor, ct al, appel
lees, appealed from Bernalillo county
in which for the first time in the history
Of New Mexico Jurisprudence it is an
nounced that where a case, upon sub
stantially the same evidence, once has
been before this court, the former deci-
sion will stand as the law of the case,
and will not be reviewed. In his opin-
ion, Justice McFie holds that "where a
husband remained in undisputed pos
session of community real estate from
the death Of his wife, in April 1868, un-
til 1882, when he sold the same without
objection to bona fide purchaser for
value. the law will presume that the
sale was lawfully made, and this pre-
sumption will prevail to protect the til
tie of such purchaser, whether there
were community debts at the death of
the wife or not in suit by the heirs
of the mother
STATUTE OF LIMITATION.
In the case of Numa Raymond,
plaintiff in error, VS.. S. B. Newcomb,
defendant in error, appeal from Dona
ion is concurred in by Chief Justice
Mills and Justice McFie. The syllabus
sets forth that "the clause in section
1926, compiled laws 1897, reciting that
one of the modes in which a cause of
action shall be revived, is by an ad-
mission that the debt is unpaid, being
Identical with the provision in the Iowa
statute. A person having. executed
chattel mortgage to secure certain in
debtedness, wrote to his debtor, the
mortgage, as follows: II shall sell our
cattle the first chance. I am tired of
the business, and want to pay off that
mortgage" Held, sufficiently clear and
unqualified to constitute an admission
that the debt secured by the mortgage
is unpaid, and to operate to remove the
bar of the statute of limitations"
A WATER RIGHTS CASE.
In the case of Millhiser VS.. the Pecos
Irrigation and Improvement Company
ct al, appeal from Chaves county,
suit in equity by which complainants in
the lower court sought to establish
rights claimed by them to the use of
water from the Rio Hondo by virtue of
an alleged appropriation for agricul-
tural purposes by the plaintiffs and
their grantees through and by means of
a ditch constructed in 1888. The opinion
is by Justice McFie. Chief Justice Mills
and Associate Justices Crumpacker and
Parker concurring. The syllabus holds:
First. Capacity of ditch alone does not
constitute valid appropriation of wa
ter, unaccompanied by application of
the water to some beneficial use.
Second. Where two bitches are re-
ceiving water from the same stream,
one constructed in 1885 and the second
in 1888, the owners of water rights in
the first at the time the second is con-
structed have prior appropriation of
so much water as has been actually ap-
piled by them to some beneficial pur-
pose, but sales of water rights by them
for the use Of water to be conducted
through the first ditch in excess of valid
appropriation, by the owners Of water
rights in the second ditch, after water
has been diverted and beneflcially ap-
piled through the second ditch, is void
as to such excess as against the rights
Of valid appropriations through the Sec
ond ditch.
Third. Where the controversy in
wolves the prior appropriation of water
between those claiming water rights In
two bitches constructed at different
times, proof which fails to show what
tract or tracts Of land water was con-
Quoted upon, how much Of the land, for
what years, and what portion each
year, is not sufficiently specific to base
a decree upon as to the prior appropria-
tions of the water, where numerous
tracts of land and ten years time are
involved.
Fourth. Where, in cause tried by
the court without jury, the court fails
to find material facts, which, being con-
sidered, demonstrate that the decree
rendered in the court below was mani
testify wrong, this court will consider
such facts to enable the court to arrive
at just conclusion.
Fifth. The doctrine of prior appro-
priation governs the distribution of wa
ter in this case. Reversed and remand
ed.