Albuquerque weekly citizen. (Albuquerque, N.M.) 1891-19??, 1900-03-17
THE CITY DITCH.
Opinion Of Hon, W, 3. Chiiders on
the Question at Issue,
HISTORY or THE NUISANCE.

Hon. W. Il. ChIdcrs has given The
following able legal opinion regarding
the city ditch nuisance.
la reply to your Inquiry about the
legal status 10 the open sewer through
the oty Of Aibuqefque. which the
present city administration seems de-
termined % perpetuate az an hazards,
/ Will endeayor TO state plainly lis
history, as well as the law OF The case.
About the year 1889 the New Next
90 Town company desiring TO drain
lts lots lying along and across
swampy place some one hundred feet
or more in width and full OF cat tails,
dug this ditch across us own lots, and
also across the lots OF the a. a 4 ad.
dillon. belonging at that time To Hun
Ing Hazeldine and Slower. These
gentlemen were party To the digging
or this ditch, and also wanted this
same swamp, or slough. which passed
through their lots. drained. AZ that
Time there was an organization In Al
buqerque called the Board OF Trade"
organized for promoting the interests
OF what Was then known as New Al
buquerquo' There was no corpora
uon, but that was the name Of the
postpiiico. The mayordumo and com.
mlssioners OF the Grisg0s ucequla en-
tered into an agreement with certain
members of this board Of trade. The
parties TO this agreement are described
as the commissioners ana may ordomo
OF Los GrigJs, as representatives OF
said community, parties of the first
pant, ana the undersigned citizens and
real estate owners OF the New Town
Of Albuquerque. OF the second part"
The contract Is signed by eighteen
persons, !, myself. being one of them
u provides that the community OF
Los Griegos abandons all that part Of
their ditch south OF the public road
leading from albuquerque 10 the noun
taina II then provides that the COM
munity OF the city OF Albuquerque.
through the undersigned citizens OF
the same IN consideration Of the re-
lnquishment ~ said acequla. binds
Itself 70 grant The said community OF
Los Grlegos free waste waterway or
spillway ION the surplus OF waste wa
ters % said acequls through the large
canal or ditch which runs through the
new town OF Albuquerque. free OF costs
and free as 10 said community. party
OF the FIRST part. as 20 any rcspons.
billy from any damage that may bee
caused In the future boy the waters OF
said acequa running through said
canal"
The fitch had already been con.
structed az this time and IL was
thought that Il would be benefit 10
have his water from the arlegos
acequia run through the canal The
town of Albuquerque was Incorporated
In iss5 Henry Jana was the nrst
mayor. The ditch was already
nuisance, Under this administration
wooden hume was placed In g.
Nothing else was done with Il by the
city until the administration OF NJ.
Mandell. There was considerable fan
% water in 1890 ! believe. which ac-
cumulatod on Tijeras road and Cop
per avenue, The ditch would not take
it On and Mayor Mandell was com
PEELED 10 have one dug on First street
Tor tk.s purpose lie also employed
about 100 men To remove the hume, cor
parts ~ 70, ana clean ont the old ditch.
The city has never done anything
with or To this ditch, from then an
now u has simrly stayef there, and
skunk and skunk, ana still stays there
and stinks and stinks. and viii con-
tinur a. do 80 until it II nlled up or
some ether provision made different
from an open ditch. Considerable Ina.
proyemcnt IN the condition was nad
for while by the construction - the
sewer system. for the amount OF the
deposit aud drainage Ia the ditch WAS
thereby considerably reduced, but the
growth Of the city and the Increase
ln buildings along u has more than
made up for this
That IL ~ nuisance no person can
truthfully deny; that an open ditch
running through o. thlckly settled town
with houses along and oveg "a. and hav
ing practically no tall, can be- made
anything else hut nuisance, 10 too
plain FOR argument We have com.
pletcly given the history " this ditch,
Thene facts cannot be denied The
city has never made Itself Responsible
for the contract entered late with the
Los 0riegos people, The gentlemen
who made that contract had no auth.
GRITTY 90 bind the city neither the city
or the town was lD existence az the
time and nothing that the town or city
has ever done IN connection with this
ditch could b. any possibility be a rat.
ihcation ~ such contract II has
never attempted o. ratify Il by writ
ing or by express action OF the city
authorities. TO contend that the city
Is bound 10 the people % los Oriogps
in any way on account % this contract
seems too absurd Tor discussion.
u il laid down by Dillon on Munich
pal Corporations TIE leading authority
on this subject "as general rule un-
doubtedly. a city corporation IL only
liable upon express contracts authoriz,
"a by ordinance" There are a few ex.
ceptlonu 20 this rule, but this contract
does not come under any such excep-
tion. ! cannot stop 10 quote legal
authorities az this time. but I Will uu-
dertake 60 sustain this proposition az
any tim9. but " this ditch 10 a nui-
sance. The Los driogoa proposition 10
wholly immaterial and irrelevant, if
the people 81 Los Orlegos had been
running their water through this ditch
for hundred years and the change Ia
the conditions along the ditch By set.
Element were such that the ditch bad
become nuisance 10 ne public Nv.
Ing along the ditch. the owners % the