Albuquerque daily citizen. [volume] (Albuquerque, N.M.) 1895-1903, 1900-03-13
THE CITY DITCH.
Opinion Of Hon. W, B. Childers on
the Question at Issue,
HISTORY or the NUISANCE.

the city of albuquerque, which the
present city administration seems de-
termined to perpetuate at all hazards,
I will endeavor to state plainly its
history. as well as the law OF the case.
About the year 1852 the New Mexi-
co Town company, desiring to drain
its lots lying along and across n
swampy place some one hundred feet
or more in width and full Of cat-tails,
dug this ditch across its own lots, and
also across the lots Of the A. a =. adj
dition. belonging at that time TO Hun
ing. Hazcldine and Slower. These
gentlemen were a party to the digging
Of this ditch. and also wanted this
same swamp, or slough. which passed
through their lots, drained. At that
time there was an organization In AL
called the Board of Trade"
organized for promoting the interests
Of what was her known as New AL
buauerque." There was no corpora
ton. but that was the name OF the
postofnce. The mayordomo and COM
missioners of the Griegos acequla en-
tered into an agreement with certain
members OF this board Of trade. The
parties to this agreement are described
the commissioners and mayordomo
Of Los Grigos. az representatives OF
said community. parties Of the first
part. and the undersigned citizens and
real estate owners OF the New Town
Of Albuquerque. OF the second part"
The contract Is signed by eighteen
persons. I, myself, being one Of them.
II provides that the community OF
Los Grlegos abandons all that part Of
their ditch south OF the public road
leading from albuquerque to the noun
talns. IL then provides that the COM
munity OF the city OF albuquerque.
through the undersigned citizens OF
the same in consideration of the re-
linqulshment Of said acequla, binds
itself to grant the said community of
Los Griegos n free waste waterway or
spillway for the surplus or waste wa
tiers of said acequia through the large
canal or ditch which runs through the
new town Of Albuquerque. free OF costs
and free as to said community. party
OF the first part, as to any RESPONSE
bility from n damage that may be
caused in the future by the waters OF
said acequa running through said
canal"
The hitch had already been con
structed at this time and 1t was
thought that II would be a benefit To
have This water from the Griegos
aceuuia run through the canal. The
town of Albuquerque was Incorporated
in 1855. Henry jana was the first
mayor. The ditch was already n
nuisance. Under this administration
a wooden hume was placed in It.
Nothing else was done with II by the
city until the administration OF NJ.
Mnndell. There was a considerable fall
Of water in 1890. ! believe, which ac-
cumulated on Tijeras road and Cop
per avenue. The ditch would not take
IL on and Mayor Mandell was COM
PEELED To have one dug on First street
for this purpose. He also employed
about $50 men to remove the iiume, or
parts Of II. and clean IA the old ditch.
The city a never done anything
with. or to this ditch. from then ull
now. II has simply stayed there. and
stunk and stunk, and still stays there
and stinks and stinks, and VIII con-
tinue to do 80 until 1t IL filled up. or
some other provision made different
from an open ditch. Considerable Inn
provement In the condition was had
for a while by the construction or the
sewer system, for the amount OF the
deposit and drainage In the ditch wal
thereby considerably reduced. but the
growth of the city and the Increase
in buildings along II has more than
made up for this.
That II is a nuisance nc person can
tr%uthfully deny; that an open ditch
running through a thickly settled town
with houses along and over II, and hav-
ing practically no fall, can be made
anything else but a nuisance. is toe
plain for argument, We nave com
| pletely given the history Of this ditch
These facts cannot be denied. The
city has never made Itself responsible
for the contract entered into with th'
Los Grlegos people. The gentlemen
who made that contract had no auth
GRITTY to bind the city; neither he city
or the town was In existence at th'
time. and nothing that the town or city
has ever done In connection with thli
ditch could by any possibility be a rat
incatlon of such a contract. II hal
never attempted to ratify 1t by writ
ing or by express action OF the city
authorities. To contend that the city
IL bound to the people of Los Grlegoi
in any way on account of this contrac
seems too absurd for discussion.
II IL laid down by Dillon on Munici
pal Corporations. the leading authorit!
on this subject. las a general rule un
doubtedly, a city corporation IL only
liable upon express contracts authoriz'
ed by ordinance" There are a few ex'
ceptlons to this rule, but this contracI
does not come under any such eNcep
ton. | cannot stop to quote lega
authorities at this time. but | will un
dertake to sustain this proposition a
any time. But IL this ditch Ia a null
sance, the Los Griegos proposition II
wholly immaterial and irrelevant. Il
the people Of Los Griegos had beer
running their water through this ditcl
for a hundred years and the change II
the conditions along the ditch by set
element were such that the ditch ha'
become a nuisance 10 the public liv
ing along the ditch, the owners of tn
Griegos ditch would themselves be en-
Joined by any competent court fror
maintaining "A nuisance. The applica
ton OF Just legal principles would Ell
JON tllHtI lut AlAg VI AlbAaA'AiHN "
} the owners OF the Griegos acequla frof
maintaining a nuisance. The applica
liar case the supreme court of IN
United States said: In such case
prescription, whatever the length {
time, has no application. Every day
I continuance Ia a new offense, and II
no justification that the party con
planning came voluntarily within 1t
reach. Pure air and comfortable en-
; joyment Of property are as much right
belonging to II as the right OF possei
sion and occupany, II population
where there was none before, al
proaches a nuisance, II Is the duty
those liable at once to put an end
: IT," Northwestern Fertilizing Co, v
!, Hyde Park, 81 u. S., 500, There Ia y
authority to be found authorizing mi
nicipal corporations, either to ltceni
I a public nuisance or TO defend again
one maintained by itself, upon n
: ground OF any contract II may hay
e made, Another ground for the retei
q ton Of this ditch Is that It II necessai
49, NH 80