Albuquerque morning journal. [volume] (Albuquerque, N.M.) 1903-1926, 1908-01-25
JUDGE MANN RULES
AGAINST THE
INDIANS
IN FAMOUS TULAR0SA
WATER RIGHTS ACTION
Holds That Superintendent
Carroll and the MescaIeroS
Must Remain Party to Suitof
the TuIaroSa Farmers.

community ditch versus the Tularosa
Land and Cattle company, in which
the government, by David J. Leahy, its
attorney for New Mexico, filed its mo-
tion to dismiss as to the Mescalero
Indians, and which was argued be-
fore the court the 3Qth of last Deem
Der, as well as the order overrulng
the motion and directing the referee
in the cause to continue taking the
testimony Of the parties to the suit,
preparatory to deciding the issues in
volvcd on the merits of the respective
rights shown The opinion fully sets
out the facts as regards the motion
in question, and is as follows:
This cause comes up for hearing
on a motion interposed by the United
States district attorney for New Mex
leo on behalf eff James A. Carroll, su-
perintendent of Indian schools, and
ex-offcio agent of the Mescalero
Apache Indian reservation, in Otero
and Lincoln counties, New Mexico,
John Doe, a Mescalero Indian, and all
other Indians residing on said reser-
walton, all Of whom are parties de-
district court of Otero county, which
suit is one in equity brought by the
TularOsa community ditch to restrain
and enjoin these defendants and 9TH
ers from diVerting the waters of the
Tularosa river. In SO far as the ques-
tons presented by the motion are con-
ccrned, the facts as admitted by the
motion, which is in the nature of Il
demurrer questioning the jurisdiction
of the court. are as follows:
In the year 1862 a number Of fam
lilies settled at a point on the Rio
Tularosa. where that stream reached
the plains, at the foot Of the noun
tains and diverted and appropriated
the waters Of that stream for the irri-
cation of their lands At that time,
and for many years thereafter, the
Tularosa, from the settlement to its
source. and the springs which Consti-
tuted the source of its water supply,
were all upon and ran through and
across unsurveyed public lands of the
United States The stream rises in
the mountains east of the settlement
and flows through mountain canyons,
bCtdolOudllN ofl tdhIl6 bul iiiNb llANA'
valleys Of several hundred acres Of
arabic land, until it reaches the set
Element, some twenty miles or more
from its source, and is alleged to car
ry a normal flow Of 60S.19 cubic feet
per minute, including tributary springs
flowing into it. The court takes iu-
dicial notice Of the fact that the com
munity Of Tularosa comprises now
something like thousand people, and
that they have cultivated fields. or
chards and alfalfa meadows, all of
which are and can be irrigated only
from the Tularosa river
THE pleadings further disclose that
in May, 1874, the United States gov
eminent created the Mescalero Apache
Indian reservation in what is now a
part Of Otero and Lincoln counties, in
New Mexico, and that the headWaters
Of the Rio Tuarosa, and all of that
stream and its tributaries to a point
about twelve miles east of Tularosa,
are within the limits Of the reserva-
ton. 1t is also alleged that James
A. Carroll, the eX-officio agent OF
these Indians. encourages and advises
the Indians Of said reservation to farm
the lands in Tularosa canyon, and
that the Indians, acting under his adj
vice and encouragement, do so divert
and use the waters, which plaintiff
claims to have long prior thereto app
propriated, so as to practically deprive
plaintiff of its appropriation of Wa
ter
The motion presented by counsel
for the government attacks the jur-
isdction of the court upon the fol-
lowing grounds.
L. Because it appears from the
pluadngs in said cause that the par
ties defendant, hereinabove named
Carroll and the Indians) are proceed
ed against not as individuals. but as
agents, employees and wards Of the
United States. 50 that they, the said
defendants. can not be proceeded
against as prayed for in the COM
plant filed in said cause without in
volving the rights and property OF
the United States.
.. Because the relief sought by
plaintiff is not from the said dcfenu.
ants, but from the United States.
3. Because the United states is a
necessary party to said cause and is
party in interest thereto.