El Paso herald. (El Paso, Tex.) 1901-1931, 1914-04-24


| ter user. by. application Of the water 20
beneficial iIse- ACQUIRES a right 10 take
water from the PUBIC sIeaLA OF
source of supply, which right Is . sew
] eral right, owned and possssSS. ~ - -
individual user. nOtWlths ltAu4HE ne
fact fh9r the dftch through wien the
] water is carried to his lana nay nave
been constructed by the JOINT ldooi .-Ilu
money of the individual app ~ ~. 49,, -
in conjunction with olheIS sIil5ie-I ~
eit,49fe5 aDd the act Of 1895. did not
change the status Of the individual
Full History Of Case.
The history of the case IS an inter-
estfna- one II was initiated Tor the
ADJUDICATION OF the rights OF an Matel
users taking water from INC 40
tsrande below the Elephant Butte Dam
under the Elephant Butte lfI-satlon
project. IL was 10 be a judicial deter
miuatiOn Of the prlOrlues OF All exist
ing rights To the use OF water W4tnln
said district in advance Oh llle co-uple-
ton of the said Dam
owner of g66gj acres Oh land Tor Wnlcn
$50 miners inches had been approprl-
atcd i'm 1850, by making a reasonable
use of such water ana lands The
plafutiff asked that the defendants Do
debarred and forever eStopped from
having or claiming any right or title
in or TO the use OF such waters ana lha-
the respective rights Of the several par
ties defendant in and 10 the waters Of
said river might in Ike manner be as
certained. determined, fixed, declared
and established
Defendants Demurred.
Among the oeienuanLs We're diverse
community ditcnes, one OF these being
the MesilIa community ultch- W. w
Cox, one OF the individual defendants,
demurred, as did also r. >. D. NcsJfall,
upon the ground Jnar the Mesllla com
muulty ditch was the real party IN IN
teresJ VINO should have brought the pv-
utlOn- Judge T. l. MeClers IN the dis
trlcL court, sustained the demurrers.
The Las Cruces community often uleo
"a motion 10 make the complaint more
specific and certain, enumeraung Il
specific points. The mOuOn was sus-
talned as 10 the first second, fourth, [
sixth, seventh, eighth. 18th and 18th Of
these points. The plalntltt declined 10
plead further and judgment was en-
tered, clsmissing the case at PLAINTIFFS I
cost
The supreme court reVerSes the lower Z
court. Chief justice Roberts goes eA-
teusively into the history OF the COM I
munity bitches and their nature ana /.
character, arguing that the common {
law doctrine of riparian rights was not 4
suited TO an arid region and uphOldiu-
the socalled Colorado doctrine Of prI-
GRITTY. He maintains that each indiviu- 4
ull water user under community I
ditch was the owner Of a right TO take ]
water. and comes TO the conclusion THAI &
the district court erred in sustaining I
each Of the demurrers and the motion. I
to make more definite and certain
Text Of Syllabus.
The points ruled upon by the supreme !
court are set out in the syllabus as TO-
lows:
l. Chapter ]. S. L, 1895. IAN act in
regard 10 community bitches and ace
qulas, was pure-y administrative anu
while Sec. I Of said act makes cummu-
nifty aceQuias cOrpOratlC~e FOR the pu.-
pose Of this act, the legislature did
not confer upon the organization thus
created the power TO acquire or hoio
title 10 water rights such corporations
have no powers not expressly or i'm
1iedly granted them by the act Great
,. Tn history Of community acequias
,OnsId Cd
g. In New Mexico. the Colorado doc
riue.' as IL is termed, or prior appro-
lriati0n prevails such doctrine was
established or founded By the custom OF
he people, and grew out of the couGl-
ions Of the country and the necessities
" the people, IL was recognized by the
settled law.
4. An appropriation Of wafer does
Tot acquire a rlEhc 20 specific water
lowing in the stream, but only the
light TO take therefrom a given guam
ivy Of water, for a specified purpose.
5. The intention 10 apply water to
beneficial use, the diversion works ana
ne actual diversion of the water ala
water 10 the use intended. but it is tn-
pplcation OF the water. or the intent
% apply. followed with due diligence
Oward application and ultimate -ppli-
alton, which gives TO the appropriated
he continued and continuous right 70
axe the water.
O. Under a community ditch, each I
Tater user. by application OF the water
% beneficial use, acquires q right ru I
axe water from the public stream or
0urce OF supply, which right is a sew I
raj right, owned and possessed by the
llividual user Notwithstanding the I
act that the ditch through which the (
water rs carried 10 his land may have
cen constructed by the joint labor and
lOney of the individual apprOpriaI1r, !
D conjunction with other similarly sit
aIed. and the act Of 1895. supra. did I
ct change the status Of the individual !
lnsumer.
2. While q ditch, through which va I
Pr is secured for the irrigation Of lands
Tncd by the constructors in severalty- I
owned and possessed by the parties
3 tenants I'm common. the water rights . !
cquired by the parties are not attached {
d the ditch, but are appurtenCnt TO the
luds irrigated. and are owned By The
lrties iu severalty-
s. 30 lille See. I, charter i. 8 T. 1889.
AXE All community acequias corpora
ous. for the purpose OF that act. suc-
W did not divest the individual water