BURGETT et al. v. CALENTINE
No. 5168
Supreme Court of New Mexico
April 3, 1951
On Rehearing March 20, 1952
242 P.2d 276
Admittedly, there is hardship upon the Gas Company. It expended large sums of money in laying and maintaining its high prеssure gas line but by reason thereof the court is not warranted in destroying defendants’ settled property rights and saying to them that they can secure as good results by a different use of their property. This they are under no obligation to do. So to do would be an arbitrary exercise of power which is not warranted, however desirable and simple the building of their house five to ten feet away from the high pressure gas line may be.
We are of the opinion, that the court erred in holding that the Gas Company acquired an easement by prescription across the defendants’ tract of land and that the easement acquired by it, under the facts shown was nоt extinguished by the transfer of ownership to the defendants.
It follows from all of the foregoing that the judgment of the district court is erroneous, and should be reversed, and the cause remanded, with directions to dissolve the injunction heretofore issued in the case, and to render judgment for the defendants. It is so ordered.
SADLER, McGHEE and COORS, JJ., concur.
COMPTON, J., did not participate.
Shipley & Shipley, Alamogordo, for appellees.
LUJAN, Chief Justice.
This is an action for damages in tort and for an injunction to restrain the defendant from intеrfering with the plaintiffs’ use and enjoyment of an easement. The case was tried to the court without a jury and it found in favor of the plаintiffs. From the judgment which followed, the defendant prosecutes this appeal. The
In 1884, James Hunter, the predecessor in title of the plaintiffs, settled on public land adjoining the quarter sеction on which certain springs are located. While the land was still a part of the public domain of the United States the plаintiffs’ predecessor in interest appropriated the waters flowing from these springs, and conveyed them by means of ditches and wooden troughs to the land now owned by plaintiffs and there used them for domestic and irrigation purposes. As a part of Hunter‘s diversion works and for the protection of the springs from pollution and damage, he constructed a fence on approximаtely one-quarter acre around the springs. In 1892, Hunter received a patent from the United States to the land now owned by plaintiffs. This lаnd with all appurtenances has passed by mesne conveyances to plaintiffs, and, since their acquisition of this land, they havе replaced the old means of conveyances theretofore installed by their predecessors in title with a two inch pipe, as well as a new fence around the springs.
Subsequent to the appropriation of this water by Mr. Hunter, the United States Govеrnment, by grant conveyed the land upon which these springs are situated to the State of New Mexico.
The plaintiffs base their clаim to the use of the waters, pipe line and fence involved in these proceedings upon the appropriation аnd development thereof by their predecessors in title. The defendant bases his claim to the waters in dispute upon a grazing lease from the State of New Mexico on which the springs are located.
The defendant contends that since the waters frоm these springs do not flow in a natural channel, but sink in the soil, they are not subject to appropriation. We agree with this contеntion.
The law of appropriating water does not apply to springs which do not have a well defined channel through which the water can flow. Vanderwork v. Hewes & Dean, 15 N.M. 439, 110 P. 567; Howard v. Perrin, 8 Ariz. 347, 76 P. 460, aff‘d by the Supreme Court of the United States, 200 U.S. 71, 26 S.Ct. 195, 50 L. Ed. 374. However, if the water rises to the surface and thereafter flows in a stream so as to form a definite channel, it may be appropriated. Keeney v. Carillo, 2 N.M. 480; De Necochea v. Curtis, 80 Cal. 397, 20 P. 563, 22 P. 198; Williams v. Harter, 121 Cal. 47, 53 P. 405.
The finding of fact, which is sustained by the evidence, “that the springs are small springs and that the waters frоm same do not flow off the State land, but sink in the ground,” excludes any idea of a “river, creek, arroyo, canyon, draw or wash.” Consеquently the water of the
We now pass to the next question: Can an easement be acquired against the United States Government or the state?
An easement cannot be acquired against the State or United States, by adverse possession. 19 C.J., Sectiоns 23, 24, p. 876; 28 C.J.S., Easements, § 9, page 643; and cases cited in the foot notes. The general rule is to the effect that: “In the absence оf a provision making the state subject to the statute of limitation no title by adverse possession can be acquired against thе state or the United States no matter how long continued.” 2 C.J. Sections 440, 443, p. 213, 214, citing many cases from the Supreme Court of the United States and from thirty states. 2 C.J.S., Adverse Possession, § 12.
Thus, the mere fact that the plaintiffs and their predecessors in title made improvements on lаnd owned by the United States and later by the State and thereafter used the water of the springs in question, continuously for over sixty years, did not vest them with an easement.
The judgment will be reversed and the cause remanded with a direction to the district court to dismiss the complaint. The defendant-appellant will recover his costs below and here. It is so ordered.
SADLER, McGHEE and COMPTON, JJ., concur.
COORS, J., did not participate.
On Motion for Rehearing.
LUJAN, Chief Justice.
In our opinion on file, the fact wаs overlooked that defendant (appellant) in the answer filed by him had not questioned the use by plaintiff (appellee) of sо much water from the springs in question as could be carried by a 3/4 inch pipe and in the answer defendant indicated a willingness to have plaintiff continue such use. We have no disposition to withhold from plaintiff any use of the waters, as between the parties hereto, which defendant in his formal answer indicates a willingness to concede plaintiff.
Accordingly, and basing our direction solely upоn the concessions contained in defendant‘s answer, our former opinion is modified so as to direct the trial court, in reframing the decree to be entered herein, to incorporate therein such provisions as will permit and protect the plаintiff‘s enjoyment in the use of such waters to the extent and by the means consented to by defendant in his said answer.
It is so ordered.
SADLER, McGHEE and COMPTON, JJ., concur.
COORS, J., did not participate.