13 N.M. 146 | N.M. | 1905
Lead Opinion
OPINION OP THE COURT.
' This involves a consideration of the act of February 28, 1895, for the first section of that act, (C. L. Sec. 8) provides:
“All community'" ditches or acequias, now constructed or hereafter to be constructed in this Territory, shall for the purpose of this act be considered as corporations or bodies corporate, with power to sue or to be sued as such.”
Section 2 provides (C. L. Sec. 9), that the officers of such community ditches shall consist of three commissioners and one mayordomo or superintendent, each of whom shall be the owner of an interest in said ditch or the water therein. By Section 3 (C..L. Sec. 10) at elections for these officers only those having water rights in the ditch shall be allowed a vote; but votes may be cast by written proxy and shall be in proportion to the interest of the voter in the ditch or water, or in proportion to the number or amount of his water rights. Section 4, as amended by Chapter 44 of the Session Laws of 1897, (C. L. Secs. 11), and Chapter 44, Sec. 1, of the Laws of 1903, is as follows:
“The commissioners shall assess fatigue work or task of all parties owning water rights in said communitv ditches or acequias, and shall have power to contract oY be contracted with and also to make all necessary assessments to provide funds for the payment of the salary of the mayordomo and other legitimate expenses incident to the proper conduct and maintenance of the acequias under their charge, and also to make contracts for obtaining water for irrigating purposes in connection with their ditches, such contracts to be ratified by a vote of a majority of the owners of water rights in said ditches, and shall have general charge and control of all affairs pertaining to the same, together with the power to receive money in lieu of said fatigue or task work at a price to be fixed by them, and shall, immediately upon taking office, provide by-laws, rules and regulations not' in conformity with the laws of the Territory for the government of said .ditch or acequia, and a printed copy thereof shall be furnished to each owner of a water right in said ditch.
The remainder of Section 4 as amended, defines the duties of the mayordomo, prescribing that he shall, under the direction of said commissioners, be the executive officer of said ditch, superintending all work thereon and the distribution of the waters, with power to collect fines and amounts to be paid in lieu of fatigue or task work, and to perform such other duties in connection with the ditch as shall be prescribed by the commissioners, or by the rules and regulations. In the remainder of the act are definitions of the penalties imposed. It is contended that by this action, the legislature gave to the various owners in the ditch the attributes of stockholders, to the commissioners the power of directors, and that in the exercise of these powers the course of a ditch may, by a majority vote of said so-called stockholders and directors, be changed, no matter how disastrous may be consequences to the minority. As producing this result'special emphasis is laid upon the words in Section 11, providing that “the commissioners shall have general charge and control of all affairs pertaining to the same.” It is to be noted, however, at the very outset, that the corporation which the legislature has thus created out of each community ditch in the Territory is in no sense a voluntary corporation. The investiture of corporate functions is not even made permissive. The legislature says that such ditches “shall be considered as corporations,” and this result follows equally whether all or none of these interested in such ditch desire it to.become a corporation. Tbe corporation thus created is not endowed with the general powers pertaining to corporations. It has only the powers expressly of by necessary implication granted to it by the act creating it and no more. It belongs to the class of corporations known as public involuntarjr quasi corporations. This character of corporation is discussed in Elmore v. Drainage Commissioners, 135 Ill. 269, 273, where it is said:
“In regard to public involuntary quasi corporations the rule is otherwise, and there is no such implied liability imposed upon them. These latter — such as counties, townships, school districts, and other similar quasi corporations — exist under general laws of the state which apportion its territory into local sub-divisions for the purpose of civil and governmental administration and impose upon the people residing in said several sub-divisions precise and limited public duties and clothe them with restricted corporate functions, co-extensive with the duties devolved upon them. In such organizations the duties and their correlative powers are assumed in invitum.”
We have, heretofore, considered this case in the light of the possibilities which might flow from the arbitrary or tyrannical act of a majority of the ditch owners in changing its course against the will of the minority. We come now to consider the case in the final aspect'under which it is presented by appellant, which is, that assuming that neither the original community understanding-nor the incorporation act of 1895, gave the power to change the course of the main ditch unnecessarily, such power exists where by natural causes the maintenance of the ditch on its old course has become an impossibility.
Defendants, carrying the demurrer back to the complaint, set forth in their brief several matters as to which it is urged the complaint fails to state facts sufficient to justify the relief prayed. It is urged that the complaint sets forth no ground for injunction, in that there is no sufficient allegation of irreparable damage. We think, however, that the complaint is ample to justify the granting of the relief prayed. It shows that the wrongful act of the defendants, -if insisted upon, will deprive them of a valuable property right in water, will render some of their lands uncultivable, and will diminish or destroy their crops on other lands. It further shows that this damage will be continuous and that a multiplicity of suits, renewed from time to time in the future, will be necessary to secure from the defendants compensation in damages for the oft-repeated wrong. It is further alleged that the defendants are insolvent. This makes a case clearly calling for the writ of injunction. Davis v. Londgreen, 8 Neb. 43; Waddingham v. Robledo, 6 N. M. 347. The other points mentioned by defendants in their brief in criticism of the complaint are not argued, but we find nothing in them to justify the view that the complaint does not state a cause of action.
The judgment of the court below is affirmed.
— I agree with the contusion reached by the learned judge who wrote the opinion in this ease, and I do so for the reason that the appellants when their answer was demurred to and the demurrer was finally sustained, elected to stand upon it, did not amend their answer, took no proofs, and the judgment of affirmance is warranted by the pleadings.
I cannot, however, concur in the reasoning of the court, by which the owner of one water right in an acequia out of a possible hundred, can prevent the ninety and nine from changing its location .when it may be to the manifest advantage of all to make the- change.
I do not believe that the course of an acequia, when once established, is as unalterable as the laws of the Medes and Persians; the lay-out of a highway can be changed when public convenience requires it, and I am unable to see why the course of an acequia is any more sacred than that of a highway, especially as the court after a hearing, when it considers it proper that a change in its location be made, can incorporate in the decree, provisions which will amply protect all minority owners of land served by the waters of the ditch.
Dissenting Opinion
(Dissenting.) I cannot concur in the result attained by the majority of this court expressed in the exhaustive opinion written by Mr. Justice Pope, because I believe that such a result is arrived at through a mistaken conception of the relations of the parties constituting a community ditch and an erroneous construction of the laws governing such ditches. I believe that if such construction is placed upon the acequia laws of the Territory, evil consequences will follow, in that a minority, even of one person, may control the reasonable wishes of the majority, cause unnecessary and unreasonable expense and inconvenience to the community and retard and impede the progress and advancement of the Territory.
Indulging what I take to be judicial knowledge and' common custom, I conclude that a community of persons, like those of Santa Teresa and Colorado, desiring to irrigate their lands for their individual and common benefit of the community, by common consent entered upon an enterprise for the common good and for the benefit of each of those joining the enterprise, namely, to divert and convey water for the irrigation of their lands. The primary object was the water, the thing that made their lands valuable and insured their daily bread, in that, each member personally acquired a property right which cannot be taken away. The ditch was a community affair, it being merely the means of diverting and carrying the water.
In so far as the ditch is concerned, the members of this community were tenants in common and no individual acquired any "property right” to have it run in any particular place or channel, except as it would best serve the community at large. If time demonstrated that a certain portion of the ditch was costing the community too much for is maintenance, that by reason of floods or other causes the established line was impracticable, that during the very months of the year when water was obtainable for irrigation, a portion of the ditch was destroyed and the crops of a large majority of the interested community were being lost for want of water, can one man, or a few men, prevent the majority of those in interest from correcting the mistake and changing the ditch so as to avoid these calamities, when, by so doing, the minority are not deprived of water but are in fact benefited by the change ?
All these facts appear in the answer and are admitted by the demurrer, yet it is held that the change cannot be made unless it appears that it is "practicably impossible” to maintain the ditch on the old line. If such be the law, then the mistake of the builders of the original acequia can never be rectified, no matter if the loss sustained by the majority be so great as to well nigh make their lands valueless, and the community for which and by whom the same was built must forever suffer, because, forsooth, the original builders knew nothing of engineering and placed a portion, of the canal on an unfortunate line, unless the whole community of perhaps a hundred or more persons unanimously consent to the change, a thing which is most unlikely to occur. The idea seems to me preposterous. The very name "community ditch,” implies the good of the community as represented by the majority of those in interest, rather than the minority, or the individual. How does the individual land owner, whose only interest in the main ditch is to have his portion of the water carried to some convenient point where it mav be discharged upon his land, acquire a prouerty right to have the main ditch run in any particular place, whether it be on his land or a half mile from it? What is the nature of his property right? The laws of the Territory make every natural stream a. public acequia, and yet the water in that stream may be appropriated, diverted from its natural course and carried elsewhere for irrigation purposes, regardless of the laud owners through, bv, or near whose land it flows. Tenants in common in property are, and of necessity must be governed by the will of the majority as to the control and management of the common property.
A good deal is said in the opinion of the majority in this case of the sanctity of contract and the .confiscation of property; but I insist that no contract existed except that of tenancy in common in the acequia.
"Where a ditch, through which water is diverted and applied' to any beneficial purpose, is owned by several proprietors, and their relation is not defined by special agreement to the contrary, they are to be regarded as tenants in common of the ditch, and their rights are determined and governed by the rules of law regulating tenancy in common.” Kinney on Irrigation, Sec. 301, page 483), citing Bradley v. Harkness, 26 Cal. 69; Jones v. Parsons, 25 Cal. 100; Reed v. Spicer, 27 Cal. 63; Carpenter v. Webster, 27 Cal. 524; Park v. Kilham, 8 Cal. 77; Duryea v. Burt, 28 Cal. 587; Decker v. Howell, 42 Cal. 642; McConnell v. Denver, 35 Cal. 369.
A majority of such tenants in common have the right to control the management of affairs of the ditch. Kinney on Irrigation, Sec..304; Abel v. Love, 17 Cal. 233.
No contractual relations existed, then, between the original builders except those well-defined relations existing between tenants in common in so far as the ditch, the common property, was concerned; and this, it seems to me, answers the questions of sanctity of contract and property rights in the main ditch. If, then, this was the original status of the parties or members of the community, how were such relations affected by the act of the Legislature of February 28, 1895, and the acts amendatory thereto? The first section of that act (qompiled as Sec. 8, C. L. 1897), is as follows:
“All community ditches, or acequias, now constructed, or hereafter to be constructed in this Territory, shall, for the purposes of this act, be considered as corporations, or bodies corporate, with powers to sue 'and be sued as such.”
Then follow various sections relating to the regulation of such ditches, the election and powers of its officers, the assessment of fatigue work, etc., and the commissioners are given general charge and control of all affairs pertaining to such ditches. True, these laws have been from time to time amended, but the act and its amendments all pertain to the regulation and control of such ditches, and defining their rights as such community ditches. To my mind, the legislature had in mind only the general status of such communities; it endeavored to place them on a uniform base, giving them the right to sue and be sued under the community name, without having to join numerous parties; naming officers upon whom service might be made, and reorganizing by legislative enactment rights and relations already existing. I apprehend that no individual in a community ditch existing at the passage of that act acquired any right not already vested in him, or lost any existing right. I do not think that any change as to the relations existing between the members of such community then took place; but rather such act and the amendments thereto are mere regulations of the government of such communities, and fixing their legal status for the convenience of themselves and those having business relations with them.
I agree with the learned justice, who wrote the majority opinion, that no property rights were, or could be, taken away from the community by the legislature; and I go further and say that the tenancy in common of the ditch itself, which existed prior to the act still exists, and the status of the parties remains unchanged.
The answer fully sets up a condition of affairs that was disastrous to the community. It shows that the community was hampered and its interests suffered by reason of the bad location of the main ditch on its original line, that a large majority of the community recognizing that the common property was not accomplishing the purpose for which it was intended, changed a portion of the line so as to overcome the difficulty, and have been demonstrating for some years the wisdom of the change by actually watering all the lands of the community and avoiding the evil and disastrous consequences arising from the attempted maintenance of the old ditch; that no person lost his water right or was even put to any considerable expense by the change; that plaintiffs are not injured by it, and cannot be; and all these allegations are admitted by the demurrer. The only question, then it seems to me. for our decision is this. Can a minority in interest in a community ditch prevent, by injunction, the majority from changing a portion of the ditch from an ill-advised location, which does not and cannot satisfactorily irrigate all the community lands at all times when there is a sufficient water in the stream, to a different locality where the difficulties are overcome and the ditch maintained at much less expense to the community, provided., that no one having a water right is thereby deprived of such right or put to great expense by the change?
To this, it seems to me, there can be but one answer. Neither law nor equity will aid a stubborn minority in preventing the majority from doing an act for the manifest good of the whole community, where no one is injured, but all are benefited. True, equity will, and should, intervene to protect the rights of the minority from abuse by the majority; but upon the answer in this case, as admitted for the purposes of the demurrer, no such condition exists.
In my judgment, the cause should have been reversed and remanded for further proceedings.