233 F. 208 | 1st Cir. | 1916
In this case the plaintiffs ask for judgment and a perpetual injunction, and we have to consider the water rights of owners whose lands border upon the waters of the Guayanilla river, in Porto Rico.
The questions raised by the record do not relate to any supposed natural rights of riparian owners, but, with the single exception of a question of right by user, to rights based upon government concessions or franchises.
The questions of law and fact have been passed upon by the two local courts of Porto Rico, and while those courts were not created in the same way that the courts of our states were (the local District Court being appointed by the Governor with the advice of the executive council, the Governor having been appointed by the President with the advice and consent of the Senate, and the Chief Justice and the associate justices of the Supreme Court of Porto Rico having been appointed by the President with the advice and consent of the Senate, under the Act of Congress of January 28, 1915, U. S. Stat. at Large, vol. 38, p. 803, c. 22, annexing Porto Rico to the First Circuit), we accept the case and deal with it upon the same theory as that upon which the Supreme Court of the United States accepts and deals with cases coming up upon appeal from decisions of the highest courts of our various states.
The property of the defendant, succession of Bias Rodriguez, is in the ward of Jagua Alta, with one of its sides bordering upon the river, above the properties of the plaintiffs.
Cane is the principal product of all the properties in question, and there was a factory, or factories, on some of the properties. It is understood that the waters were taken from the river by the contending parties chiefly for purposes of irrigation, though it appears from the record that some part of it was used in connection with the running of the Rufina factory.
We do not understand that any substantial part of the water taken from the river was turned back into its channel; the water being used, for purposes of irrigation, was absorbed by the earth. This being so, the case does not present questions like those raised by riparian owners who under a right, which is pretty nearly a natural right in certain jurisdictions, may take water from rivers for manufacturing purposes, returning it to the channel without substantial diminution, that it may be used in turn by riparian owners below. Nor does it present questions altogether like some of those raised and decided in respect to the waters of the rivers of our Western states, where waters are diverted in some instances under riparian rights, and in others under
It was probably not the rule of Porto Rico, under the civil law, that a riparian owner might divert the entire waters of a public river, or that he might acquire a right to do such a thing by user, neither was it the common law that such a thing might be done. Water rights under our common law and statutory system depend largely upon the character of the river, character of adjacent lands, and the uses to which the waters are adapted and may be appropriated.
We assume that the river in question was one of a public character in the sense that its size was such as to make it subject to certain phases of public consideration. Indeed, the plaintiffs’ position in respect to user and prescriptive right is based in one phase, upon article 149 (Rev. St. & Codes 1913, § 2535), of the Statutes and Codes of Porto Rico, in force March 9, 1911, which relates to public waters.
In 1907, the Executive Council conceded to Blas Rodriguez the right to take 40 liters per second from the waters of the River Guayanilla, and in 1908 the Executive Council granted to the plaintiff, under certain reservations, the right to take 183% liters per second. Both of these grants or concessions were without prejudice to greater rights, and that of the plaintiffs had reference to relative rights.
The plaintiffs’ broad contention is that they held old concessions supplemented by user, which gave them prior and superior rights, and if they failed to establish this, that they were at least to have the 183% liters under all conditions if there was that much water in the river.
The local courts treated their old concession as not definitely proven, and their asserted right by user was not accepted as established, and, ,therefore, in effect, not within the meaning of article 190 of the Law of Waters (Rev. St. & Codes 1913, § 2576); and they viewed their later concession of 1908, which was without prejudice to prior rights, as not so far absolute, in the equitable sense, as to give them the 183% liters under all conditions of water, regardless of the 40 liters conceded to Blas Rodriguez in 1907, on the river above.
If the plaintiffs’ contention were to be broadly sustained, it would give them the entire use of the waters of the river at certain; seasons and under certain drought conditions when the water is most needed by all.
It is to be supposed that the statute in question would not authorize an acquirement of the exclusive right to all the waters of a public river in one single ownership, under the doctrine of user. This, apparently, was the view of the Supreme Court of Porto Rico, and we think it the correct view.
The real question in the case relates to the quantity of water which the defendant may take from the Guayanilla river, and, while that is the immediate question, it is, of course, one subject to being influenced by the rights and uses of the plaintiffs in the waters of the river below.
The plaintiffs’ claim is based upon the idea that they are entitled to have the exclusive right of all the waters of the river when needed for their purposes, and that they have this right either through the doctrine of user, or under their franchises or concessions.
The Porto Rican courts, after rejecting the idea of exclusive right by user, dealt with the controversy as one involving relative rights under concessions or franchises granted by the Porto Rican authorities. Whether this local view was originally based upon the idea of the civil law, or not, is quite immaterial, because it does not conflict at all with the law which obtains in some of our states and territories in respect to irrigation, and because under our system the right to take water and use it for purposes of irrigation is subject to regulation by the proper authorities.
The parties to this controversy, the administrative authorities, and the courts as well, apparently accepted the authority to grant concessions and franchises, authority formerly exercised by the Minister of the Interior and now by the Executive Council, as administrative and regulatory, and regulations thereunder, as in no sense conclusive of the rights of the parties; obviously deeming controversies as»to ultimate substantive rights, in respect to waters, as something for judicial investigation and determination.
This is true as to the parties, because they both went before the administrative authorities to have the quantity of water regulated, and the plaintiffs, Trujillo & Mercado, not being satisfied with the uses made by the defendant, succession of Bias Rodriguez, instituted a proceeding in court, setting forth the full measure of their rights as they claimed them, and asking for an injunction.
The local courts of Porto Rico disposed of one phase of the case upon the ground that the old concession as claimed by the plaintiffs was not proven, and under their interpretation of the statutes that the plaintiffs had utterly failed to establish an exclusive right to the waters of the river.
It is quite reasonable to assume that the conclusion of both the District and Supreme Courts, under their interpretation of the local statutes and the concession or franchise granted to the defendant, involved a finding of fact that the uses exercised by him upon the river above were not so far unreasonable, when viewed relatively with respect to the rights of the plaintiffs upon the river below, as to justify a judgment and perpetual injunction against him.
Under the well-recognized rule which obtains in this court, in respect to findings of fact coming up from the federal District Courts, and which is supported by numerous decisions not necessary to cite, and under the rule existing in the Supreme Court that findings of fact in courts below will not be disturbed upon review unless found to be clearly erroneous, we see nothing in the record and evidence which would justify us in reversing the conclusion of the two local courts of Porto Rico. On the contrary, the situation would seem to be such that it would be inequitable to grant an injunction which would give the landowner below the exclusive use of the waters of the river at a
“The rule is well settled that a finding of this nature will not be disturbed upon review here unless clearly shown to be erroneous.” Bank of Athens v. Shackelford, Trustee, 239 U. S. 81, 36 Sup. Ct. 17, 60 X. Ed. 158.
See, also, Villanueva v. Villanueva, 239 U. S. 293, 36 Sup. Ct. 109, 60 L. Ed. 293; Washington Securities Co. v. United States, 234 U. S. 76, 78, 34 Sup. Ct. 725, 58 L. Ed. 1220; Stuart v. Hayden, 169 U. S. 1, 14, 18 Sup. Ct. 274, 42 L. Ed. 639.
We think the affidavit of José Trujillo Piza, against which no counter affidavits were directed, should be accepted as establishing the amounts or values in controversy sufficient to create the right of appeal.
The judgment or decree of the Supreme Court of Porto Rico is affirmed, and the appellee recovers costs of this appeal.
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