ULIBARRI V. HAGAN, 1982-NMSC-101, 98
N.M. 676, 652 P.2d 226 (S. Ct. 1982)
GILBERTO ULIBARRI and ISABELLE ULIBARRI,
his wife,
Plaintiffs-Appellees,
vs.
THOMAS HAGAN and LENORA HAGAN, his wife,
Defendants-Appellants.
SUPREME COURT OF NEW MEXICO
1982-NMSC-101, 98 N.M. 676, 652 P.2d 226
Appeal from District Court Catron
County, Paul Marshall, District Judge
Motion for Rehearing Denied October 4,
1982
Bruce C. Redd, Albuquerque, New Mexico,
for Appellants.
Steven Hernandez, Las Cruce, New Mexico,
for Appellees.
Payne, J., wrote the opinion. WE CONCUR:
MACK EASLEY, Chief Justice, DAN SOSA, JR., Senior Justice.
{1} The Ulibarris brought
this suit seeking an adjudication of water rights in a certain spring and an
ejectment of the Hagans from the land on which the spring was located. The
Hagans counterclaimed asking for a determination that they owned both the land
and the water rights in the spring. The jury found that the Hagans owned the
land and judgment was entered accordingly. That portion of the judgment is not
challenged. On the issue of water rights, the court determined that ownership
was irrelevant because the predecessors of the parties had entered an agreement
to share the water. The court imposed a trust on the water rights for the use
of both parties. The Hagans appeal from the imposition of this trust.
{2} During the trial, the
Ulibarris moved for dismissal of that portion of the suit which involved a
determination of the water rights. In support of the motion, the Ulibarris
referred to a prior suit,
State ex rel. Reynolds v. Acosta, Grant County
District Court No. 16,610 (September 3, 1968), in which water rights in the
Reserve Area of the San Francisco River Stream System had been determined. The
spring at issue in the present case was not included in the original judgment
in the
Acosta case, but was considered in a subsequent order nunc pro
tunc which supplemented the original order and granted the water rights in the
spring to the Hagans' predecessor. The Ulibarris claimed that although Gilbert
Ulibarri was joined as a defendant in the original
Acosta suit, his wife
Isabelle was not, and that neither of the Ulibarris was given notice of the
motion which resulted in the order nunc pro tunc. The Ulibarris' motion
{*677} to dismiss in the present case asserted
that the Grant County court retained exclusive jurisdiction of the adjudication
of water rights in the basin involved, and that any adjudication of water
rights in the case at bar would be of no force and effect. The Hagans also
moved for dismissal. The trial court denied these motions because it considered
ownership irrelevant in light of the above agreement.
{3} The fundamental question
here is whether, once an adjudication of water rights by one district court has
been made, a separate district court may subsequently impose a trust on the
water rights granting rights not recognized by the original court. Our
conclusion is that it cannot.
{4} Section
72-4-17, N.M.S.A.
1978, states in part:
In any suit for the determination of a right to use the
waters of any stream system, all those whose claim to the use of such waters
are of record and all other claimants, so far as they can be ascertained, with
reasonable diligence, shall be made parties.... The court in which any suit
involving the adjudication of water rights may be properly brought shall have
exclusive jurisdiction to hear and determine all questions necessary for the adjudication
of all water rights within the stream system involved....
{5} The broad language in
this statute specifies that
all questions necessary for the adjudication
of
all water rights must be heard and determined in the court in which
the suit is brought. The
Acosta case involved the stream system in which
the spring apparently lies. Therefore, only the district court in Grant County
may hear and determine any questions relating to water rights to this spring.
Consideration of the prior agreement to share the water rights, which was the
basis for the court's imposition of a trust, involved a question relating to
water rights under Section 72-4-17. By hearing questions relating to the water
rights in a stream system which had been adjudicated in the Grant County court,
the court below deprived the Grant County court of its exclusive statutory
jurisdiction.
{6} The record in this case
does not conclusively demonstrate that the spring was part of the stream
system. Because the district court ruled that the ownership of the water rights
was irrelevant to this case, it did not admit evidence of that ownership. The
Ulibarris' motion indicates that the spring was part of the San Francisco River
Stream System. If the Grant County court determined that the spring was part of
the stream system, then the Grant County court would retain jurisdiction over
the spring. We have previously held that the procedure for adjudication of
water rights is all-embracing, and that it includes all claimed rights of
appropriators from artesian basins within a stream system.
State v. Sharp,
66 N.M. 192,
344 P.2d 943 (1959). However, we have also held that waters from
springs which sink in the soil rather than flow in a natural channel are not
subject to appropriation.
Burgett v. Calentine, 56 N.M. 194,
242 P.2d
276 (1951). Before the district court can dismiss on the basis that the Grant
County court has exclusive jurisdiction, it must be satisfied that a prior
order actually was entered declaring that the spring is part of the "stream
system involved." Accordingly, we remand for a determination of this
issue, with directions to grant the motions to dismiss if such an order was
entered at some point in the
Acosta case.
{7} The judgment is affirmed
in part and stayed in part pending a determination by the district court of
whether a prior order by the Grant County court declared the spring to be part
of the stream system; if it did, the judgment is reversed with directions to
dismiss that portion of the suit involving the determination of water rights.
WE CONCUR: MACK EASLEY, Chief Justice, DAN SOSA, JR., Senior
Justice.