Random Thoughts from the High Desert
Written by Sig Silber
The local folks were tired of floods washing out their irrigation works and years with no water. So encouraged by the Homestead Act and the Desert Land Act they organized an irrigation company under the laws of the Territory of New Mexico.
Unfortunately the fate of that Company was to be destroyed by the U.S. Federal Government for good cause or bad cause which is yet to be determined. But the status of the farmers who were taking water from the Rio Grande even before the incorporation of the Rio Grande Dam and Irrigation Company also remains in doubt.
So the question is: Are courts able to resolve issues that date back to 1886 when the first filings for this irrigation company were made and to 1848 when the land was seized from Mexico?
A. Designation of Representatives
1. The Estate of Lupe L. Garcia. Mr. Garcia’s family goes back many generations in the Mesilla valley and his family’s land is located below and is irrigated from the Leasburg Unit with claims to EB under the RGD&IC with water rights vested under the 1887 and 1891 Territorial irrigation laws with a priority date of 1893 and a claim to storage rights through the federal Act of March 3, 1891. Garcia claims both project storage rights and community water rights with a priority date of 1893. Garcia also has domestic wells, but he is not seeking to litigate them in this inter se litigation (ownership includes LRN 28002-0185 A and B).
2. Oscar Butler Vasquez – makes claims to diversion rights derived from the Dona Ana community ditch with a priority date of 1844 and a later alignment to RGD&IC’s Leasburg unit in 1896/1897 with a project priority right of 1893. Butler’s diversion and beneficial use water rights originate on the oldest acequia/ditch in the LRG system with additional project and storage water rights claims to EB and the diversion system derived from RGD&IC with a priority date of January 12, 1893. Mr. Butler also claims a priority date for his supplemental wells is derived from his community ditch under a Templeton Doctrine. Butler also has domestic wells, but he is not seeking to litigate them in this inter se litigation (ownership of farmland includes sub file numbers LRN 28-005-0007 and 28-006-0203A and B).
3. Sammie H. Singh, P.O. Box 5, Chamberino, N.M. 88027, (phone number 915-526-8258). Mr. Singh Jr.’s land is irrigated from the Anthony canal( 1876?) , a diversion in Southern Mesilla that historically received water from the Leasburg Unit (1893-1897) with storage right claims to EB with a priority date derived from RGD&IC of January 12, 1893( See Thompson letter). Mr. Singh also has domestic wells, but he is not seeking to litigate them in this inter se litigation (See map attached for sub file number LRN 280050034).
4. Sammie Q. Singh Sr., also known as Singhco, Inc., P.O.Box 113. La Mesa, N.M. 8804., Mr. and Mrs. Singh’s family’s land is held in the name of Singhco, Inc., a family owned New Mexico corporation that receives surface water from the west side canal with a priority date derived from the San Miguel Community Ditch of 1852 from an alignment with the Westside Canal that has its heading on the original Santo Tomaso Iturbide Community Ditch( pre 1903 on French map), a ditch constructed by the Elephant Butte Realty a company affiliated with Dr. Nathan Boyd and the Rio Grande Dam and Irr company. (See map attached for sub file number LRN 280148002). There appears to be a siphon from RGD&IC’s Leasburg unit for waste water to the west side of the RG at this location on the 1903 French report prior to the West side alignment. Singh also claims Templeton doctrine rights for his irrigation wells that are supplemental to surface water on the Singhco Farm. Singh also has domestic wells, but he is not seeking to litigate them in this inter se litigation.
5. Jonny Diaz, 596 Harlicker Rd., La Mesa, N.M. 88044 and Ed Provencio, Thomas White and Antonia Whittaker and Benjamin Whittaker. 1415 Poplar St., Anthony, TX 79821, also join the designated representatives above through the same legal counsel in making the claims enumerated below. B. Pre 1906 Claimants make a collective claim as tenants in common to project rights vested under the RGD&IC and also project and diversion rights pursuant to N.M.’s territorial laws and common law [See Keeney v. Carrillo, 2 N.M. 480 (1883) and Farmers’ Dev Co. v. Rayado Land and Irr. Co, 28 N.M. 357 (1923)] derived from their predecessors’ beneficial use of water and construction of acequias and community ditches, which rights they claim to share with all other similarly situated Pre-1906 Claimants pursuant to the Territorial Act of Feb. 24, 1887, Section 1 of the Territorial Act of February 26, 1891, and Albuq. Land and Irrig. Co. v. Gutierrez, 10 N.M. 177 (1900). The Designated Representatives share claims with all other Pre-1906 Claimants to project, water, and storage rights derived from RGD&IC with a priority date of January 12, 1893 as tenants in common, Snow v. Abalos, 1914-NMSC-022, ¶8, 18 N.M. 681, 140 P. 1044 (1914), and Candelaria v. Vallejos, 13 N.M. 146 (1905). See Exhibit “A” attached hereto.
In addition, there may be numerous other claimants above and below the Leasburg diversion at Fort Selden who may own and/or claim rights derived from the RGD&IC and who, Claimants believe, share similar rights as tenants-in-common with the Claimants identified herein, similar in kind to those who share a common well with the same point of diversion and priority date. For example, 2/3 of all land in the LRG that was not irrigated in 1893 may claim a project right and priority date for their lands of January 12, 1893, based upon New Mexico’s Relation Back Doctrine, if they claim that their rights derive from the RGD&IC, Rio Puerco Irr. Co. v. Jastro, 19 N.M. 149 (N.M. 1914).
Also, there may be other additional project areas such as irrigators taking water from the Percha diversion and other diversions who derive their claims from the RGD&IC works constructions, applications or published notices and affidavits for its planned system, vesting rights under N.M.’s Relation Back Doctrine that extend to the Elephant Butte Reservoir and from these storage claims vest territorial water rights under the 1887 and 1891 corporation irrigation company laws. If the Leasburg unit was completed in 1896/1897, then Claimants claim that all the project maps, affidavits, notices, and applications and rights filed by RGD&IC for its planned irrigation system to serve the LRG below EBD created a common project right derived from the RGD&IC with a priority date of January 12, 1893 by N.M’s Relation Back Doctrine.
The Leasburg unit was the first and most important segment of RGD&IC’s project, as it provided the connection to all the main community ditches that owned existing diversion rights and was the first well documented completed unit constructed by RGD&IC in its planned irrigation system that included the capture of all the floodwaters of the RG at EB Reservoir. See C.A. Thompson letter to prove historical use of the Fort Selden Diversion Dam prior to any U.S. operation at Leasburg attached hereto and Boyd’s Response to the U.S.’ Motion for Dismissal as Ex. 8-1 through 8-3. Unfortunately, time has stood still for over a century in the determination of ownership of project, diversion, and storage rights in the LRG due to the interference and fraudulent seizure of Claimants’ predecessors rights and works by the U.S. commencing when the U.S. initiated improper litigation to stop RGD&IC’s construction of its irrigation system in 1897, thereby creating Mendenhall claims for all landowners under RGD&IC’s Project.
C. James Scott Boyd is the representative for both his personal rights and as the receiver of the project storage and diversion property rights developed by RGD&IC on behalf of the landowners to store and deliver Pre-1906 Claimants’ historic water through RGD&IC’s irrigation system. Dr. Boyd was the main financier of the farmers’ irrigation system (named RGD&IC) and receiver of the assets of RGD&IC on behalf of its debenture holders upon default and liquidation of the collateral pledged to secure payment of the debentures by RGI&LC, Ltd. in 1900, Rio Grande Irrigation and Land Company, Ltd. v. U.S., Volume VI, 131,138 (1923), Reports of International Arbitral Awards, United Nations.
Thus, Boyd holds the historical claims of the Rio Grande Dam and Irrigation Company on behalf of the farmers and his family who share ownership and collateral interests in common with the farmers in RGD&IC’s Elephant Butte Rio Grande project.
As Representative, Boyd represents two classes of farmers, one who claim diversion project and water rights with a priority date of 1893 through the Leasburg Diversion, and a second class who claim a diversion and water rights through their historic community ditches, whose priority dates predate January 12, 1893. Collectively the two classes also claim project storage rights to EB Reservoir with a priority date of January 12, 1893 through Boyd as the representative and receiver over those project rights claims, including the federal easement, hydroelectric and recreational rights and the federal reservoir storage rights sites number 38 and 39 vested in RGD&IC under the Act of March 3, 1891, that were collateralized to finance the debentures sold in England to finance construction of RGD&IC’s project. Due to lengthy litigation by the U.S. causing the insolvency of RGD&IC and RGI&LC, the collateral securing the indentures was liquidated and the project rights were conveyed to Nathan Boyd in 1900 as receiver for the debenture holders of RGI&LC (“the English Company”), Rio Grande Irrigation and Land Company, Ltd. v. U.S., Volume VI, 131,138 (1923), Reports of International Arbitral Awards, United Nations. As the lender and holder of the collateral/assets of RGD&IC, the Boyd family is willing to convey those project, storage, and diversion rights either back to the farmers or to the district and or the U.S. in exchange for reimbursement of his investment in RGD&IC and assurance that the farmers’ historic rights and priority dates will be recognized and protected and forever held in trust and their historic allotment of water delivered without undue burden for said storage and delivery.
In 1903 the federal government illegally seized the farmers’ storage facility and other project rights i.e. the Leasburg Unit and other works and rights then held as receiver by Boyd in trust for the farmers and as collateral for its loan to RGI&LC, Ltd., including control over the farmers’ historic priority diversion and project rights without compensation. When the U.S. stopped completion of RGD&IC’s main storage facility beginning in 1896 with its Embargo, it held up everyone who had prior vested local community water rights from the use of their rights.
Although the Claimants prior project rights have never been fully adjudicated, the Pre-1906 Claimants claim their diversion and project rights were first recognized in United States v. RGD&IC, 9 N.M. 292, 51 P. 674 N.M (1898) and again in Snow v. Abalos, 1914-NMSC-022, ¶8, 18 N.M. 681, 140 P. 1044 (1914).
It is hoped this proceeding will litigate whether Pre-1906 farmers created historic water diversion and water rights associated with their community ditches and their formation and construction of project rights derived from RGD&IC with a priority date no later than January 12, 1893, (See Exhibit “A”, attached hereto that is prima facie evidence of the farmers’ January 12, 1893 appropriation pursuant to Section 2 of the Territorial Act of Feb. 26, 1891) that created a tenants-in-common interest in all project rights when the farmers merged their ditches into the irrigation system built by RGD&IC in 1897 (See newspaper article dated Dec. 24, 1897). The farmers’ and Boyd’s claim to rights related to the Elephant Butte Storage Reservoir under the federal Act of March 3, 1891 that were the subject of the purported forfeiture action in 1903 are now the subject matter of an appeal pending in the 10th Circuit Court of Appeals and not this court. The State Engineer refuses to modify the hydrographic survey to include Elephant Butte Reservoir. Pre 1906 Claimants will continue their challenge of the fraudulent 1903 forfeiture of their EB easement and seizure of their rights by the U.S. by trespass without just compensation and will fight to adjudicate their historic water rights merged and further developed by RGD&IC in a full and fair trial on the merits.
The Claimants thank this Court for its decision to determine what, if any, diversion, storage, and project rights were vested by Pre-1906 Claimants prior to the federal claims of 1906 or 1903. Pre-1906 Claimants ask this court also to consider amending the complaint to include Elephant Butte Reservoir in this adjudication, because without the inclusion of EB Reservoir this court may lack subject matter jurisdiction to consider ownership of project and storage rights related to EB Reservoir.