{
  "id": 727653,
  "name": "DEAF SMITH COUNTY GRAIN PROCESSORS, INC., Plaintiff-Appellee, v. David DIXON, Defendant-Appellant",
  "name_abbreviation": "Deaf Smith County Grain Processors, Inc. v. Dixon",
  "decision_date": "1993-10-12",
  "docket_number": "No. 13311",
  "first_page": "523",
  "last_page": "525",
  "citations": [
    {
      "type": "official",
      "cite": "116 N.M. 523"
    },
    {
      "type": "parallel",
      "cite": "864 P.2d 812"
    }
  ],
  "court": {
    "name_abbreviation": "N.M. Ct. App.",
    "id": 9025,
    "name": "Court of Appeals of New Mexico"
  },
  "jurisdiction": {
    "id": 52,
    "name_long": "New Mexico",
    "name": "N.M."
  },
  "cites_to": [
    {
      "cite": "22 Nat. Resources J. 1045",
      "category": "journals:journal",
      "reporter": "Nat. Resources J.",
      "year": 1982,
      "pin_cites": [
        {
          "page": "1047",
          "parenthetical": "footnotes omitted"
        }
      ],
      "opinion_index": 0
    }
  ],
  "analysis": {
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    "simhash": "1:b07ec32b4b0b3e72",
    "word_count": 1115
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  "last_updated": "2023-07-14T22:33:33.360967+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [
      "MINZNER, C.J., and DONNELLY, J., concur."
    ],
    "parties": [
      "DEAF SMITH COUNTY GRAIN PROCESSORS, INC., Plaintiff-Appellee, v. David DIXON, Defendant-Appellant."
    ],
    "opinions": [
      {
        "text": "OPINION\nHARTZ, Judge.\nThis appeal requires us to decide whether the district court had authority to determine whether Plaintiff-Appellee, Deaf Smith County Grain Processors, Inc. (Deaf Smith), acquired an easement by continuous use of a ditch for irrigation purposes, see NMSA 1978, \u00a7 73-2-5, or whether the matter must first be decided by the State Engineer. We hold that the district court had jurisdiction to decide the matter because there was no showing that the use of the ditch in this case changed the place of diversion, storage, or use of appropriated water. See NMSA 1978, \u00a7 72-5-24 (Repl.1985).\nThe controlling facts are not disputed by the parties. The Defendant-Appellant, David Dixon (Dixon), and Deaf Smith own neighboring ranches with irrigation rights on the Dry Cimarron River System. The dispute centers on two ditches off the Dry Cimarron River \u2014 the Escondido Ditch and the Beheimer Ditch. The ditches are roughly parallel, with the Beheimer south of the Escondido. The headgate of the Beheimer is downstream from the Escondido headgate.\nDeaf Smith is the sole user of the Escondido for irrigation. Dixon and Deaf Smith both use the Beheimer. Rights to use the Beheimer for irrigation were established by a decree that provides a priority date of 1919. Rights to use of the Escondido have a 1929 priority date pursuant to, a license issued by the State Engineer to Deaf Smith\u2019s predecessor in 1930. Some time prior to 1945 Deaf Smith\u2019s predecessors in interest constructed a lateral ditch from the Escondido to the Beheimer for the purpose of irrigating a field south of the Beheimer with water from the Escondido. The irrigation is accomplished by opening headgates on the Beheimer, which allows water to flow into the Beheimer from the lateral and then flow out of the Beheimer onto the field.\nOn August 2, 1989, Deaf Smith filed suit against Dixon, alleging that Dixon had interfered with Deaf Smith\u2019s irrigation of the field south of the Beheimer with water from the Escondido by closing headgates on the Beheimer which needed to be opened to accomplish the irrigation. The pertinent portion of the Beheimer lay on Dixon\u2019s property. After a non-jury trial the district court ruled in favor of Deaf Smith, determining that Plaintiff had a right to use the Beheimer to transport water from the Escondido and that Dixon should be permanently enjoined from interfering with such transportation of water in the Beheimer.\nThe district court\u2019s findings support Deaf Smith\u2019s right to use the ditch pursuant to Section 73-2-5, which reads in pertinent part:\n[I]n all cases where there has been a continuous use of a ditch for the purposes of irrigation, for five years, it shall be conclusively presumed as between the parties, that a grant has been made by the owners of the land, upon which such ditch is located, for the use of the same.\nDixon does not challenge the sufficiency of the evidence to support the findings upon which application of Section 73-2-5 is based. Rather, Dixon contends that the judgment (1) allows Deaf Smith to appropriate water in violation of Dixon\u2019s prior rights and (2) effects changes in the use of appropriated water without prior approval of the State Engineer. We disagree.\nWith respect to Dixon\u2019s first contention, the district court specifically ruled that it was not deciding any question regarding water rights. Moreover, Dixon\u2019s answer did not contain an affirmative defense or counterclaim asserting that Deaf Smith was using water for which Dixon had a prior right. Nothing in the judgment precludes Dixon from pursuing a violation by Deaf Smith of Dixon\u2019s rights under the decree and license which govern the Beheimer and Escondido ditches with regard to priority and quantity of water.\nAs for the second contention, we recognize the broad powers of the New Mexico State Engineer. In the words of one authority, \u201cNew Mexico law charges the State Engineer with the duty of administering all matters relating to the appropriation, transfer, and distribution of water. The State Engineer must approve all new appropriations of water for beneficial use as well as changes in the place or manner of existing uses.\u201d Charles T. DuMars, New Mexico Water Law: An Overview and Discussion of Current Issues, 22 Nat. Resources J. 1045, 1047 (1982) (footnotes omitted).\nYet Dixon has failed to show us what act of Deaf Smith required approval of the State Engineer beyond the license and decree granting Deaf Smith\u2019s water rights. Nothing in Section 73-2-5 suggests that a determination of rights under that statute is to be made by the State Engineer rather than by the district court. Section 72-5-24 provides that a water user needs the State Engineer\u2019s approval to change the purpose for which the water is appropriated or to change the place of diversion, storage, or use. But Dixon acknowledges that Deaf Smith did not change the place of diversion and makes no claim regarding storage. That leaves only Dixon\u2019s claim regarding a change in the use of the water. Yet Deaf Smith\u2019s license appears to permit use of water from the Escondido to irrigate the land that it is irrigating by use of the lateral ditch from the Escondido to the Beheimer. More importantly, Dixon has failed to establish any use of water by Deaf Smith not permitted by the decree and license governing the two ditches. Even if the lateral ditch did not exist when the State Engineer issued the license to Deaf Smith\u2019s predecessor for use of water through the Escondido, we do not view a change in the vehicle of transport of water for a particular use to constitute a change in the use of water within the meaning of Section 72-5-24, at least in the absence of a provision in a decree or license mandating a specific means of transport.\nBecause Dixon has failed to show that the district court authorized any conduct that required further approval by the State Engineer, we hold that the dispute in this case was properly before the district court. The judgment of the district court is affirmed.\nIT IS SO ORDERED.\nMINZNER, C.J., and DONNELLY, J., concur.\n. Section 72-5-24 states in full:\nAn appropriator of water may, with the approval of the state engineer, use the same for other than the purpose for which it was appropriated or may change the place of diversion, storage or use in the manner and under the conditions prescribed in Sections 72-5-3 and 72-5-23 NMSA 1978.",
        "type": "majority",
        "author": "HARTZ, Judge."
      }
    ],
    "attorneys": [
      "Charles D. Alsup, Alsup Law Office, Clayton, for plaintiff-appellee.",
      "Robert S. Skinner, Raton, for defendant-appellant."
    ],
    "corrections": "",
    "head_matter": "864 P.2d 812\nDEAF SMITH COUNTY GRAIN PROCESSORS, INC., Plaintiff-Appellee, v. David DIXON, Defendant-Appellant.\nNo. 13311.\nCourt of Appeals of New Mexico.\nOct. 12, 1993.\nCharles D. Alsup, Alsup Law Office, Clayton, for plaintiff-appellee.\nRobert S. Skinner, Raton, for defendant-appellant."
  },
  "file_name": "0523-01",
  "first_page_order": 557,
  "last_page_order": 559
}