State Ex Rel. State Game Commission v. Red River Valley Co.

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] Appellant brought suit for a declaratory judgment against appellee, a corporation, to determine whether or not it could open to the public for fishing and general recreational use that portion of the Conchas Dam reservoir which has been and now is closed to the public use for such purposes.

The lower court held that various contracts which had been entered into by the State of New Mexico, the United States, and The Red River Valley Company precluded the State Game Commission from being able to legally allow the public to go upon the disputed portion of the lake and participate in fishing or any other recreational activities. The lower court further held that the waters involved were not navigable waters, but did hold that they were, in a limited sense, public waters, and therefore not private waters.

The State appealed from this decision on the primary basis that the waters involved are public waters and therefore the public would, when authorized by the State Game Commission, have the right to use such waters for fishing and general recreational purposes; and that they are also navigable waters (an additional method of determining them to be public waters) and that the various contracts involved and hereinafter to be noticed do not deprive the State Game Commission of its power to allow members of the public to make such recreational use. The State is the riparian owner of a portion of the lake area, and public fishing and recreational privileges are enjoyed as to this limited area, and in an additional area wherein the right to use for recreational purposes was specifically given by appellee; and said areas could afford access to all the water without touching appellee's lands; but it does not own any of the land area where the right to fish and boat is now in question.

The suit thus presents the question of the right of the public, when properly authorized by the State Game Commission, to participate in fishing and other recreational activities in the waters in question. The trial court held that the waters of the reservoir were "public waters" only in the sense that they were available for appropriation for irrigation, or like beneficial uses, apparently, and that appellee company had never parted with the fishing and recreational rights on the area of the reservoir involved in this proceeding.

In the year of 1936 the United States, acting through the Army Engineers of the War Department, constructed the Conchas Dam across the South Canadian River, just below its confluence with the Conchas River; and, by means of said dam, created what is known as the Conchas Reservoir, flooding areas in the valleys of both the South Canadian and Conchas Rivers.

Prior to the construction of this dam, appellee was the owner of the Pablo Montoya Grant, confirmed to its predecessors in title by act of congress in the year 1869, embracing some six hundred and fifty-five thousand acres of land in eastern San Miguel County, including the land occupied by the aforesaid dam, and all of the area flooded by the aforesaid reservoir and involved in this suit, including the beds of the Conchas and Canadian Rivers, lying within the exterior boundaries of the grant, except that small portion of the flooded area in the valley of the Canadian River and the Conchas tributary extending outside the boundaries of the grant. Appellee still is the owner of all the said lands within the Pablo Montoya Grant, except as it may have parted with its title by reason of the instruments hereinafter to be referred to. Prior to the construction of the dam, both the Canadian and its tributary, the Conchas River, were perennial streams or rivers, and, according to the court's finding, non-navigable.

On November 13, 1935, in order to facilitate the construction of the dam, appellee entered into an agreement with the Governor of the State of New Mexico, and members of the Interstate Stream Commission of the state, as trustees for the state, whereby appellee agreed to convey to such trustees a certain area in fee simple as the actual site of the proposed Conchas Dam, thereafter constructed, and also an easement to flood and impound water above the dam on a large tract of land owned by appellee. It was made a condition of such contract that the appellee reserved the right "to use the areas affected by this indenture for all purposes not inconsistent with the prior rights of the grantees." This agreement expressly contemplated that all rights so acquired would be at once transferred to the United States, which was done.

On May 8, 1936, appellee executed a further conveyance to the members of the Interstate Stream Commission of the State of New Mexico, as trustees, conveying the right, privilege, power and easement to overflow on account of the construction, maintenance, and operation of the Conchas Dam on the South Canadian River, and to flood and impound water on, and to take and use construction materials from a large area of land, being the same lands as those described in the contract of November 13, 1935. This deed further provided that the easement granted by it is subject to the following reservations and conditions: "Two. The grantor, its successors and assigns, at all times shall have the right to use the area affected by said easement for all purposes not inconsistent with the prior rights of the grantees." The area of the Conchas Reservoir involved in this appeal is included within the area on which the aforesaid easement is granted.

By conveyance, dated May 13, 1936, members of the Interstate Stream Commission, as trustees, conveyed to the United States all rights acquired by the aforesaid conveyance of appellee, dated May 8, 1936, and this conveyance of May 13th was identical with appellee's conveyance of May 8, 1936, so far as the conditions of said conveyance and the rights reserved to defendant are concerned, appellee's conveyance dated May 8, 1936, and the trustee's conveyance to the United States, dated May 13, 1936, being delivered simultaneously. Pursuant to the aforesaid conveyances, the Conchas Dam was constructed by the Army Engineers of the United States.

About the first of January, 1940, the opening of a part of the Conchas Reservoir to fishing and other recreational uses, and the erection of recreational facilities on the banks of said reservoir, were the subject of conferences with the War Department and state officials. And, on January 25, 1940, appellee conveyed to the United States the fee simple title to 640 acres of land situate on the banks of the reservoir, and in the same conveyance conveyed to the United States "the right to use for fishing, boating, bathing, and any other recreational purposes, a limited water area of the Conchas Reservoir within the exterior boundaries of the Pablo Montoya Grant, except that portion thereof lying in the valley of the South Canadian River north of a line" described in said conveyance; and this omitted portion is alone involved in this suit. This conveyance of January 25, 1940 was made subject to the reservations and conditions attached to the grant of flowage easement by the deeds of May 8 and May 13, 1936.

Subsequent to appellee's deed of January 25, 1940 and on May 1, 1940, Congress enacted Public Law No. 504, 76th Congress, 54 Stat. 176, authorizing the Secretary of War to grant to the State of New Mexico for public recreational purposes, an easement for the use and occupation of such lands and water areas so owned or controlled by the United States in connection with the Conchas Dam and Reservoir, as the Secretary of War might deem advisable, and under such terms and conditions as he deemed advisable. Apparently pursuant to said Act of Congress, there has been prepared an easement deed, authorizing the State of New Mexico to use for recreational purposes the area conveyed by appellee to the United States in fee simple by the deed dated January 25, 1940 and also the water area covered by said deed.

This so-called easement deed had not been executed by the Secretary of War at the time of the suit but appellant has entered into possession of the areas described in said deed under a verbal understanding with some subordinate official of the War Department; and the public, under rules and regulations imposed by the state authorities, is now enjoying the recreational and fishing privileges on the Conchas portion of the lake as though the easement deed had been finally executed. The easement deed from the United States to the State of New Mexico is expressly made subject to the reservations and conditions contained in appellee's deed to trustees, of the date of May 8, 1936, and to the provisions, reservations, and conditions in appellee's deed of January 25, 1940, to the United States, but, by its terms only pertains to a restricted portion of the lake not involved in this action.

The contentions of appellee, supported by the findings and conclusions of the trial court, and as they are challenged by appellant in its assignments of error and argument, may be stated briefly under five points, as follows: (1) Prior to the erection of the Conchas Dam, appellee owned the beds and banks of the South Canadian and Conchas Rivers within the Pablo Montoya Grant and had the exclusive rights of fishing therein; (2) the erection of the dam and the impounding of the waters constituting the Conchas Reservoir did not change the situation then existing under which appellee had the exclusive right to fish in the streams; (3) the conveyances executed by appellee passed only a flowage easement, and it retained its fishing and recreational rights in and on the area embraced in these easements; (4) the ownership by the state of the land under a portion of the reservoir extending outside the boundaries of the Pablo Montoya Grant does not give the public the right to fish over the entire area of the reservoir; (5) the United States acquired exclusive jurisdiction over all the rights conveyed by the appellee, and the state has no rights whatever in the premises except insofar as it may claim under the so-called easement deed, and if it can claim under such instrument, it must take subject to all the provisions thereof.

So far as non-navigable streams are concerned, the common law rule, seemingly without exception, is that the one owning both banks of a stream likewise owns the entire bed thereof, the waters are private waters, and the owner has the exclusive right to fish therein. The same rule is sometimes applied to navigable streams, but it is conceded that the weight of authority is, rather, that the bed and waters of a navigable stream are the property of the public with adjoining land owners having no exclusive right to fish therein. See Kinney on Irrigation and Water Rights, 2d Ed., Vol. 1, p. 605, where it is said:

"In fact, under a strict construction of the common-law rule, the right to fish in, or to hunt on certain waters, in the absence of grants or prescription, is in harmony with the ownership of the soil under those waters; if the title to the soil is in the State, the right to fish or hunt is in the public; but, upon the other hand, if the title to the soil is in the riparian owner, he has this right."

See also 36 C.J.S., Fish, § 4, p. 833; 22 Am.Jur., page 682; 24 Am.Jur., page 378; Millspaugh v. Northern Indiana Public Service Co., 104 Ind. App. 540, 12 N.E.2d 396; Griffith v. Holman,23 Wash. 347, 63 P. 239, 54 L.R.A. 178, 83 Am. St. Rep. 821; Herrin v. Sutherland, 241 P. 328, 42 A.L.R. 937; Hood v. Murphy, 231 Ala. 408, 165 So. 219; People v. Truckee Lumber Co., 116 Cal. 397,48 P. 374, 39 L.R.A. 581, 58 Am. St. Rep. 183; Winans v. Willetts,197 Mich. 512, 163 N.W. 993.

Where there is no separation in ownership of soil and water, "the right to hunt and trap from boats on rivers, lakes, streams, etc., is analogous to the right to take fish from the water. As a general rule, the test as to the public right of fowling, hunting, and trapping is the public or private ownership of the soil beneath the waters." 24 Am.Jur. 378.

As to non-navigable streams, argues appellee, our constitutional provision relating to public waters, Art. 16, Sec. 2, to be hereinafter noticed, affords a basis for the exercise of no further rights on the part of the public to use the waters of such streams for fishing and recreational purposes than is the case in other states where the common law rule controls. And, says appellee, the fact that in this jurisdiction riparian ownership does not determine right to beneficial use of the waters of streams, in the conventional sense and as beneficial use is commonly understood, does not compel a different result. But, contends appellant, the common law rule is not here to be applied to use of public waters.

The question of right of use, or trespass upon, the lands of appellee bordering upon the lake area in question is not involved. It is not contended by appellant that such right to use any of the lands of appellee would attend the right to go upon the waters. In fact, appellant disclaims any right, or purpose to so trespass. Access to the waters in question can be had by entry at points on the lake area not owned or controlled by appellee.

If it may be said that the waters in which the right to fish is here in question, are in fact public waters, yet unappropriated, applied to beneficial use by others, it is unimportant whether that is because these waters may now be considered navigable, or for whatever reason the character of public ownership attaches. If they be public, as distinguished from private, or prior appropriated, waters, the contention of appellant must be sustained, and only in this circumstance may it be.

Unless it may be said that appellee had a vested right in the waters so impounded behind the dam, or could, by contract, control their use, the use of the waters, as distinguished from the land up to and under the bed of the streams, or reservoir, no other questions excepting those touching upon the character of the waters as being public or private, and whether use for boating and fishing constitute "beneficial use," i.e. whether such uses properly appertain to unappropriated public waters, need be noticed. We will therefore first determine whether the waters in question are public waters, and, if so, whether the right to use for such recreational and fishing purposes is one of the beneficial uses which appertains to public waters and which cannot, under the circumstances, be reserved as against the state, or the public, as appellee has attempted. Whether the language employed in the document was sufficient to reserve such use even if such reservation could have been made, is another question presented and vigorously argued by appellant. A decision upon such point is not required, however, if it can be said that the waters are public in any event and no exclusive right to use could therefore be retained.

Section 2, Art. 16, of the New Mexico Constitution provides:

"The unappropriated water of every natural stream, perennial or torrential, within the state of New Mexico, is hereby declared to belong to the public and to be subject to appropriation for beneficial use, in accordance with the laws of the state. Priority of appropriation shall give the better right."

Since appellee's title is derived from a congressional act of confirmation, based upon an early Mexican grant, the New Mexico constitutional declaration above noticed could not of course operate to deprive it of any right which may have vested prior to 1911, the date of the adoption and approval of the constitution. But the Attorney General contends, and correctly, we hold, that this constitutional provision is only "declaratory of prior existing law," always the rule and practice under Spanish and Mexican dominion. See Yeo v. Tweedy, 34 N.M. 611, 286 P. 970; Snow v. Abalos, 18 N.M. 681, 140 P. 1044; and as to this prior existing law, see Las Siete Partidas (C.C.H. 1931), part III, Title XXVIII, Law VI, p. 821; Diversion Lake Club v. Heath, 126 Tex. 129, 86 S.W.2d 441; Grubstake Investment Ass'n v. State, 272 S.W. 527, affirmed 117 Tex. 53, 297 S.W. 202; 6 Texas Law Review, p. 524; 7 Texas Law Review 496; 12 Texas Law Review 490; Clough v. Wing, 2 Ariz. 371, 17 P. 453, 456; Maricopa County Municipal Water Conservation Dist. No. 1 v. Southwestern Cotton Co., 39 Ariz. 65, 4 P.2d 369.

The doctrine of prior appropriation, based upon the theory that all waters subject to appropriation are public, "obtained under Mexican sovereignty, continued after the American acquisition, and * * * the sweeping statute adopting the common law, thirty years later (1876), as the rule of practice and decision, did not result in the adoption of rules inapplicable to our conditions, circumstances, and necessities, and subversive of rights long since vested and recognized. United States v. [Rio Grande] Dam Irrigation Co., 9 N.M. 292, 51 P. 674; * * * Albuquerque Land Cattle [Irrigation Co. v. Gutierrez, 10 N.M. 177, 61 P. 357]; affirmed Gutierres v. [Albuquerque] Land Irrigation Co.,188 U.S. 545, 23 S. Ct. 338, 47 L. Ed. 588." Yeo v. Tweedy, supra [34 N.M. 611, 286 P. 972].

Unless it may be said that riparian rights obtain in New Mexico as such rights relate to these water courses, appellee must yield its claim of right to so reserve as against use by the public, and much of the authority in appellee's able and well reasoned brief must be said to be without application. Our courts have more than once spoken clearly upon the subject. Yeo v. Tweedy, supra. And, we are unable to find authority, or justification in reason, to support the claim that the "beneficial use" to which public waters, as defined in this and other jurisdictions, may be put, does not include uses for recreation and fishing.

We have said many times that the Common law doctrine of riparian right was not suited to the region, was never recognized, and did not obtain in this jurisdiction. Albuquerque Land Irrigation Co. v. Gutierrez, 10 N.M. 177, 61 P. 357. See cases last above cited and Snow v. Abalos, supra. And, the judicial declaration "did not make the law; it only recognized the law as it had been established and applied by the people, and as it had always existed from the first settlement of this portion of the country." Snow v. Abalos, supra [18 N.M. 681,140 P. 1048]. The Arizona courts have held to the same effect. Clough v. Wing, supra. And the United States government, as reflected by acts of the Congress pertaining to waters on public lands, has always recognized the validity of local customs and decisions in respect to the appropriation of public waters. Gutierrez v. Albuquerque Land Irrigation Co., 188 U.S. 545, 23 S. Ct. 338,47 L. Ed. 588. It was said by the United States Supreme Court in Broder v. Natoma Water Co., 1879, 101 U.S. 274, 276,25 L. Ed. 790:

"It is the established doctrine of this court that rights of miners, who had taken possession of mines and worked and developed them, and the rights of persons who had constructed canals and ditches to be used in mining operations and for purposes of agricultural irrigation, in the region where such artificial use of the water was an absolute necessity, are rights which the government had, by its conduct, recognized and encouraged and was bound to protect, before the passage of the act of 1866. We are of opinion that the section of the act which we have quoted was rather a voluntary recognition of a pre-existing right of possession, constituting a valid claim to its continued use, than the establishment of a new one. This subject has so recently received our attention, and the grounds on which this construction rests are so well set forth in the following cases, that they will be relied on without further argument: Atchison v. Peterson, 20 Wall. 507 [22 L. Ed. 414]; Basey v. Gallagher, 20 Wall. 670 [22 L. Ed. 452]; Forbes v. Gracey, 94 U.S. 762 [24 L. Ed. 313]; Jennison v. Kirk, 98 U.S. 453 [25 L. Ed. 240]."

"Under the civil law of Spain all those owing allegiance to the crown were equally entitled to the right to fish in the public waters of the kingdom. Such rights were denominated res communes, and considered as res omnium, in respect to their use and benefit but in respect to property as res nullius. * * * Under the laws of this state, the public waters and the fish therein are held by the state for the benefit of the people of the state, subject to such regulation of the use thereof as the lawmaking power may provide. * * *" Ex parte Powell, 70 Fla. 363, 70 So. 392, 396.

"It is quite certain, we think, that the mere fact that the jus privatum, or right of soil, was vested in an individual owner does not necessarily exclude the existence of a jus publicum, or right of fishery in the public." Weston v. Sampson, 8 Cush., Mass., 347, 54 Am.Dec. 764, cited in Moulton v. Libbey, 37 Me. 472, 59 Am.Dec. 57.

"If the title vested in the owner does not necessarily exclude the common right of fishery, that cannot be affected by a title to the soil merely; and the ordinance does not attempt to impart any exclusive right of fishery to such owner." Moulton v. Libbey, supra.

Again we find the Moulton case approving language used by Mr. Justice Thompson, dissenting in Martin v. Waddell's Lessee, 16 Pet. 367, 10 L. Ed. 997, where it is said:

"``The sovereign power itself, therefore, cannot, consistently with the principles of the law of nature and the constitution of a well ordered society, make a true and absolute grant of the waters of the State divesting all the citizens of a common right. It would be a grievance, which never could be long borne by a free people.' * * * no grant of the sovereign power capable of any other should receive a construction that would destroy or impair any right held in trust for the common benefit of the people."

Once we concede that the constitution is merely declaratory of the prior existing law obtaining before New Mexico came under American sovereignty and continuing thereafter, as we have held in the Yeo case, and other cases, and as courts of other states likewise recognize the rule to be, we will have determined that the waters in question are public waters; and we have then narrowed the inquiry to the simple one of whether use for recreation and fishing may be considered as among the uses which usually pertain to public waters. See Siete Partidas, a Spanish Code sanctioned as early as A.D. 1505; Vol. 6 Texas Law Review, p. 524; Diversion Lake Club v. Heath, 126 Tex. 129,86 S.W.2d 441, 447; Vol. 7 Texas Law Review 496.

Upon the question of the general use and right to fish upon and in the public waters under the laws of the Partidas, we take the following language from Farnham's Water and Water Rights, Vol. 1, p. 662, as quoted in the Diversion Lake Club case, supra:

"``By the civil law the public use of the banks of a river was part of the law of nations, just as that of the river itself.' Farnham's Water and Water Rights, Vol. 1, p. 662. One of the laws of the Partidas provides: ``And although the banks of rivers are, so far as their ownership is concerned, the property of those whose lands include them, nevertheless, every man has a right to use them, by mooring his vessels to the trees, by repairing his ships and his sails upon them, and by landing his merchandise there; and fishermen have the right to deposit their fish and sell them, and dry their nets there, and to use said banks for every other purpose like those which appertain to the calling and the trade by which they live.' Las Siete Partidas (C.C.H. 1931), Part III, Title XXVIII, Law VI, p. 821."

Counsel for appellee would distinguish the Diversion Lake Club case. But we are not persuaded that the distinction which they would draw bears the interpretation contended for.

The opinion holds that such waters, being public, and having been impounded from a navigable stream and which overflow upon private lands are, nevertheless, and remain, public waters, and, being such, the right of the public to fish therein without disturbing the terrain in private ownership cannot be denied.

To quote from the opinion:

"When the irrigation company, plaintiff in error's predecessor in title, constructed the dam across the river, it caused by its voluntary act the flood waters of the river, public waters, to spread over the land which it had acquired, submerging and in effect destroying a portion of the river bed, and giving to thepublic waters a new bed. This artificial change in the river and its bed did not affect the public nature of the waters and did not take away the right of the public to use them for fishing." (Emphasis ours.)

To quote further from the Diversion Lake Club case:

"In general it is held that all members of the public have a common right of fishing in navigable streams and all other public waters. The rule is thus stated by Kinney: ``The general rule in this country is that the right of hunting and fishing by all members of the public is not confined to tidal waters, but has been extended to all of the public waters of the country which, as we have seen, are those waters that are navigable in fact.' Kinney on Irrigation and Water Rights (2d Ed.) vol. 1, p. 606. Farnham says: ``The right of fishing in all waters, the title to which is in the public, belongs to all the people in common.' Farnham's Water and Water Rights, vol. 2, p. 1363. * * *

"But it is said that Texas adopted the common law and with it the rule giving to landowners the exclusive right to fish in all nontidal rivers. As has been shown, the rule has no proper application, because of the absence here of the reason for the rule; * * *. However, even if the reason for the rule is disregarded, still it has not been adopted in Texas, because only so much of the common law of England has been adopted as is not inappropriate to the conditions and circumstances of the people and not in conflict with our Constitution and laws." (Emphasis ours.)

The Texas court there held that it was not necessary to decide, and that it did not decide, "whether the rights of the public to use the banks of streams in this state where they are bordered by grants made under Spanish or Mexican sovereignty are in any respect different from the rights of the public herein determined. * * * And no opinion is intended to be expressed as to what use may be made in emergency, or in any other circumstance, of the banks of navigable streams by persons engaged in commercial navigation." And here we do not have before us any question of trespass, and it is not contended that trespass would be permissible upon privately owned lands, or is contemplated. Access to this public water can be, and must be, reached without such trespass.

We likewise recognized the applicability of the ancient law of the Indian as well as the Mexican law in regard to the character and uses to which public waters could be put in this territory, in Hagerman Irr. Co. v. McMurray, 16 N.M. 172, 181, 182,113 P. 823, 824. We there said that "the statute was merely declaratory of the law as it had already been established in this jurisdiction * * *."

To quote further from the opinion as it deals with the doctrine of prior appropriation of public water as this doctrine has been superseded by that of the common law:

"The claim of the appellant that he was entitled, as riparian owner on the Rio Hondo, to have the water, which the appellee was diverting for purposes of irrigation, flow to his land in the channel of the stream is untenable. The doctrine of prior appropriation with application to beneficial use has definitely and wholly superseded the common-law doctrine of riparian rights in many of the jurisdictions in which irrigation is necessary to the growth of crops, and among them is New Mexico. The ``Colorado doctrine', as it is termed, first appears as a dictum in Coffin v. Left Hand Ditch Co., 1882, 6 Colo. 443. It declared that, on the ground of imperative necessity, no settler can claim any right aside from appropriation. The decisions of our courts, which had established that doctrine long before it was adopted by statute, have been approved by repeated decisions of the Supreme Court of the United States. Wiel's Water Rights in the Western States, §§ 23, 24, and cases cited; Keeney et al. v. Carillo, 1883, 2 N.M. 480, 492. * * * Indeed, riparian ownership, as known to the common law, has never, it would seem, been recognized in New Mexico. As pointed out in Gutierres v. Albuquerque Land Irrigation Co., 188 U.S. 545, 23 S. Ct. 338, 47 L. Ed. 588, by the Mexican law in force here at the time the United States acquired the territory, the use of the water of the streams was not limited to riparian lands, but extended to others, subject to regulation and control by the public authorities. And the Mexican law, as well as the law of Indian tillers of the soil, who preceded the Spaniards here, as it may be gathered from the ruins of their irrigation systems, did but recognize the law of things as they are, declaring that such must of necessity be the use of the waters of streams in this arid region."

Navigability, perhaps the earliest test by which the public character of water was fixed, is not the only test to be applied. We do not pause to detail the historical incidents of growing navigation, inland commerce, fishery, and recreation, etc. from which has developed our present law of public waters. At one time, public waters were thought of only as they afforded rights of navigation to the height of tide water; later they were extended to include all clearly navigable streams, and later still, to streams which would be used, not for boats of commerce, but only for the floating of logs and other items of commerce; and, later has come the recreational use where the strict test of navigability earlier applied is less rigidly adhered to. See the following cases and authority on the right of fishery and public waters generally. Nekoosa-Edwards Paper Co. v. Railroad Commission, 201 Wis. 40, 228 N.W. 144, 229 N.W. 631, affirmed283 U.S. 787, 51 S. Ct. 352, 75 L. Ed. 1415; Lamphrey v. State,52 Minn. 181, 53 N.W. 1139, 18 L.R.A. 670, 38 Am. St. Rep. 541; People v. Horling, 137 Mich. 406, 100 N.W. 691; 22 Am.Jur. "Fish and Fisheries", Secs. 8 and 9; Dissenting opinion in Hartman v. Tresise, infra.

Even under the general rule, resting upon the Common law, not here controlling, but which would, likewise, support appellant's position when we can say these are public waters, uses of public water are not to be confined to the conventional ones first known and enjoyed. And, the power of reasonable regulation rests in the state so that not only navigation may be "free to the public" but as well "such other uses as usually pertain to public waters. * * * In fact, navigable waters, in contrast with non-navigable waters, is but one way of expressing the idea of public waters, in contrast with private waters." Nekoosa Edwards Paper Co. v. Railroad Commission, supra [201 Wis. 40, 228 N.W. 147.]

But, we need not here be concerned with the tests required in many of the decisions, the test of navigability. All of our unappropriated waters from "every natural stream, perennial or torrential, within the state of New Mexico" Art. 16, Sec. 2, Const., are public waters. These waters belong to the public until beneficially appropriated. And, since the right to fish inpublic waters, by the test of any rule, is universally recognized it cannot be said that the right to fish and to use these unappropriated public waters in question is less secure in the public because we determine their character as public by immemorial custom, and Spanish or Mexican law which we have adopted and follow in this respect, and under which appellee's predecessors in title to the Pablo Montoya Grant necessarily took.

The case of Hartman v. Tresise, 36 Colo. 146, 84 P. 685, 687, 4 L.R.A., N.S., 872, so much relied upon by appellee, if not to be distinguished as a case in which the narrower issue actually presented should have been decided without a holding on the application of the rule of riparian ownership as to the right of the public to use the water of a stream, the ownership of the bed of which was private, is contrary to what we believe to be the better reason and the great weight of authority. It is to be noticed that in this case there was a special concurring opinion which refused to go along with what was said about the common law of fishery being applicable in Colorado, contending that the simple question of trespass upon enclosed lands was the issue, and upon that issue only need a decision be reached. And, moreover, there is a strong and able dissenting opinion by two members of the court supporting the view we here favor and expressly holding the common law cases which do not recognize separation in ownership as to soil and water to be inapplicable, and showing the general expansion of the public water doctrine. And, as indicative of the doubt which the majority itself might have entertained, we find the opinion placing substantial, if not final, reliance upon the single issue of trespass, where it is said:

"But, if he does, he certainly has no easement over any portion of plaintiff's property, either in the beds of the streams or the adjacent soil, for the purpose of reaching the streams. In the enjoyment of his private property plaintiff is protected, both by federal law and the state Constitution, against encroachment by defendant."

Trespass upon the private land was the issue and the majority, it seems to us, need not have ventured so far afield in its effort to bring support to the holding that such trespass was unlawful. It is important that we read this early Colorado case, the principal one upon which appellee relies, restrained by a clear understanding that it was decided by a divided court, upon an issue much more restricted than the one here involved, and in the light, obviously, of an entire misconception of the true nature of public waters as inherited by us from the early, and continued, Spanish and Mexican law and custom. No notice whatever is taken by the majority in that case of this controlling rule of public water.

But, to quote from the dissenting opinion in the Hartman case, supra, by Bailey and Steele, JJ.:

"It is well settled in this country, as well as in England, that where the title to the bed of a river is in one owner and the title to the water is in another, the right of fishery follows the title to the water. Washburn on Eas. Serv. 566; Jackson v. Halstead, 5 Cow., N.Y., 216; Halford v. Bailey, 8 Q.B. 1000; Malcombson v. O'Dea, 10 H.L. Cases 593; Lee v. Mallard,116 Ga. 18, 42 S.E. 372. While we have not gone to great length in reviewing the many cases bearing upon the right of fishery, a careful study of them will demonstrate two things; that where the land belongs to one party and the water to another, the right of fishery follows the ownership of the water; * * *."

So, if waters flowing in these two perennial streams, the rios Canadian and Conchas, can be said to be public water prior to the construction of the dam, they are no less so after the construction and when a large volume of water from the two streams has been so artificially impounded. Diversion Lake Club case, supra. There must be a diversion and application to beneficial use to constitute an appropriation. And, it cannot be said that these waters have already been appropriated because so impounded, if that would make a difference in the present circumstance. If they had been appropriated by others than itself, then, clearly, appellee would in any event, have no standing to deny appellant's claim to right of use. These waters are not appropriated until application to use has been effected. Millheiser v. Long, 10 N.M. 99, 61 P. 111; Albuquerque Land Irrigation Co. v. Gutierrez, 10 N.M. 177, 61 P. 357; Snow v. Abalos, 18 N.M. 681, 140 P. 1044; Carlsbad Irrigation Dist. v. Ford, 46 N.M. 335, 128 P.2d 1047.

Behind the dam will rest, normally, some 600,000 acre feet of water. Some of this is designed for irrigation below the structure, some 100,000 acre feet is classified as dead storage, and some is impounded for flood control, to be released as waste water as the occasion demands. It is all yet public water until it is beneficially applied to the purposes for which its presence affords a potential use; and as to some of it, as we have said, it is not contemplated that application to beneficial use in New Mexico is to be made at all. "The water in the public stream belongs to the public. The appropriator does not acquire a right to specific water flowing in the stream, but only the right to take therefrom a given quantity of water, for a specified purpose." Snow v. Abalos, 18 N.M. 681, 693, 140 P. 1044.

If the rule contended for by appellee were to obtain we could enjoy no fishing or recreational rights upon much of the public water of this state, although access thereto could be reached without trespass on the privately owned lands of another.

This is not to say that the courts may go back of the congressional act of confirmation and employ Spanish or Mexican law in force at the time to qualify or limit the title to the land which passes to a grantee by the act confirming and patent. H.N.D. Land Co. v. Suazo, 44 N.M. 547, 105 P.2d 744. But we are here dealing with public waters which are constantly flowing through and upon this as upon other privately owned land the title to the fee in which may be as finally and fully established. We must not confuse title to the land with that to water, certainly not to water which was not upon the land when the grant was made or when the confirmation by the Congress was effected; these are waters which have no relation to the land as it is affected by title to the latter. They are waters, which, for the most part, have their source on lands of others, or public lands far away, and are certainly waters "of" a "natural stream, perennial or torrential, within the state of New Mexico." Art. 16, Sec. 2, Const.

It accords with justice and common sense to say that when the United States in 1869 confirmed title to the lands of the grant in question, and when in 1873 it issued its patent thereto, it was not intended that it should, nor did the patent purport to, destroy, or in any manner limit, the right of the general public to enjoy the uses of public waters. Hagerman Irrigation Co. v. McMurray, supra; State v. Tularosa Community Ditch, 19 N.M. 352,376, 143 P. 207; Diversion Lake Club case, supra.

"The doctrine of the Common Law as to the private ownership of the water of public streams no longer exists in this Territory or the mountain states * * * and no longer can there be such athing as private ownership of the water of public streams in thisTerritory." (Emphasis ours.) Albuquerque Land Irrigation Co. v. Gutierrez, 10 N.M. 177, 61 P. 357.

There is no room here left for the operation of the common law. Riparian rights do not obtain. See Boquillas Land Cattle Co. v. Curtis, 213 U.S. 339, 29 S. Ct. 493, 53 L. Ed. 822; Yeo v. Tweedy, supra, 34 N.M. at page 616, 617, 286 P. 970.

Nor can we approve the theory that, even though these be public waters, subject to such appropriation, nevertheless, they cannot be used by the public until appropriated by the public for such use. That would be saying that the public must first appropriate its own property, the very waters reserved to it and which have always "belonged" to it, subject, of course, to being specifically appropriated for private beneficial use.

Opportunities for enjoying general outside recreation, sports, and fishing, are recognized as one of the outstanding attractions of our state, as indeed they are of many of the states. The invitation to enjoy these activities is urgently and constantly extended by this and other states similarly situated, and millions of dollars are spent by tourists from less attractive areas who have come to enjoy them. "Indeed, courts have recognized, and now more than ever before recognize, the public's interest in pleasure and sports as a measure of public health. * * * While the public right may have originated in the older use or capacity of the waters for navigation, such public right having once accrued, it is not lost by the failure of pecuniary profitable navigation, but resort may be had thereto for anyother public purpose. * * * The small streams of the state are fishing streams to which the public have a right to resort so long as they do not trespass on the private property along the banks." (Emphasis ours.) Nekoosa-Edwards Paper Co. v. Railroad Comm., 201 Wis. 40, 228 N.W. 144, 147, 229 N.W. 631. And, under the Civil law, as it pertains to public waters, inherited by us from Mexico with the acquisition of the territory in question, fishing rights of the public always appertained to all public waters. Ex parte Powell, 70 Fla. 363, 70 So. 392; Las Siete Partidas, supra. And, the right of public fishery obtains even under the common law as modified and employed generally in this country, where the ownership of the water is, for any reason, in the public. "Broadly speaking, the rule in this country has been that the right of fishing in all waters, the title to which is in the public, belongs to all the people in common. Farnham on Waters, § 368a." Herrin v. Sutherland, 74 Mont. 587, 241 P. 328,331, 42 A.L.R. 937.

See also 1 Farnham on Waters and Water Rights, 605-7, sec. 136. Our construction of public water uses "was an application not only of the former rule which had obtained under the Mexican law, but was the rule which must, of necessity, be applied by settlers of a country where there were no private titles and each one was at liberty to take possession of what he could find unoccupied." 3 Farnham on Waters and Water Rights, p. 2018, sec. 649.

The doctrine which made all such waters public, and available to the general public until in some manner specifically appropriated to beneficial use, and likewise available for specific appropriation to private use under some system of priority of right, perhaps crude enough at first, has obtained in the Southwest, certainly in the area now comprising this state, for some two or three centuries. And, we would not, without the most compelling reason, now hold that any grant emanating either from the Mexican government when it had authority to grant these lands, or by patent from the government of the United States based upon prior confirmation of a perfect, or imperfect, title from the Republic of Mexico, was intended to effect so complete a deprivation of right of public water use as is here proposed.

Although not raised by counsel for either appellant or appellee, our able associates, in dissenting from the majority holding, themselves suggest the point and argue that since under the statute authorizing the issuance of licenses for hunting and fishing, 1941 Comp., Sec. 43-301(9), it is provided no such holder of licenses shall hunt or fish "upon any park or enclosure licensed or posted as provided by law, or within or upon anyprivately owned enclosure without the consent of the owner * * *" (emphasis ours) the legislative intention is thus made clear that hunting and fishing on these public waters is not authorized if such waters be enclosed.

In answer to this argument, all that need be said is that, in the first place, there is no showing whatsoever that these waters in question, covering hundreds of acres in area at, and above, the site of the dam, are enclosed, if, indeed it would be physically possible to enclose them; and, moreover, one does not make of a fenced-in area "a privately owned enclosure" merely by extending the physical markings to cover property not one's own. For example, a public park, a highway, another's land, or the waters which "belong to the public" would not become a part of a "privately owned enclosure" simply because they were enclosed by an adjoining owner. The property of the public is not converted into private property by any such simple method. This licensing provision is nothing more than the ordinary regulatory statute for fishing and hunting, exercised under the conventional police power and common to all the states.

In view of this newly injected issue, one neither submitted to the lower court nor in any way relied upon by appellee there, or here, if we were permitted under such circumstances to examine the question at all, we would inquire: How is the minority to overcome the constitutional barrier presented by Art. 4, Sec. 26? This section reads:

"The legislature shall not grant to any corporation or person, any rights, franchises, privileges, immunities or exemptions, which shall not, upon the same terms and under like conditions, inure equally to all persons or corporations; no exclusive right, franchise, privilege or immunity shall be granted by the legislature or any municipality in this state."

Would not this involve the granting of a special "right" or "privilege" contrary to this provision of the Constitution?

As is pointed out by the text writers upon Fish and Fisheries, grants for exclusive fishery may be permitted only in states where the legislature is not faced with such constitutional prohibitions. See 22 Am.Jur. "Fish and Fisheries," pp. 674, 675, Sections 11 and 12, and cases therein cited. The case of Hume v. Rogue River Packing Co., 51 Or. 237, 83 P. 931, 92 P. 1065, 96 P. 865, 31 L.R.A., N.S., 396, 131 Am. St. Rep. 732, is a well reasoned case in support of this proposition.

"A construction of a grant which would allow the Crown to destroy or diminish a common right of that nature is to be rejected, unless such intention is so clearly and fully expressed that the grant is incapable of any other reasonable construction. In the same way, assuming the power of a state legislature to grant a several right of fishery, a statute will not be construed to grant a privilege so repugnant to the common rights of the people unless its language clearly required such a construction, and the intent to convey such rights is clearly expressed. In the United States, the right of ownership of the soil and the right of fishing in the waters thereover are not necessarily coextensive * * *". 22 Am.Jur. 675, sec. 11.

And, even under circumstances where there is no such constitutional restriction against the grant of special rights and privileges, i.e. in the few states where the legislature might constitutionally make such exclusive grant, even then such grants are not "looked upon with favor," and the burden is on the one claiming the exclusive right of fishery to show compliance with the statute. See sec. 11 of 22 Am.Jur., supra; Tinicum Fishing Co. v. Carter, 61 Pa. 21, 100 Am.Dec. 597.

Much of the reasoning supporting the minority's view as expressed by the dissents must rest upon the thoroughly unsound idea that the majority holding opens wide the opportunity for trespass upon the lands of all riparian owners, in every class of stream; that with every such perennial or torrential stream carrying unappropriated public waters would go a right to trespass as against the owner over whose lands such water flowed, if that be necessary to reach such public waters. Of course, no such result follows from the majority holding, which deals specifically, and only, with these impounded public waters, easily accessible without trespass upon riparian lands.

If it were the intention that these waters should have been public only in the sense that they could be diverted from the natural channel through specific appropriation for irrigation, mining, and other beneficial uses, apt language could have been employed in the early, and successive, legislative enactments as well as in the constitutional declaration upon the subject. We find no place for a narrow construction of the language whereby waters are declared "to belong to the public" and to say: "The waters belong to the public only so far as they are subject to diversion from their natural course."

"The water in the public stream belongs to the public. The appropriator does not acquire a right to specific water flowing in the stream, but only the right to take therefrom a given quantity of water, for a specified purpose." (Emphasis ours.) Snow v. Abalos, supra.

We are asked to strike down the long established rules pertaining to public water ownership and uses because we have not yet been called upon to apply it to this particular beneficial use. "If the same principles justify * * *," we said in Yeo v. Tweedy in applying the Mexican, or Civil law as distinguished from that of the Common law, to subterranean waters, "it does not matter that earlier occasion has not arisen to apply them."

It may be said that courts have sometimes given a forced construction to laws, or long standing customs, in order to maintain them; but they will not do this in order to destroy them. We know of no reason why we should restrict the use of waters which belong to the public only to the uses which have, up to this time, been adjudicated by our court as "beneficial." See Empire Water Power Co. v. Cascade Town Co., 8 Cir., 205 F. 123,128.

We hold that the waters in question were, and are, public waters; and that appellee has no right of recreation or fishery distinct from the right of the general public. And, no element of estoppel, urged by appellee, is presented by the record. The right of the public, the state, to enjoy the use of the public waters in question cannot be foreclosed by any circumstances relied upon. It cannot be said that such fundamental public rights may be forfeited simply by failure of some public official, at some particular time, to recognize that such rights exist and to insist upon their observance; or, even by his assumption that no such rights exist. We attach no importance to the failure of certain state officials, members of the State Game Commission, to press for recognition of the public right of fishery in the waters in question at the time they were negotiating in respect to this, and to other areas.

All other questions raised become unimportant in view of our holding that the water area in question constitutes public waters of the State of New Mexico and is subject to the jurisdiction of the State Game Commission so far as the uses here involved are concerned.

For the reasons stated the trial court was in error in holding that appellee was entitled to enforce the restrictions complained of, it having no such exclusive privilege to the use of the public waters as claimed. The judgment is therefore reversed with direction to enter judgment for appellant, all in conformity with this opinion; and it is so ordered.

BRICE and LUJAN, JJ., concur.