Semidey v. Central Aguirre

HAMILTON, Judge,

delivered tbe following opinion:

Tbe decree and mandate of tbe court of appeals decrees as followá': “Tbe decree of tbe district court declaring Gonzalez’ use of tbe Lapa water to be a legal use is vacated. In all other respects it is affirmed.”

1. If tbe word “legal” is construed as declaring tbe right to tbe use of tbe water, it would be improper, in the'depree of tbis court, because tbis is a suit between private parties to wbicb tbe public authorities were not parties, and therefore it would be improper to make an abstract declaration wbicb would quiet tbe title as against tbe public in general and tbe insular government in particular. Tbis would seem to be tbe way in wbicb tbe court of appeals construed tbe word “legal.” Tbe better word to use in tbis connection would be the word “proper,” instead of “legal,” and this was in tbe mind of tbis court.- It is not thought that tbe decree of. tbe court of appeals is inconsistent with a view of tbe facts wbicb makes tbe right of Gonzalez to use tbe water a proper use as between tbe parties to this case, provided, as will be found declared in other parts of tbe evidence and opinion, be does not use more than tbe share of tbe water which be brought into tbe canal higher up.'

2. The court of appeals, in tbe decree, says nothing about enjoining tbe use of tbe water by Gonzalez, and in tbe opinion it goes on to say that “tbe upper court finds only that tbe part of tbe decree which declares Gonzalez’ use to be legal should be vacated to tbe end that tbe plaintiffs’ prayer for an injunction in a pending suit may be available to them if, under present or subsequent conditions, the situation should be such that tbe use should be terminated or-regulated by injunction, and as to what should be done through such an instrumentality it expresses no opinion.”

Tbe theory upon wbicb tbis court proceeded in tbe decree in question was that Gonzalez, by repairing the old Lapa inlet, bad added a certain quantity of water to tbe stream in the main canal, and tbat tbe plaintiff bad no ground of complaint if be took from tbe canal below a corresponding amount of water. We do not understand tbat tbe upper court takes any other view of tbe case; but inasmuch as tbe case now remains on tbe docket over a year after tbe decision of this case, April 10, 1915, this court should have the right and perhaps the duty to ascertain whether conditions have changed so. as to make tbe use of this water improper for any reason.

It seems right therefore to investigate this point, and tbe matter is 'referred to tbe marshal of this court as a special master to investigate with tbe aid of such technical experts as be deems proper, and report to tbe court. (1) Whether tbe water taken by Gonzalez from tbe main canal at tbe point indicated in tbe pleadings and decree in this case exceeds what comes into tbe canal by tbe Lapa intake which be repaired at a point above, making allowance for evaporation, seepage, and anything else which might make a smaller taking of water proper. (2) Ascertain and report any facts arising since April 10, 1915, or any existing conditions which cause tbe present use of water by Gonzalez to interfere with tbe water rights of plaintiff. (3) If tbe water so taken by Gonzalez exceeds tbe amount indicated, then tbe master will report to tbe court what means are proper to diminish tbe amount going into tbe Gonzalez canal so as to reduce it strictly to what Gonzalez should take as above outlined.

Until this report comes in and is disposed of, tbe case will remain as at present, and tbe application for an injunction is continued to await tbe result of tbe above investigation.

Tbe ground of this procedure on the' part of tbe court is tbat tbe plaintiff is entitled only im a certain portion already declared of tbe water wbicb would be in tbe canal if tbe Lapa water bad not been, added, and if be is obtaining that amount be is not concerned wbetber other water is brought into and taken out of tbe canal or not.

It is so ordered.