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Show PUEBLO WATER RIGHTS IN NEW MEXICO 161 which had vested in the pueblo with a priority date of 1835, prior and paramount to any rights of the plaintiffs, and that the right of the defendant company under its franchise was a complete defense to the action.70 On the appeal the supreme court, before considering the applicability of the pueblo rights doctrine, disposed of two other major questions. Briefly: (l)The "Hope decree," entered in a cause in the United States District Court,71 was adjudged to be not resjudicata as to the defendant Public Service Company and the intervenor Town of Las Vegas, and thus it did not bar the defense of pueblo rights.72 (2) The trial court was not in error in Finding that the claimed earlier title of certain plaintiffs was inferior to those of defendant and intervenor.73 (3) The third basic question-the one of general interest and concern-was thus phrased by the New Mexico Supreme Court: "Are we entitled to apply the doctrine of Pueblo Rights, as known and recognized in California in the State of New Mexico?"74 The supreme court thought it not surprising that such a doctrine arose, when it is considered that these colonization pueblos were generally established before there was any settlement of the surrounding area-hence no prior appropriation of water nor allotment of lands by the Mexican Government prior to establishment of the pueblo.75 But note that in two dissenting opinions, Judge Federici asserted and explained in considerable detail the "fatal factual error" of the majority in stating that "A new, undeveloped and unoccupied territory was being settled. There were no questions of priority of use when a colonization pueblo was established because there were no such users." [Emphasis added.] The facts in the case and history itself, he said, show that there were settlers on the Gallinas River long before the grant to the Pueblo de Nuestra Senora de Las Dolores de Las Vegas. Many documents were cited.76 The defendant Public Service Company did not own the pueblo rights of the town and city, but acted as their agent in enabling the inhabitants to enjoy to the fullest extent the pueblo rights inaugurated by the King of Spain in the Plan of Pitic. On this major issue, the majority believed that the trial court was correct in sustaining the claim of defendant and intervenor under the pueblo rights doctrine.77 After quoting extensively from several texts and citing the chief California decisions, the majority found itself "unable to avoid the conclusion that the TO66N. Mex. at 66-71. 71 United States v.Hope Community Ditch, Equity No. 712 (D. N. Mex., 1933). W66N. Mex. at 71-76. ra66N. Mex. at 76-79. "66 N. Mex. at 71-72. 7566N. Mex. at 79-80. 7666 N. Mex. at 94-96,110-113. 7766 N. Mex. at 86. |
