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Show PUEBLO WATER RIGHTS IN NEW MEXICO 167 later, during which period the municipality may never have used the water or even asserted the right to a preferential use. The Matter of Public Welfare The opinion of the court in the original Cartwright case specifically raised a question of public policy, and then proceeded, in the author's opinion, to reach an anomalous conclusion. It was said that when a colonization pueblo was established there were no questions of priority of use of water, because the pueblo was located in unoccupied territory (but see Judge Federici's assertion that this statement was a "fatal factual error," noted earlier under "The Original Case"); that water formed the lifeblood of the community not only at its origin but as it expanded from a handful to thousands of families, and that in the process of growth and expansion, the founders of the pueblo carried with them the torch of priority so long as there was water to supply the lifeblood of the expanded community. The next statement appears to have formed the ultimate conclusion of the New Mexico Supreme Court with respect to the pueblo rights doctrine.89 There is present in the doctrine discussed the recognizable presence of lex suprema, the police power, which furnishes answer to claims of confiscation always present when private and public rights or claims collide. * * * So, here, we see in the Pueblo Rights doctrine the elevation of the public good over the claim of a private right. In the author's opinion, the anomaly of this attempted justification of the adoption of the pueblo rights doctrine on the ground of lex suprema and elevation of the public good over the claim of a private right lies in the court's apparent disregard of the existence and growth of communities and individual holdings along New Mexico streams during the long period that ensued before the court finally declared itself. Specifically, granted that settlers concentrated at chosen points when the pueblos were established, this was followed by more widely scattered developments by groups or even individuals. Among these settlements, priorities of appropriation and actual use of water were established under Territorial and State laws which purported to continue appropriation methods followed under Mexican sovereignty, not to initiate a new system. The pueblo rights doctrine became stare decisis in California before any such claim of right was even considered in New Mexico. The first case in which the New Mexico Supreme Court considered such a claim was in 1914, the second in 1937-38, and the third case-the first actually to adopt and apply the doctrine-in 1958, which was 110 years following the cession from Mexico. In 'Cartwright v. Public Serv. Co. ofN. Mex., 66 N. Mex. 64, 85, 343 Pac. (2d) 654 (1958). |
