State ex rel. Black v. Aztec Ditch Co.

Citations

• 25 N.M. 590
• 185 P. 549

Syllabus

<p>SYLLABUS BY THE COURT</p> <p>1. In an action of mandamus to require officers of a community ditch to give to relator a specified portion of the waters carried by the ditch, the rights and priorities of the consumers can not be adjudicated, and the individual water users are not necessary or proper parties to the suit. If the rights of the consumers have not been adjudicated or fixed by agreement or contract, and are undetermined and unknown, mandamus will not lie, but the parties must first secure an adjudication of the rights of the consumers or water users.</p> <p>P. 595</p> <p>2. Where it appeared from the application for the writ that the rights have been fixed by contract and such rights are known and determined, and the answer of the respondents admits such facts, the writ is properly granted, compelling the commissioners to give to relator the water to which he is entitled. P. 596</p> <p>á. The rig'hts of individual water users cannot be impaired in an action to which they are not made parties and-given their day in court. P. 5 9 6</p> <p>4. Community acequias are public acequias within the meaning of section 5731, Code 1915. P. 597</p> <p>5. Sections 5744, 5759, 5763 and 5765, Code 1915, construed. Held that under these sections it is the duty of the owner of land irrigated by water carried through a community acequia, to labor on the ditch in the maintenance and repair thereof in proportion to the land irrigated; and it is the duty of all owners of land under such ditch to assist in the maintenance and répair of the entire ditch; that a by-law of such community corporation which required all water users under such a ditch system to contribute towards the repair of the ditch in a manner other than that .provided by statute is null and void. P. 597</p> <p>6. A by-law of a private corporation or an ordinance adopted by a municipal corporation in order to be valid must be consistent with the law of the land, and a by-law or ordinance in contravention of a st