holding Article XVI, Section 2 of the New Mexico Constitution “is only declaratory of prior existing [New Mexico] law, always the rule and practice under Spanish and Mexican dominion” (internal quotation marks and citation omitted)
How later courts described this case
- holding Article XVI, Section 2 of the New Mexico Constitution “is only declaratory of prior existing [New Mexico] law, always the rule and practice under Spanish and Mexican dominion” (internal quotation marks and citation omitted)
- holding that “this constitutional provision is only ‘declaratory of prior existing law,’ always the rule and practice under Spanish and Mexican dominion”
- recognizing that appropriation of public waters began as a local mining custom which the United States government was bound to protect
- stating that Congress’s confirmation of Spanish or Mexican land grants did not restrict the State’s regulation of public waters
Written by the judges who cited it.
The opinion
BICKLEY and SADLER, Justices
(dissenting).
The majority, seemingly not quite satisfied to rest the result declared on what was said in their former opinion, have put forward additional grounds considered by them as fortifying the position taken. In -our view, the new matter written in disposing of the motion for rehearing merely represents confusion worse confounded. The extremity to which the majority are driven to find supporting argument is witnessed by the effort to impair what this • court said long ago in Beals v. Ares, 25 N.M. 459 , 185 P. 780 , upon the status of the common law in our jurisprudence, for nearly thirty years regarded as a virtual ■ chart and compass in the field occupied by the common law.
We are satisfied with what we have written in our former dissents. We there pointed out the fallacy in the argument advanced, as well as danger to the security of property rights involved, in the course embarked upon by the majority opinion. It is no answer to say that this invasion of a birthright of Anglo-Saxon jurisprudence does not represent the first encroachment. That frequently affords the explanation, .although it furnishes no justification, for the denial of a right long cherished and deemed secure.
We reaffirm our dissent.