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
SADLER, Justice
(dissenting).
The decision of this court on second motion for rehearing in the case of Flaska v. State, 51 N.M. 13 , 177 P.2d 174 , has ren dered futile further consideration or discussion of the issues on this appeal. Neither the late Chief Justice BICKLEY nor myself, both having disagreed with the majority opinion herein, participated in the decision mentioned in the Flaska case, 'having recused ourselves. Nevertheless, both entertained the view that, regardless of the merits of the doctrine there announced, it should be without application to pending cases because of a contrary practice long prevailing in this state as demonstrated by the decisions of this court on rehearing in the cases of State v. Armstrong, 31 N.M. 220 , 243 P. 333 ; Odell v. Colmor Irrigation & Land C.o., 34 N.M. 277 , 280 P. 398 and State v. Pate, 47 N.M. 182 , 138 P.2d 1006 , in each of which a judge or judges participated on rehearing as successor to some judge no longer on the court who had participated in rendering the original decision.
The foregoing remarks may seem superfluous in as much as the rule laid down in the Flaska case now has become the law of this state. Chief Justice BRICE, Mr. Justice LUJAN and myself as the only members of the court still remaining such who participated in the original opinion, thus alone are entitled to participate in disposing of appellee’s second motion for rehearing. What has been said by me in previous opinions filed in this case, properly classifies me as in favor of granting the motion, a result I am as helpless to accomplish as are my participating brethren to give more than minority expression to the views advanced in the annexed opinion prepared by the CHIEF JUSTICE and subscribed by Mr. Justice LUJAN. Since under the Flaska decision the motion must stand denied by operation of law, it would avail nothing for two opposing minorities on the court tó debate the merits of their respective views. Suffice it to say that such an unsatisfactory ending to a case involving issues so important is to be deplored.