Pecos Valley Artesian Conservancy Dist. v. Peters , 50 N.M. 165 ( 1945 )

The principal question is whether plaintiff has capacity to prosecute this suit. No such express power is granted, as will appear from a later reference to the statutes that authorized its being. The answer to the question will depend upon whether the power was impliedly granted.

The case was tried upon the pleadings, in which there was a meager statement of facts, entirely insufficient to support the conclusion of the majority, as reflected in the two opinions. But the majority opinion assumes a state of facts utterly erroneous, not in the record, or the briefs of the parties, or that remotely resembles the real facts and conditions that induced the legislature to enact ten separate laws for the conservation of artesian water, beginning as early as 1905. It is stated in the original opinion:

"It would seem an anomalous construction that confined the district in executing such a fundamental purpose to repairing and plugging leaky wells through which water was flowing in a small stream and yet denied it the power to enjoin the maintenance of an unlawfully drilled well tapping the basin through which water gushed in a torrent — in other words, to say the district could conserve and stop wastage by placing a finger in the leak but could not dam the flood in carrying out the same overall purpose."

This imaginary condition had for a basis allegations of fact in substance that defendant had drilled a well outside of the boundaries of the plaintiff district, with the purpose and intent of irrigating therefrom 285.6 acres of land, and that he was pumping from that well 2000 gallons of water per minute for such purpose.

These, and these only, are the simple facts alleged from which the Chief Justice has not only constructed a well "gushing a torrent" but has reduced the loss of water through leaks in well casings and otherwise, to streams that could be stopped with his finger. The statement quoted cannot be justified as figurative, because it assumed at least that the waste, including casing leaks, was infinitesimal if compared with the alleged 2000 gallons per minute pumped from the Peters well; for at the time that opinion was written this court had no information from the facts alleged in the pleadings upon which this case was tried regarding the quantity of water lost through leaks in casings, or otherwise.

Now, it having been determined that "a torrent" of water was "gushing" from the Peters well, and that all waste (including leaks from casings) was negligible, and that the owners of water rights had refused to join in legal proceedings against Peters, it was thought to be the duty of this court to prevent "chaos" and inevitable ruin in the Pecos Valley, to constitute the plaintiff the agent of the water right owners to prosecute actions involving the right to the use of water from the artesian basins against the desire of the interested parties. I do not question the authority of any water right owner to institute such legal proceedings against Peters for himself and all similarly situated; but I deny the authority of this court to interfere with that right by bestowing upon plaintiff, against the will of the water right owners, the authority to prosecute actions to try title to real property in which it has no beneficial interest or title.

The general rule is that public corporations possess and can exercise only such powers as the legislature grants by expresswords, and such additional powers as are necessarily implied from those expressly granted.

"* * * Unless authority can be found elsewhere in the statutes or the Constitution, then it does not exist; for a municipality can do no act for which authority is not expressly granted or which may not be reasonably inferred from those conferred upon it." Barker v. State, 39 N.M. 434, 49 P.2d 246, 248.

"Counties, cities and towns are municipal corporations created by the authority of the legislature, and they derive all their powers from the source of their creation, except where the constitution of the state otherwise provides. They have no inherent jurisdiction to make laws or to adopt governmental regulations, nor can they exercise any other powers in that regard than such as are expressly or impliedly derived from their charters or other statutes of the state." Town of Mount Pleasant v. Beckwith, 100 U.S. 514, 520, 25 L.Ed. 699.

"A municipal corporation, therefore, possesses no powers of faculties not conferred upon it, either expressly or by fair implication, by the law which created it, or by other laws, constitutional or statutory, applicable to it. It is a creature of law established for special purposes and its corporate acts must be authorized by its charter or other laws applicable thereto." 1 McQuillen, Municipal Corporations, 2nd Ed.Rev., Sec. 367.

Also see Atkin v. State of Kansas, 191 U.S. 207, 24 S.Ct. 124,48 L.Ed. 148; City of Chelsea v. Treasurer Receiver General,237 Mass. 422, 130 N.E. 397; and Foster v. Waco, 113 Tex. 352,255 S.W. 1104.

Such organizations are usually judicially designated "quasi-municipal corporations." Davy v. McNeill, 31 N.M. 7,240 P. 482; People v. Letford, 102 Colo. 284, 79 P.2d 274; Wheatley v. Superior Court, 207 Cal. 722, 279 P. 989.

The powers conferred on public corporations are strictly construed.

"The rule is generally stated that the scope of sovereignty delegated to municipal corporations should not be enlarged by liberal construction. The powers conferred are strictly construed, and any fair, substantial, and reasonable doubt concerning the existence of any power, or any ambiguity in the statute upon which the assertion of such power rests, is to be resolved against the corporation, and the power denied. * * *" 37 A.J., Municipal Corporations, Sec. 113.

From these authorities I conclude that the plaintiff has such powers only as have been expressly granted, and those that may be reasonably inferred from those granted. That it is the duty of this court to construe the grants of power strictly, and to resolve any fair and reasonable doubt regarding its powers against the plaintiff.

A history of the legislation for the conservation of underground water will throw some light on the legislative intent in providing for the organization of conservancy districts. It is history in this state that the first wells tapping the artesian basin in southeastern New Mexico which produced a flow of artesian water sufficient to irrigate large quantities of land, were constructed about the year of 1903. Very shortly thereafter the people began to agitate the question of the conservation of artesian water. From the legislation that followed in 1905 it may be inferred that defective casing had been used to case wells, some had not been properly set to prevent leaks from the basin into the upper strata. Wells were allowed to flow without beneficial use of the water, etc.

The legislature of 1905, Ch. 17, passed "An Act to regulate the use of artesian wells and to prevent the waste of subterranean flows of water and for other purposes." As the title shows, the subject was waste of artesian water. It was provided that artesian wells should be tightly and securely cased and capped to prevent the waste of water and such waste was declared to be a public nuisance and the owner occupying land suffering such waste was held to be guilty of a misdemeanor. Waste was defined as follows:

"Waste is defined for the purpose of this act to be the causing, suffering or permitting the water flowing in such well to reach any porous substratum before coming to the earth's surface, or to flow from such wells, unnecessarily upon any land, or directly or indirectly into any river, creek or other natural water course or channel, or into any lake or pond, or into any street, road or highway, unless it be used on lands for beneficial purposes: * * *." N.M.L. 1905, Ch. 17, Sec. 4.

The act required that artesian wells should be cased their entire depth with a good quality of casing set in the rock overlying the artesian basin.

Chapter 64, N.M.L. 1909 was entitled "An Act to regulate the use of artesian wells, storage reservoirs and ditches connected therewith, and to prevent the waste of subterranean flows of water, and for other purposes * * *." It was a comprehensive law of 32 sections, enacted to prevent waste of water from artesian wells, either above ground or in the earth above the artesian basin. Waste is defined as follows:

"Waste from artesian wells, for the purpose of this act, is defined to be the causing, suffering or permitting the water in any artesian well to reach any porous substratum before coming to the earth's surface, or to flow from such well unnecessarily upon any land, or directly into any river, creek or other natural water course or channel, or into any lake or pond, or into any street, road or highway, unless to be used on land for beneficial purposes under the constant supervision of the person using such water or his employee: * * *." N.M.L. 1909, Ch. 64, Sec. 5.

The act is much too long to more than state its purposes generally, which are: To prevent waste of artesian water caused by defective casing; prohibiting the flow of water not to be beneficially used; prohibiting the use of wasteful reservoirs and ditches; prescribing the weight of casing; an artesian well board is provided for and its duties prescribed; limitation is made on the use of water; and repairs of leaky wells, ditches and reservoirs are required.

Chapter 81 of the Laws of 1912 is very similar to the act of 1909. The principal addition is authority given the artesian well supervisor to stop waste from leaky reservoirs and wells, and to plug wells when necessary to prevent waste; all at the expense of the land owner.

The artesian well law was re-enacted in 1925, Ch. 101, in substantially the same language as the act of 1912 and the purposes were precisely the same. This act was amended in 1927 in some particulars, Ch. 149, but the purposes of the act of 1925 and the amendments of 1927 were to prevent the waste of artesian water, as waste is defined in the various conservation acts.

These laws were not changed again until 1931. In that year there was enacted the Conservancy District Law, Ch. 97, the law declaring artesian water to be public water, Ch. 131, and Ch. 70, the title to which is as follows:

"An Act Appropriating Money for the Repair and Plugging of Artesian Wells in the Pecos Valley Artesian Water Basins Situated in Chaves and Eddy Counties Where Said Wells are Found to be Wasting the Waters From Said Underground Reservoirs, and Providing for the Supervision of Said Work by the State Engineer."

This act contains the following preamble:

"Whereas, the boundaries of the Artesian Reservoirs, situated in Chaves and Eddy Counties in the Pecos Valley extending southward from above the city of Roswell, have been scientifically and definitely determined; and

"Whereas, all of the waters of said reservoirs have been beneficially appropriated and have been made available by the drilling of several hundred artesian wells, many of which have been in use for a long period of time, and because of the disintegration, or rusting of the casings in many of the same the waters which would otherwise be stored in said reservoirs are finding outlet to the surface through the upper strata of the earth or flowing into porous sub-strata where they cannot be used and thereby materially diminishing the water supply and depleting and destroying the value of the lands irrigated therefrom; and

"Whereas, many of said wells have been abandoned and through said condition the waters of said reservoirs are being wasted and depleted and it is necessary, in order to permanently establish and conserve the water of said reservoirs for irrigation purposes, that all such wells be repaired or plugged."

The legislature by this act appropriated $20,000 "* * * for the purpose of causing artesian wells in the Pecos Valley Artesian Basin found by the State Engineer to be leaking and wasting the waters from said reservoirs to be plugged or repaired, so as to preserve the permanency of the reservoir or reservoirs and to prevent further waste therefrom."

This was the status of the artesian water conservation law in New Mexico at the time the legislature enacted the laws under which the plaintiff was incorporated. The legislature at the time was informed from the laws it had enacted beginning in 1905, that from the discovery of the large water supply in the artesian basin until that time there had been a great waste of artesian water and that this waste increased with the years, so that in 1931 the causes of waste, as they appear from these laws, were, (1) a larger flow of water from wells than could be beneficially used; (2) wells that were defectively cased so that the water would pass around the casing into the strata above the impervious rock covering it; (3) waste from poorly constructed reservoirs and ditches; (4) the failure to use casing of sufficient strength to hold the water, and (5) the disintegrating or rotting of casing from natural causes.

It is evident from the preamble I have quoted from Ch. 70, N.M.L. 1931 that the fifth cause of waste had become so serious a problem as that it endangered the water supply of the artesian basin; that it had become necessary to plug or repair leaky and abandoned wells to preserve the permanency of the artesian water supply. To conserve this water the legislature appropriated $20,000 of state money to be used to pay for the plugging of leaky and abandoned wells.

This court can take judicial notice of the laws of nature and the results of time; and therefore of the fact that iron casing in artesian wells will disintegrate in time, so that after water by its pressure is forced through weak places in the pipe into the strata above the basin, the pressure and disintegration will continue until the entire flow is lost.

The express powers granted to appellant are contained in the original conservancy district act and amendments thereto, Ch. 97 N.M.L. 1931; Ch. 98, N.M.L. 1941, Secs. 77-1301 to 77-1324 inclusive, N.M.Comp. 1941; and an act relating to artesian wells, Ch. 43, N.M.L. 1935, Secs. 77-1201 to 77-1212, N.M.Comp. 1941. All of the parts of these acts by which powers are granted to conservancy districts, or which make reference to grants of power, or refer to the purpose of the legislation, are the following as they appear in the 1941 compilation:

"The purpose of this act is to provide for the organization of artesian conservancy districts to conserve, where necessary, the waters in any artesian basin or basins within the state, the boundaries of which have been scientifically determined by investigations, and where such waters have been beneficially appropriated for private, public, domestic, commercial or irrigation purposes, or otherwise." Sec. 77-1301.

"* * * Upon declaring the district organized, the same shall be a political subdivision of the state of New Mexico, and a body corporate with all the powers of a public or municipal corporation; shall have power to sue and be sued, to incur debts, liabilities and obligations, to exercise the right of eminent domain and of taxation and assessment as herein provided and to do and perform all acts herein expressly authorized, and all other acts necessary and proper for carrying out to all intents and purposes the objects for which the district was created, and for exercising the powers with which it is invested. * * *" Sec. 77-1311.

"After the formation of any artesian conservancy district, it shall be the duty of the board of directors from year to year to outline a plan or program of water conservation and administration, and they shall make an estimate of the cost of administration, equipment and improvements necessary to carry out such program from year to year, when the cost thereof is to be paid by tax levies.

"In carrying out any such plan or program the board of directors shall have authority to cooperate with the state engineer and the United States geological survey, where such cooperation is offered.

"The program to be carried out and the improvements to be made and the equipment to be purchased shall be designed to accomplish the objects and purposes for which the district was created, and may include the plugging of all wells within the district found by tests to be materially leaking or wasting any waters included in the district. The directors may proceed to carry out the improvements so outlined in such manner as may be deemed for the best interest of all concerned, and may enter into any contracts or do or perform any act or thing necessary or advisable to carry out to all intents and purposes the objects and purposes for which the district was formed, and shall have the right of ingress and egress at all reasonable times to all wells within the district for the purpose of making leakage tests, and otherwise determining that such wells are properly equipped and are being used so as to conserve the waters included in the conservancy district.

"All wells included in the district found to be leaking or wasting such waters, are hereby declared to be a public nuisance, and the directors of the district and those under their authority shall have the right, power and authority to go upon the lands upon which any such well is located to abate such nuisance by plugging or repairing any such well." Sec. 77-1318.

It is provided by Sec. 77-1319 that the directors shall make up a tax roll including all property in the district and from the value thereof to "determine the tax levy to be made against the same to produce the necessary revenue to make the improvements needed in the district," as provided by Sec. 77-1319.

"Wherever any artesian conservancy district has heretofore been organized or may hereafter be organized, under and pursuant to Chapter 97 of the N.M. Session Laws of 1931, or amendments thereto, such conservancy district may be given the same rights, power and authority as to all underground waters within the boundaries of such conservancy district as have been or may hereafter be conferred upon such district by said legislative act, and amendments thereto, as to artesian waters; provided, however, the boundaries of such underground waters have been reasonably ascertained and the same, or a substantial portion thereof, have been beneficially appropriated * * *." Sec. 77-1322.

"Any artesian conservancy district which has heretofore been organized, or may hereafter be organized, as provided by law, shall in addition to the powers granted to such districts have the right, power and authority to protest or object to any application made to the state engineer to appropriate any waters included within the boundaries of such conservancy district which may be subject to appropriation as provided by law, and to protest or object to any application to the state engineer to change the location of any well or to change the use of waters for any purpose other than that for which originally granted, where it is determined by resolution of the board of directors of such district that the granting of such proposed application would interfere with any existing water rights or program of such conservancy district for the conservation of the waters sought to be appropriated, and such district shall have the right to appeal to the district court from the decision of the state engineer within the time and manner provided by law for appeals from such decisions." Sec. 77-1324.

The artesian well act was amended in 1935 and appears as Article 12, title Artesian Wells, in the 1941 compilation, Secs. 77-1201 to 77-1212.

"All artesian waters which have been declared to be public waters shall be under the supervision and control of the state engineer, as provided by this act, but where artesian conservancy districts have been duly organized pursuant to chapter 97 of the N.M. Session Laws of 1931 and acts amendatory thereof, such districts shall have concurrent power and authority with the state engineer to enforce the regulatory provisions, as herein provided, in so far as the waters to be conserved and controlled by the respective districts are affected. * * *." Sec. 77-1202.

"The state engineer shall prescribe and enforce reasonable rules and regulations consistent with the terms of this act governing the drilling, casing, repairing, plugging, and abandonment of artesian wells, and, where necessary, may vary such rules and regulations with the varying conditions in the different artesian basins; Provided, however, that the state engineer shall first consult with the board of directors of the artesian conservancy district in any such artesian basin to the end that such rules and regulations shall properly meet the requirements of such artesian basin. * * *." Sec. 77-1204.

"The owner of any artesian well which is being beneficially used or which under existing water rights may be beneficially used, who causes, suffers or permits the waters therefrom after coming to the surface of the earth to waste as herein defined, shall be guilty of a misdemeanor. Such waste is also hereby declared to be a public nuisance, and in the event of the failure or refusal of the owner of the well to abate the same, within ten (10) days from receipt of notice by registered mail, return receipt requested, from the state engineer, artesian well supervisor, or artesian conservancy district, if the well is situated therein, such officials having jurisdiction may abate such nuisance in a summary manner without further notice by properly fitting the well with necessary valves or other devices or doing whatever shall be necessary to control the flow of water therefrom and prevent such waste, and the cost thereof shall be a lien against the land upon which the well is situated, * * *." Sec. 77-1208.

"* * * It shall be the duty of the artesian well supervisor and officials of any artesian conservancy district or agents or employees designated for that purpose to inspect all reservoirs and main ditches and laterals connected therewith as to construction, both as to workmanship and materials used, and to determine the losses therefrom by seepage and evaporation. * * *" Sec. 77-1210.

"* * * The state engineer, artesian well supervisor, or any director of an artesian conservancy district or other officer charged with the enforcement of this act, may file a complaint with the proper official against anyone for the violation of any of the provisions hereof." Sec 77-1212.

The definition of waste, Sec. 77-1206, is substantially the same as that of the artesian well act of 1927.

It is then provided that if a reservoir shall show a loss of twenty percent that it shall not be used in its defective condition and any use thereof "shall be deemed a misdemeanor, punishable as provided in this act, and also a public nuisance, and the state engineer, artesian well supervisor or artesian conservancy district having jurisdiction, may abate such nuisance in a summary manner." Sec. 77-1210.

The general power granted to conservancy districts is the power to conserve artesian water.

The word conserve has a number of meanings. It is defined as follows: "To keep in a safe or sound state; to save; to preserve from change or destruction." Webster's International Dictionary. "To keep in a safe or sound state, to save; preserve from loss, decay, waste or injury." Webster's 20th Century Dictionary.

It is obvious that the legislature did not mean that the water should be kept in a safe or sound state, or that it should be saved or that it was to be preserved from change. The only definition that could apply when the element to be conserved is water held for beneficial use is "to preserve from loss or waste." Irrigation water does not change, nor is it destroyed. It does not decay nor is it subject to injury.

That this was the meaning intended by the legislature is shown by a series of acts passed for the conservation of artesian water, as I have shown; also by the specific powers granted to plaintiff, each of which is authority to prevent waste as waste had been defined in every act theretofore passed. The specific powers granted by the statutes quoted are as follows:

To make leakage tests; to plug or repair leaking wells, Sec. 77-1318; concurrent power with the state engineer to enforce rules and regulations of the state engineer governing the drilling, casing, repairing, plugging and abandoning artesian wells, Secs. 77-1202 and 77-1204; to prevent waste of artesian water after it comes to the surface of the earth, Sec. 77-1208; to inspect reservoirs and ditches and prevent waste therefrom, Secs. 77-1206 and 77-1210; and to enforce the conservation of water by filing criminal complaints, Sec. 77-1212.

These are exactly the powers conferred upon the various state agencies for the conservation of artesian water by laws passed prior to the enactment of the conservancy district act.

The legislative history of water conservation shows beyond a doubt that the waste of artesian water had become so menacing, particularly that from leaky wells, that the legislature justified an appropriation of $20,000 of public money to be used for plugging such wells by saying that

"* * * through said condition (waste from leaky wells) the waters of said reservoirs are being wasted and depleted and itis necessary in order, to permanently establish and conservethe water of said reservoirs for irrigation purposes, that all such wells be repaired or plugged." (My emphasis.)

The legislature did not appropriate $20,000 out of public funds and authorize the expenditure of many thousands more to be collected as annual taxes, to stop a mere "trickle" of water, so insignificant that the pressure of a finger would stop it.

I have hesitated to refer to the history and public knowledge of the people of the Fifth Judicial District regarding the waste of artesian water over a period of more than forty years; but I assume if there is doubt about our judicial knowledge of these facts, that it is not out of place in answer to the assertion that the loss of water through leaky well casings was insignificant, or a mere "trickle."

Through the public press, word of mouth and public records of scientific investigation made at the expense of the United States and the state, it has become common knowledge in the Fifth Judicial District at least, that to 1926 there had been drilled about 1500 artesian wells in the Pecos Valley; that of these, the plaintiff has plugged nearly one half, because the waste of water through defective or disintegrated casings was so great that it had become a menace to the artesian water supply. It may be assumed that many more wells should be plugged, and that the casing of every artesian well will rust out in the course of time, and its flow of water will ultimately be lost in the upper strata unless plugged. Many new wells have been drilled to replace those plugged, to preserve existing water rights.

Scientific investigation of the artesian water supply in the Pecos Valley was made by Albert G. Fiedler of the U.S. Geological Survey, beginning in 1925. To assist in securing data for conserving the waters of the artesian basin this state appropriated the sum of $5000 to be used by the state engineer in connection with the work of the U.S. Geological Survey. Voluminous reports were made in 1926, 1928, 1930 and 1933, which are public records in the office of the state engineer. In one of these reports it is stated, among other things:

"Underground leakage from wells may in some sections form alarger portion of the draft upon the artesian reservoir and without proper steps to remedy such losses the artesian supply may be completely dissipated." (My emphasis.)

The loss of water through leaky casings had reached, not millions, but billions of gallons annually at the time the plaintiff was organized to conserve this water. This mere "trickle" was depleting the water supply and seriously injuring a great industry.

The contention of the majority is that the power to "conserve" artesian water granted to plaintiff, constitutes it the agent of all the water right owners of the district to prosecute suits to determine title of claimants to the right to use water from wells drilled outside the boundaries of plaintiff district; and I assert that its authority is limited to the prevention of waste of artesian water.

The language of the statute should be construed in the light of its historical background, including the history of artesian water conservation laws enacted by the New Mexico legislature. Storen v. Sexton, 209 Ind. 589, 200 N.E. 251, 104 A.L.R. 1359; Matson Navigation Co. v. United States, 284 U.S. 352,52 S.Ct. 162, 76 L.Ed. 336; 50 A.J. "Statutes" Sec. 306. These laws, whether superseded or not, may be looked to for assistance in interpreting this statute. Prior to 1931, the legislature had enacted five conservancy statutes, each having for its purpose the prevention of waste of artesian water. In 1931 three conservancy laws were enacted, among them the act under which plaintiff was organized. At that time the artesian well act of 1925 as amended in 1927, was in force. These four acts were in force, and are in pari materia and should be construed as one act. Not a single power was expressly granted to any authority in the nine conservancy acts that did not have for its purpose the prevention of waste of artesian water and that alone. I have referred to these conservancy laws, and nothing further on that subject need be added. It has been said "But words are inexact tools at best and for that reason there is wisely no rule of law forbidding resort to explanatory legislative history no matter how `clear the words may appear on "superficial examination."'" Harrison v. Northern Trust Co., 317 U.S. 476, 63 S.Ct. 361, 363,87 L.Ed. 407; United States v. American Trucking Ass'ns,310 U.S. 534, 60 S.Ct. 1059, 84 L.Ed. 1345.

Of course the legislative intent is the law, United States v. Hunt, 81 U.S. 550, 20 L.Ed. 739; Bates v. Brown, 72 U.S. 710,18 L.Ed. 535; "but in cases admitting of a doubt, the intention of the lawmaker is to be sought in the entire context of the section, statutes or series of statutes in pari materia," Atkins v. Fiber Disintegrating Co., 18 Wall. 272, 21 L.Ed. 841; Hite v. Hite, 301 Mass. 294, 17 N.E.2d 176, 119 A.L.R. 517; The Conqueror, 166 U.S. 110, 17 S.Ct. 510, 41 L.Ed. 937; Hennessy v. Walker, 279 N.Y. 94, 17 N.E.2d 782, 119 A.L.R. 1029; Lambert v. Board of Trustees of Public Library, 151 Ky. 725, 152 S.W. 802, Ann.Cas. 1915A, 180; 50 A.J., Statutes, Sec. 349, and single words with more than one meaning should not be isolated from all the context and statutes in pari materia to give a legislative act an arbitrary meaning. Demaree v. Scates, 50 Kan. 275,32 P. 1123, 20 L.R.A. 97, 34 Am. St.Rep. 113; In re Stryker, 158 N.Y. 526, 53 N.E. 525, 70 Am.St.Rep. 489; Harrison v. Northern Trust Co., supra.

"* * * Indeed, it is improper, in construing a statute to take a few words from its context, and, with them thus isolated, attempt to determine their meaning. Moreover, court may not, in order to give effect to particular words, virtually destroy the meaning of the entire context. In some cases, the rule that the meaning of statutory terms is determined by their context is recognized by statute." 50 A.J., Statutes, Sec. 247.

The majority opinion is built upon an unauthorized meaning arbitrarily given to the word "conserve," without regard to the canons of construction that should be resorted to if the legislative intent is in doubt.

A statute of doubtful meaning should be construed in the light of the attendant conditions and time in which it is enacted. Holy Trinity Church v. United States, 143 U.S. 457, 12 S.Ct. 511,36 L.Ed. 226; United States v. Stewart, 311 U.S. 60, 61 S.Ct. 102,85 L.Ed. 40; State ex rel. Wheat v. Moore, 154 Kan. 193,117 P.2d 598; 50 A.J., Statutes, Sec. 237.

The attendant conditions at the time the conservation district law was passed in 1931 are shown by it and acts in pari materia, without resort to other contemporaneous history. The preamble of Ch. 70, N.M.L. 1931, passed by the same session of the legislature, stated that because of the disintegration of casings, leaks were "materially diminishing the water supply and depleting and destroying the value of the lands irrigated therefrom". It was further stated:

"Whereas, many of said wells have been abandoned and through said condition the waters of said reservoirs are being wasted and depleted and it is necessary, in order to permanently establish and conserve the water of said reservoirs for irrigation purposes, that all such wells be repaired or plugged."

Those were the attendant conditions as the legislature viewed them when the act was passed. It, and those acts in pari materia, were emergency acts passed to save the farming industry of the Pecos Valley, or the legislature so considered them.

It was thought, no doubt, that the $20,000 appropriation would soon be expended, but that casings would continue to disintegrate, and to provide a permanent remedy the conservancy district act was passed a few days later. Under it the plaintiff was authorized to levy a tax to make improvements for conserving water. Ch. 97, N.M.L. 1931.

It was never contemplated by the legislature that a well would be drilled outside the bounds of a conservancy district organized under this law as the first two sections of the act conclusively show. They are as follows:

"The purpose of this act is to provide for the organization of artesian conservancy districts to conserve, where necessary, the waters in any artesian basin or basins within the state, the boundaries of which have been scientifically determined by investigations, and where such waters have been beneficially appropriated for private, public, domestic, commercial or irrigation purposes, or otherwise." N.M.Sts. 1941, Sec. 77-1301.

"Any artesian conservancy district organized pursuant to the provisions of this act shall include all lands overlying any such artesian basin and any land outside of the boundaries thereof upon which waters from such basin are being used, either for private, public, commercial, domestic or irrigation purposes, or otherwise. * * *" N.M.Stats. 1941, Sec. 77-1302.

Before a district could be organized the boundaries of the artesian basin or basins must have been scientifically determined; and then the district was required to include within its boundaries "all lands overlying any such artesian basin," and land outside upon which the water from the basin was used. This outside land necessarily included only land on which water from wells in the district could be used.

The mischief to be remedied was the waste of water, and every specific power granted to any authority by any of the nine conservancy acts was authority to prevent waste of artesian water, and that only.

It is the general rule that municipal corporations, in the absence of a grant otherwise, have no extra-territorial jurisdiction or authority. Not only is there an absence of such grant to artesian conservancy districts, but there are specific statements in the act itself, and other acts, showing that the general rule was intended to apply to plaintiff.

By Ch. 98, N.M.L. 1941 conservancy districts were given jurisdiction over underground waters other than artesian. It was provided by Sec. 1:

"Conservancy District may be given the same rights, power and authority as to all underground waters within the boundaries ofsuch Conservancy District as have been or may hereafter be conferred upon such District by said Legislative Act (Ch. 97 N.M.L. 1931), and amendments thereto, as to Artesian waters." (My emphasis.)

This clearly shows the legislature intended that the authority of corporations organized under the act of 1931 did not extend beyond the boundaries of the district.

By Sec. 3 of the act of 1941 supra, it is provided that artesian conservancy districts shall have the power to protest or object to any application made to the state engineer to appropriate any waters included within the boundaries of suchconservation district. The artesian well act of 1925 was re-enacted with some changes in 1935, by Ch. 43, N.M. Laws of that year.

By Sec. 7 of that act the conservancy district is given authority to abate any well located in that district that is wasting water.

By Sec. 8 of that act a conservancy district is authorized to prevent waste of water that comes to the surface of the earth "ifthe well is situated" in the district; and by Sec. 10 the state engineer, artesian well supervisor, or "Conservancy Districthaving jurisdiction" may abate as a nuisance ditches and storage reservoirs that are wasting more than 20% of the appropriated water.

The original act of 1931 provided that the district should, from year to year, outline a program of water conservation, estimate the cost of administration, equipment, and improvements necessary therefor; which it is provided, shall be paid for by a tax levy on the property within the district; and may include the plugging of wells within the district. See Sec. 77-1318, copied herein, and Sec. 77-1319.

Every specific grant of power limits the activities of the district to the prevention of waste from wells within its boundaries.

It is a general rule of construction of statutes that when general and specific provisions of a statute are associated therein, that the general words are restricted to a sense analogous to the specific provisions, and may be regarded as thereby limited. Re Stryker, supra.

The plaintiff cites certain irrigation district cases which I discussed in my original dissent. None of these cases support the plaintiff's contention. Ordinarily such districts are under contract to impound and deliver water to their water users, and therefore have a special interest therein.

Plaintiff's reliance, however, is on the case of Coachella Valley County Water District v. Stevens, 206 Cal. 400,274 P. 538, 540, the facts of which are almost identical with those in this case; but the statutes under which the California district was organized are entirely different from the laws here involved. There is no authority, specific or general, in the New Mexico statutes which authorizes the plaintiff to prosecute this suit, whereas the California district was granted specific authority to prosecute suits to try title to the use of water.

The following quotation from the opinion of the California court in the Coachella Valley case should satisfy anyone that it is not authority here:

"* * * In this connection it is claimed that it is not shown that there are any lands or other property rights owned by the district which will be injured by the alleged threatened acts of the defendant, and that therefore the defendant is not being sued by the real party or parties in interest. It must be conceded that there is an absence in the complaint of any allegation showing that title to any land or other property is held by the district as such; consequently the authority to maintain the action must appear in the act under which the district was organized, or under that act as supplemented by other statutes bearing on the subject. Otherwise, it has no legal capacity to maintain the action. * * *

"Section 1 of the act provides that `a county water district may be organized and incorporated and managed as herein expressly provided and may exercise the powers herein expressly granted or necessarily implied.' Section 12 enumerates the powers of the district. Subdivision 2 of that section provides that the district shall have power `to sue and be sued, except as otherwise provided herein or by law, in all actions and proceedings in all courts and tribunals of competent jurisdiction.' Subdivision 6 of that section as originally enacted provided that the district should have power `to store water for the benefit of the district, and to conserve water for future use and to appropriate, acquire and preserve water and water rights and for this purpose to sue, intervene and compromise, in the name of the district, and assume the costs of litigation involving the ownership of waters or water rights within the district and those used and useful for the purposes of the district or of any of the lands situated therein.' In 1923 said section 12 was amended. Stats. 1923, p. 312. By the amendment, subdivision 6 was re-enacted in substantially the original form, except that the following was added to the same subdivision, relating to the powers of the district: `To commence, maintain, intervene in, defend and compromise actions and proceedings to prevent interference with or diminution of the natural flow of any stream or natural subterranean supply of waters used or useful for any purpose of the district or a common benefit to the lands within the district or its inhabitants; and to commence, maintain and defend actions and proceedings to prevent any such interference with the aforesaid waters as may endanger the inhabitants or lands of the district.'"

The Supreme Court of California concluded that the district wasexpressly authorized by statute to bring the suit and therefore under the California law it could do so as agent of the water users. It is said in the majority opinion "It is true that the language conferring statutory authority to sue in the California case is more explicit than any to be found in the act before us." This seems to assume that there is some explicit statutory authority in New Mexico authorizing this suit. No such authority is cited, and there is nothing stated, generally or specifically, in the statutes that indicates the district's authority extends further than the prevention of waste. The only real parties in interest are the water users. The water in question is not wasted, the record shows that it is applied to a beneficial use in irrigating crops. It is obvious that if specific authority had not been granted to the California district to prosecute the suit in the Coachella Valley case, the Supreme Court of that state would have held against the district. It so states in the opinion. We have substantially the same statute in New Mexico. It is as follows:

"That every action shall be prosecuted in the name of the real party in interest; but an executor, administrator, guardian, trustee of an express trust, a party with whom or in whose name a contract has been made for the benefit of another, or a partyauthorized by statute may sue in his own name without joining with him the party for whose benefit the action is brought; and when a statute of the state so provides, an action for the benefit of another shall be brought in the name of the state." 1941 Comp. § 19-101, Rule 17(a).

This is a copy of the Federal Rules of Civil Procedure, rule 17(a), 28 U.S.C.A. following section 723c, but we have no statute which authorizes the plaintiff to prosecute a suit in its own name, the purpose of which is to try rights to the use of artesian water. The district itself has no title or right to the use of the water of the artesian basin. It does not and cannot own water rights. It is not a real party in interest, and no statute authorizes it to bring this suit. The majority opinion confers upon plaintiff powers that only water users are entitled to exercise when and as they please.

The decree of the district court was correct and appellee should be granted a rehearing.